THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

Gift  of 
Lenoer-Moss  Co. 


A  TREATISE 


ON  THE  LAW  OP 


MUNICIPAL  CORPORATIONS 


BY 

HOWARD  S.    ABBOTT 

OF  THE  MINNEAPOLIS  BAR 

LATE  SPECIAL  MASTER  IN  CHANCERY  UNION   PACIFIC  RAILROAD   RECEIVERSHIP. 

MASTER  IN   CHANCERY   U.  8.  CIRCUIT  COURT:  LECTURER  ON   PUBLIC 

AND    PRIVATE    CORPORATIONS  AND  CIVIL  LAW. 

UNIVERSITY  OF  MINNESOTA 


IN  THREE  VOLUMES 


VOL.  I 


ST.  PAUL: 
KEEFE-DAVIDSON  COMPANY 

1905 


COPYRIGHT,  1905, 

BY 
HOWARD  S.  ABBOTT. 


PREFACE. 


The  subject  of  the  present  work  is  considered  by  the  author  one 
of  great  importance  at  the  present  time.  To  counteract  the  mod- 
ern tendencies  of  governmental  agents  in  exercising  powers  other 
than  those  strictly  pertaining  to  their  character,  through  the  con- 
struction of  many  public  works  and  the  ownership  and  main- 
tenance of  enterprises  usually  considered  private  in  their  nature, 
requires  an  accurate  and  thorough  knowledge  of  their  true  char- 
acter and  legal  capacities.  The  extent  and  character  of  their  con- 
trol over  public  property,  their  power  to  incur  indebtedness  and 
to  issue  negotiable  securities,  their  right  to  own  and  operate  public 
utilities,  are  questions  of  the  deepest  personal  concern  to  everyone. 
The  need  of  a  comprehensive  and  modern  work  treating  of  these 
and  many  allied  questions  with  a  reference  to  the  latest  adjudi- 
cated cases  is  regarded  as  a  justification  for  the  publication  of  the 
present  volumes. 

Particular  attention  has  been  given  to  those  subjects  connected 
with  the  exercise  of  municipal  powers  which,  in  the  opinion  of  the 
author,  are  of  the  present  and  greatest  relative  importance. 

An  effort  has  been  made  to  state  in  the  text,  concisely  and  ac- 
curately, the  general  principles  applicable  to  a  stated  question  and 
to  give  in  the  notes  a  reference  to  the  cases  considering  the  sub- 
ject under  which  they  are  cited  with,  in  many  instances,  an  apt 
quotation  from  the  decision  of  the  court.  This  particular  feature, 
it  is  to  be  hoped,  will  prove  of  great  assistance  to  those  consulting 
the  work  and  not  having  at  hand  the  report  from  which  the  quo- 
tation is  taken.  An  exhaustive  examination  and  citation  of  the 
authorities  has  been  made,  and  an  index  has  been  prepared  un- 
usually full  and  complete.  The  author  trusts  that  his  work  will, 
after  more  than  casual  examination  and  use,  merit  the  approba- 
tion of  the  profession. 

H.  S.  A. 

Minneapolis,  Minn.,  August  3,  1905. 


670708 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
INTRODUCTORY   AND  DEFINITIONS. 

§  1.  Corporations  defined  and  classified. 

2.  The  classes  further  distinguished. 

3.  Quasi  public  corporations  defined. 

4.  Public  and  private  corporations  distinguished. 
6.  Public  corporations  classified. 

The  state  as  a  corporation. 

6.  Definition  of  a  public  corporation. 

7.  Definition  of  a  municipal  corporation. 

8.  Public  quasi  corporations  defined  and  distinguished  from  munic- 

ipal. 


CHAPTER  II. 

CORPORATE  LIFE  AND  EXISTENCE. 

[.     CREATION  AND  DISSOLUTION  OF  CORPORATIONS. 

§  9.  The  power  to  create  a  public  corporation. 

10.  As  existing  in  the  national  government. 

11.  The  states  and  their  power  to  create. 

12.  The  exercise  of  the  power. 

13.  Conditions   precedent;    population. 

14.  Conditions  precedent;    area  and  physical   characteristics. 

15.  Mode  of  creation. 

By  prescription. 

16.  By    implication. 

.17.     By  affirmative   action. 

18.  Petition  and  notice. 

The  petition. 
The  notice. 

19.  The  election. 

20.  Subsequent  official  action. 

21.  Incorporation  without  an  election. 

22.  The  charter  of  a  public  corporation  and  its  legal  nature. 


VJii  TABLE  OF  CONTENTS. 

23.  Rules  of  construction. 

24.  The  charter  considered  as  evidence. 
26.    Acceptance. 

26.  Distinction  between  a  public  quasi  and  a  municipal  corporation 

in  this  regard. 

27.  Amendment  of  the  charter. 

28.  By  implication  or  indirection. 

29.  Effect  of  amendments. 

30.  Repeal  of  charter. 

31.  Effect  of  repeal. 

32.  Corporate  existence,  and  the  doctrine  of  collateral  attack. 

33.  The  dissolution  of  the  corporation  and  its  effects. 

34.  Forfeiture  of  charter. 

II.  TERRITORIAL  CHANGES  AND  THEIR  EFFECT. 

§  35.  Boundaries;    their  enlargement. 

Other  necessary  acts  and  proceedings. 

36.  Location  or  character  of  territory  annexed. 

37.  Petition  for  annexation. 

38.  Notice  necessary. 

39.  Objections  to  annexation. 

40.  Official  declaration  and  right  of  appeal. 

41.  Effect  of  annexation  upon  ihose  concerned. 

42.  Division  of  public  corporations  and  the  authority. 

43.  Character  of  the  district  divided  or  disconnected. 

44.  Mode  of  division,  with  official  declarations. 

45.  Effects  of  annexation  or  division  upon  public  property  and  lia- 

bilities. 

46.  Division  or  adjustment  of  debts  and  liabilities. 

47.  The  legal  authority;  where  existing. 

48.  Agency  for  apportionment. 

49.  Character  or  form   of  indebtedness. 

50.  Division  of  assets. 

61.    Agency  for  division  of  assets. 

III.  CORPORATE  NAME  AND  BOUNDARIES. 

§  52.  Existence  of  a  public  corporation. 

53.  Name  of  the  corporation 

54.  The  seal  and  its  use. 

55.  Corporate  boundaries. 

56.  Definition   of   corporate  boundaries. 

67.     Corporate  boundaries;  how  established. 
58.    Boundary  lines;    agency  for  their  establishment. 
69.     Proceedings  for  the  establishment  of  corporate  boundaries  and 
miscellaneous  matters  in  connection  therewith. 


TABLE  OF  CONTENTS.  ix 

60.  Objections  to  the  establishment  of  corporate  boundaries. 

61.  Location  of  corporate  boundaries. 

62.  Appeal  from  order  fixing  corporate  boundaries. 

63.  Change  of  corporate  boundary. 

64.  Judicial  recognition. 

65.  Effect  of  the  establishment  or  change  of  a  boundary  line. 

66.  Seat  of  government. 

67.  Original  location  of  a  county  seat. 

68.  Removal  of  a  county  seat. 

69.  Petition  for  removal. 

70.  Its  form,  and  averments. 

71.  Petition  and  its  signers. 

72.  Signers'  right  of  withdrawal. 

73.  Petition  for  removal;    its  filing.    Notice. 

74.  Official  action. 

75.  Time  and  manner  of  election. 

76.  Qualifications  of  voters. 

77.  Votes  necessary  to  a  removal. 

78.  Canvass  and  return  of  votes. 

79.  Contests. 

80.  Authority  of  commissioners. 

81.  Declaration  of  the  result  and   its  effect. 


CHAPTEK  III. 

LEGISLATIVE  POWER  OVER  PUBLIC  CORPORATIONS  AND  ITS  LIM- 
ITATIONS. 

§  82.  In  general. 

83.  Legislative  control  over  public  funds. 

84.  Power  of  the  legislature  over  public  revenues. 

85.  Legislative  control  over  corporate  boundaries 

86.  Over  municipal  boundaries. 

87.  Legislative  power  over  public  property. 

88.  Over  corporate  contracts. 

89.  Legislative  control  ever  trust  property  held  by  public  corpora- 

tions. 

90.  The  power  of  the  legislature  to  compel  the  payment  of  debts. 

91.  Retention  of  jurisdiction. 

92.  Constitutional  limitations  on  legislative  power. 

93.  Limitations  on  the  passage  of  what  is  termed  "special  legisla- 

tion." 

94.  Constitutionality  of  laws  classifying  public  corporations. 

95.  Other  constitutional  objections. 

96.  The  impairment  or  destruction  of  vested  rights  as  a  limitation. 

97.  Control  over  the  corporation  in  its  private  capacity. 


TABLE  OF  CONTENTS. 

CHAPTER  IV. 
CORPORATE  ELECTIONS. 

\  98.  Corporate  elections. 

99.  Notice. 

100.  Time  and  place  of  holding. 

101.  The  town  meeting;  its  powers. 

102.  Its  powers,  continued. 

103.  Purpose  for  which  held;  levy  of  taxes;  election  of  officers. 

104.  The  town  meeting;   right  and  authority  for  holding. 

105.  Officers  and  their  duties. 

106.  Voters  and  their  qualifications. 

107.  Miscellaneous  matters. 


CHAPTER  V. 

THE  POWERS  OF  PUBLIC  CORPORATIONS. 

I.  IN  GENERAL 

§  108.     General  powers. 

109.  Implied. 

To  enact  ordinances. 
Public  offices. 

To  acquire  and  hold  property 
The  police  power. 
Miscellaneous  implied  power. 

110.  Discretionary  and  imperative  powers. 

Their  exercise 

111.  Corporate  powers;  their  extent  and  nature. 

112.  Their  delegation. 

113.  Rules  of  construction. 

114.  Rule  of  strict  construction;   how  modified. 

II.  THE  POLICE  POWER. 

§  115.  Definitions. 

116.  General    limitations   upon    its    exercise. 

117.  Constitutional   limitations. 

118.  The  preservation   of   public   health. 

119.  Public  agencies   for  the   preservation   of  health. 

120.  Boards  of  health;  their  jurisdiction  and  powers. 

Vaccination. 

121.  Their  liability. 

122.  Quarantines  and  quarantine  regulations. 


TABLE  OF  CONTENTS.  xi 

123.  Police  power  respecting  the  regulation  of  occupations. 

124.  Inspection  of  foods. 

125.  Regulations  as  to  the  construction  and  use  of  buildings. 

126.  Regulation  and  abatement  of  nuisances. 

127.  The  protection  of  public  morals. 

128.  Regulations   controlling   or   suppressing   gambling. 

129.  The  police  power;  further  illustrations  of  its  exercise. 

130.  The  exercise  of  the  police  power  in  regulating  the   sale  and 

consumption  of  intoxicating  liquors. 

131.  The  police  power;    miscellaneous  illustrations  of   Its  valid   ex- 

ercise. 

132.  The  exercise  of  the  police  power  continued;    the   exaction  of 

license  fees. 

133.  The  exercise  of  the  police  power;    further  Illustrations. 

134.  Establishment  of  public  markets. 

135.  Public  markets;  the  power  to  regulate. 

136.  The  right  to  authorize  private  markets. 

137.  The   control  of  nuisances. 

138.  Their  abatement  and  removal. 

139.  Objections  to  the  removal  or  abatement  of  nuisances. 

III.     THE  POWEB  TO  INCUR   INDEBTEDNESS  OTHEB  THAN  BY  THE  ISSUE  OF 
BONDS. 

§  140.  The  corporate  power  to  incur  indebtedness. 

141.  Must  be  expressly  given;   It  cannot  be  implied. 

142.  To  what  extent  discretionary  if  expressly  given. 

143.  Implied  power  of  the  courts  to  compel  the  payment  of  debts. 

144.  Manner  of  its  exercise;    body  authorized. 

145.  The  power  limited  by  the  purpose  or  use  of  funds  to  be  raised. 

146.  The  construction  of  buildings  a  public  purpose. 

146a.  Illustrations  of  a  "public  purpose"  continued;    the   support  of 

the  poor;  water  supply. 
146b.  "Public  purposes"  continued;   light. 

147.  The  construction  of  internal  improvements. 

(a)  In  general. 

(b)  Railway  aid. 

148.  Express  limitations  on  power  to  incur  indebtedness. 

149.  Same  subject  continued. 

150.  Retroactive  effect  of  limitations. 

151.  Construction  of  statutory  and  other  limitations. 

152.  Definition  of  the  word  "indebtedness"  or  "debt"  as  used  In  lim- 

iting laws. 

153.  Indebtedness  must  be  a  legal  demand. 

154.  Debts  of  territorially  co-existing  public  corporations. 

155.  Assessment  or  valuation  to  be  considered. 

156.  Indebtedness  further  defined;    warrants   issued  in  anticipation 

of  taxes  levied. 


xii  TABLE  OF  CONTENTS. 

157.  Expenses  incurred  in  excess  of  current  revenue  or  income. 

158.  Net  debt;  deduction  of  uncollected  taxes. 

169.  Future  payments  under  executory  contracts  not  usually  regard- 

ed as  "debts." 

160.  Unearned  interest  not  considered  a  "debt." 

161.  Deduction  of  assets  to  determine  net  debt. 

162.  Corporate  indebtedness;  its  payment  from  a  special  fund. 

163.  Its  payment  through  the  levy  of  taxes. 

164.  Manner  of  levying  taxes. 

165.  Provision   for  payment  at  time  debt  was  incurred. 

166.  Debt;  mode  of  payment. 

167.  Time  and  place  of  payment. 

168.  Enforcement  of  a  debt  by  action. 

IV.    THE  POWER  OF  PUBLIC  COBPOBATIONS  TO  INCUB  INDEBTEDNESS  THBOUGH 
THE  ISSUE  OF  NEGOTIABLE  SECUBITIES. 

§  169.    Power  to  issue  negotiable  securities. 

(a)  Must  be  expressly  given. 

(b)  De  facto  corporate  existence  necessary. 

170.  The  power  to  issue  must  be  expressly  given;  it  cannot  be  im- 

plied. 

171.  Ratification  of  void  issue  of  negotiable  bonds. 

172.  The  issue  of  bonds;  their  purpose. 

173.  Refunding  bonds. 

.  174.    Obligations   issued  for  the   purpose  of  funding   a  bonded   in- 
debtedness. 

175.  The  issue  of  negotiable  securities  for  the  construction  or  im- 

provement of  highways. 

176.  The  construction  of  municipal  lighting  plants. 

177.  To  secure  a  water  supply. 

178.  Railway  aid   securities. 

179.  Construction  of  drains  and   sewers. 

180.  The  construction  of  bridges. 

181.  The  erection  of  public  buildings. 

182.  For  making  local  improvements. 

183.  Internal  improvements. 

184.  The  power  to  issue  and  the  conditions  precedent  to  its  exer- 

cise. 

185.  Performance  of  conditions  precedent  required  of  railwaj  com- 

panies. 

186.  Conditions  precedent  to  issue. 

(a)  The  notice  or  order  for  an  election. 

(b)  Its  form. 

(c)  Its    service. 

187.  Petition. 

188.  The  calling  of  an  election  by  ordinance. 

189.  The  election. 


TABLE  OF  CONTENTS. 

190.  Questions  not  necessary  for  submission  to  the  electors. 

191.  The  election;  time  and  manner  of  holding. 

192.  Voters  and  their  qualifications. 

193.  Canvass  of  election  returns. 

194.  Necessary  votes. 

195.  Negotiable  securities;   delivery. 

196.  Necessity  for  registration. 

197.  Official  signatures  and  seals. 

Sealing. 

198.  Form. 

Times  of  issue  and  maturity. 
Rate  of  interest. 

199.  Recitals  of  authority. 

200.  The  ratification  of  void  securities. 

201.  Negotiable  bonds;   their  validity. 

202.  As   affected  by  adverse  decisions  of  a  state  court. 

203.  Validity  of  issue  in  excess  of  legal  authority. 

204.  Legality  as  affected  by  subsequent  legislation. 

205.  Securities  of  public  corporations;   their  legal  character. 

206.  Validity  of  negotiable  securities.    The  doctrine  of  estoppel. 

207.  The  same  subject. 

208.  Estoppel  through  the  payment  of  interest. 

209.  The  doctrine  of  recitals. 

The  decisions  of  state  courts  upon  questions  of  commercial 
law  not  controlling. 

210.  Estoppel  not  applying  to  recitals  of  law. 

211.  Distinction  between  power  to  issue  and  irregularity  in  its  exer- 

cise. 

212.  The  doctrine  as  applied  to  bonds  containing  no  recitals  of  au- 

thority. 

213.  Bona  fide  holder. 

214.  Coupons;   their  legal  character. 

215.  Time  and  place  of  payment. 

216.  Negotiable  securities;   sale. 

217.  Their  payment. 

218.  Time  of  payment 

219.  Medium  of  payment. 

220.  To  whom  payable. 

221.  The  payment  of  interest. 

222.  The  rule  as  to  the  payment  of  void  bonds. 

223.  Payment  of  securities  through  provisions  for  a  sinking  fund. 

224.  The  duty  to  levy  taxes  for  the  payment  of  interest  or  principal 

of  negotiable  bonds. 

225.  Rights  of  a  holder  to  maintain  an  action. 


xiv  TABLE  OF  CONTENTS. 

V.  WARRANTS  AND  MISCELLANEOUS  EVIDENCES  OF  INDEBTEDNESS. 

§  226.  Warrants;  definition;  by  whom  drawn. 

227.  Fund  from  which  payable. 

228.  Formal  issue. 

229.  Audit  and  allowance  of  claims  as  preliminary  to  issuance. 

230.  Their  legal  character. 

231.  Form. 

232.  Wording. 

233.  Validity. 

(a)  In  general. 

(b)  Warrants  invalid  because  of  purpose  for  which  issued. 

(c)  Invalidity  resulting  from  character. 

(d)  Refunding. 

234.  Interest  payable. 

235.  Actions  on  warrants. 

236.  Their  payment. 

237.  Presentation  for  payment. 

238.  Payment;  the  amount. 

239.  Manner  of  payment. 

240.  Time  of  payment. 

241.  To  whom  payable. 

242.  Miscellaneous    forms    of   indebtedness. 

243.  The  same  subject;    legal   character. 

244.  Form  and  phraseology. 

245.  Mode  and  time  of  payment. 

VI.  THE  POWER  TO  CONTRACT. 

§  246.  In  general. 

247.  The  implied  power  to  contract. 

248.  Ultra  vires  contracts. 

249.  For  want  of  authority. 

250.  Because  of  purpose  or  result. 

251.  Contracts   protected  by    constitutional   provisions. 

252.  Contracts   ultra  vires  because  of  constitutional  provisions. 

253.  The  same  subject  continued. 

254.  Contracts  ultra  vires  because  contravening  some  exclusive  right. 

255.  Contracts  ultra  vires  because  of  a  beneficial  interest  resulting 

to  the  public  officers  executing  them. 

256.  Contracts  ultra  vires  because  of  fraud  or  bribery. 

257.  Contracts  ultra  vires  because  extending  beyond  official  term. 

258.  Ultra  vires  contracts;    their  enforcement. 

259.  Availability  of  the  doctrine  of  estoppel. 

260.  Contracts;  their  formal  execution. 

261.  Presumption  of  legality. 

262.  Mode  of  contracting;   letting  to  the  lowest  bidder. 


TABLE  OF  CONTENTS.  xv 

263.  Acceptance  of  bids. 

264.  Rejection  of  bid. 

265.  Notice. 

266.  Specifications  of  services  or  supplies  required. 

267.  Discretionary  power  in  officers  to  reject  or  accept  bids. 

268.  The  same  subject  continued. 

269.  Discretionary  power  of  officials  to  award  to  lowest  bidder  or 

otherwise. 

270.  Change  of  contract. 

271.  Parties  to  the  proceedings. 

272.  Conditions  imposed. 

273.  Contracts;   how  made;  in  writing. 

274.  How  made;  orally. 

275.  By  whom  made. 

276.  As  authorized  by  legislative  bodies. 

277.  Contracts  made  by  departments. 

278.  Made  by  public  officials. 

279.  The  ratification  of  an  illegal  contract. 

280.  Ratification  of  a  contract  Ultra  vires. 

281.  Legislative  ratification  of  ultra  vires  contracts. 

282.  Ratification  of  illegal  contracts. 

283.  Modification  of  a  contract. 

284.  Avoidance  or  rescission  of  contract. 

285.  Contracts;    their  construction. 

286.  Arbitration  clauses. 

287.  Corporate  contracts;  their  performance. 

(a)  In  general. 

(b)  Manner  of  performance. 

(c)  Time  of  performance. 

(d)  Other  conditions. 

(e)  Performance  by  the  public  corporation  as  a  party  to  the 

contract. 

288.  A  contract;   its  performance;    acceptance  of  work. 

289.  Fraud  as  rendering  a  contract  invalid. 

290.  The  right  of  the  parties  to  maintain  an  action  based  upon  a 

contract. 

291.  Delay  in  the  performance  of  a  contract. 

292.  The  assignment   of  a  contract. 

293.  Rights   of  parties. 

294.  Payment  of  contract  obligations. 

295.  Extras. 

296.  Public  contracts;  actions. 

297.  Bond  required  of  contractors. 

298.  Rights  of  sureties. 

299.  Subcontractors. 


xvi  TABLE  OF  CONTENTS. 

CHAPTER  VI. 
PUBLIC   REVENUES;    THEIR   COLLECTION   AND    DISBURSEMENT. 

I.  TAXATION. 

§  300.  Definition  and  nature. 

301.  Municipal   power   to    tax. 

302.  The  authority. 

303.  Limitations  upon  the  power. 

(a)  Limitations  as  to  rate  or  amount. 

(b)  Limitations  as  to   purpose. 

304.  Purpose  of  taxation. 

(a)  Railway  aid. 

305.  The  payment  of  debts. 

(a)  Of  judgments. 

(b)  Of  bonds  and  interest. 

(c)  Obligatory  payments  on  contracts. 

(d)  The  payment  of  warrants  and  claims. 
S06.     Taxation  for  the  support  of  public  schools. 

307.  School  taxes;  amount  required. 

308.  Diversion   of  funds. 

309.  The  construction  of   roads. 

310.  The   levy   of  taxes   for   the   establishment  or  maintenance   of 

plants  for  the  supply  of  water  and  light. 

311.  The  exercise  of  the  power. 

312.  The  authority  to  tax  and  upon  what  based. 

313.  Exemptions. 

(a)  Public  property  exempt. 

(b)  Other  exemptions. 

(c)  Contract  exemptions. 

(d)  Exemptions  arising  because  of  purpose  for  which  prop- 

erty is  used. 

314.  Taxes;    their   levy  and   assessment. 

315.  Basis  or  authority  for  tax  levy. 

316.  Agency  of  tax  levy. 

317.  Apportionment    of    taxes. 

318.  Tax  levies;   preliminary  proceedings. 

319.  Mode  of  levy  and   assessment. 

320.  Loss   of   power. 

321.  Errors   in   proceedings. 

322.  The  power;   when  exercised. 

323.  The  duty  obligatory. 

324.  Equalization  of  tax  levies. 

325.  Taxpayers'  rights. 

326.  Lien  and  priority. 

327.  Collection   of  taxes. 

Personal  liability. 


TABLE  OF  CONTENTS.  xvii 

328.  Actions;    questions  raised. 

(a)  The  same  subject. 

329.  Use  of   proper   remedy  by   taxpayers   to   prevent   collection   of 

illegal  taxes. 

330.  Compromise  of  taxes. 

331.  Right  to  prescribe  and  collect  penalties. 

332.  Irregularities. 

333.  Enforcement  of  lien. 

334.  Summary  proceedings. 

335.  The  payment  of  taxes. 

To   whom  and  when. 

336.  Their  refunding. 
II.     Special  Assessments. 

337.  Definition  and  explanation  of  the  term. 

338.  The   exercise  of   the  power  to  levy. 

(a)  The  power  a  continuing  one. 

(b)  Cannot  be  delegated. 

339.  Limitations  upon  the  power. 

340.  Purpose  for  which  exercised. 

(a)  What  not  considered  local  improvements. 

(b)  What  regarded  as  local  improvements. 

341.  Extent  of  exercise. 

Discretionary  power   of  municipal   authorities   to   make  im- 
provements. 

342.  Discretionary  power  with  reference  to  locating  limits  of  taxing 

district. 

343.  Property  subject  to  local  assessments. 

(a)  Statutory   exemptions. 

(b)  Contract  exemptions. 

(c)  Exemption  from  local  assessment  because  of  use  by  com- 

mon carriers. 

(d)  Property  exempt  because  of  its  location. 

(e)  Public  property;  when  exempt. 

344.  The    manner    of    determining    local    assessments;    conversely; 

benefits. 

345.  According  to  frontage. 

346.  Assessment  based  upon   location. 

347.  Levy  based  upon  ascertained  benefits. 

(a)  Ascertainment  of  benefits. 

(b)  Appeal  from  appraisal  of  commissioners. 

(c)  Right  of  appeal. 

348.  What  considered  as  benefits. 

Illustrations  of  benefits. 

349.  Levy  based  upon  area  or  comparative  value  of  property. 

350.  Individual  liability. 

351.  Estoppel  of   taxpayer. 

352.  Place  of  assessment. 

S53.     Acquiring  jurisdiction;  preliminary  proceedings. 
354.     Same  subject  continued. 


xviii  TABLE  OF  CONTENTS. 

355.  Execution  of  a  contract. 

356.  Preliminary  investigation  or  estimates. 

357.  Same  subject  continued. 

358.  Jurisdiction   acquired    through    the    introduction   and   passage 

of  an  ordinance. 

(a)  Legality  of  ordinances. 

(b)  Form. 

(c)  A  local  improvement  ordinance  must  be  reasonable. 

359.  Resolutions. 

360.  Petition  by  property  owners. 

(a)  Petition  not  necessary  where  cost  is  paid  from  general 
funds. 

361.  Declaration  of  necessity. 

362.  Construction  of  the  improvement. 

363.  Notice  to  property  owners. 

364.  When  given. 

365.  How  given  and  to  whom. 

366.  Result  of  a  failure  to  give  notice. 

367.  Variance  of  proceedings  from  notice  given. 

368.  Benefits  the  basis  of  assessment. 

369.  Presumption  of  validity. 

370.  Estoppel  of  public  corporations. 

371.  Form  of  reports,  assessment  rolls  and  other  necessary  papers. 

372.  Opportunity  for  investigation  and  examination. 

373.  The  right  of  correction  and  review. 

374.  Parties  to  appeal  proceedings. 

375.  Review  by  the  courts. 

376.  Review  by  other  bodies. 

377.  The  right  of  appeal  or  review;   manner  and  time  of  exercise. 

378.  Collusiveness  of  decision. 

379.  Review  and  correction. 

380.  What  questions  raised  on  appeal  and  review. 

381.  Estoppel  of  property  owner. 

(a)  By  laches. 

(b)  By  course  of  action. 

382.  The  same  subject;    propositions  negatively  stated. 

383.  Right  of  appeal  as  based  on  omission  to  tax  other  property. 

384.  Excessive  assessment. 

385.  Judicial  confirmation  of  an  assessment   roll. 

386.  Reassessment  or  supplemental  assessment. 

387.  Curative  legislation. 

388.  Collateral  attack. 

389.  Lien  and  priority  of  special  assessments. 

390.  The  same  subject  continued. 

391.  Collection  of  special  assessments. 

392.  Manner  and  amount  of  collection. 

393.  Same  subject;  summary  proceedings. 

394.  Time  of  collection. 


TABLE  OF  CONTENTS.  x{x 


395.  The  rights  of  property  owners. 

396.  Personal  liability. 

397.  Recovery  of  invalid  assessments. 


ANALYSIS  OF  VOLUMES  TWO  AND  THREE. 

(For  detail  see  those  volumes.) 
Chapter 

VI.  PUBLIC     REVENUES;     THEIR    COLLECTION     AND     DISBURSE- 

MENT  (Cont'd.). 

III.  LICENSE  FEES  AND  POLL  TAXES. 

IV.  THE  DISBURSEMENT  OF  PUBLIC  REVENUES. 

VII.  GOVERNING  BODIES. 

I.  LEGISLATIVE. 

II.  EXECUTIVE. 
III.  JUDICIAL. 

VIII.  PUBLIC  OFFICE  AND  OFFICERS. 

I.  COMMENCEMENT  AND  NATURE  OF  OFFICIAL  LIFB. 

II.  TERMINATION   OF  OFFICIAL  LIFE. 

III.  POWERS,  DUTIES,  AND  RIGHTS. 

IX.  PUBLIC   PROPERTY. 

I.  ITS  ACQUIREMENT. 
II.  ITS  CONTROL  AND  USE. 
III.  ITS  DISPOSITION. 

X.  LIABILITY  OF  PUBLIC  CORPORATIONS  FOR  NEGLIGENCE. 

XI.  SOME  PUBLIC  DUTIES. 

I.  EDUCATIONAL. 
II.  CHARITABLE  AND  CORRECTIVE. 

XII.  ACTIONS  BY  AND  AGAINST  PUBLIC  CORPORATIONS. 


MUNICIPAL  CORPORATIONS. 


CHAPTER  I. 

INTRODUCTORY  AND  DEFINITIONS. 

§  1.  Corporations  defined  and  classified. 

2.  The  classes  further  distinguished. 

3.  Quasi  public  corporations  defined. 

4.  Public  and  private  corporations  distinguished. 

5.  Public  corporations  classified. 

6.  Definition  of  a  public  corporation. 

7.  Definition  of  a  municipal  corporation. 

8.  Public  quasi  corporations  defined  and  distinguished  from  municipal. 

§  1.    Corporations  defined  and  classified. 

The  idea  that  an  association  or  combination  of  natural  persons, 
or  things,  may  possess  powers  and  properties  distinct  and  differ- 
ent from,  as  well  as  some  in  common  with,  natural  persons,  has 
been  a  necessary  and  a  favorite  one  in  all  systems  of  jurispru- 
dence. One  'of  the  divisions,  therefore,  found  in  the  earliest  known 
codified  law,  is  that  of  persons  into  natural  and  juridical,  the  lat- 
ter including  that  "artificial  person"  existing  only  in  contempla- 
tion of  law,  the  logical  sequence  of  existing  conditions ;  and  since 
that  time  all  systems  have  recognized  this  artificial  person. 

The  definition  of  a  corporation  most  widely  known  and  quoted 
is  that  of  Chief  Justice  Marshall  in  the  Dartmouth  College  Case : 
"A  corporation  is  an  artificial  being,  invisible,  intangible,  and 
existing  only  in  contemplation  of  law.  Being  the  mere  creature 
of  law,  it  possesses  only  those  properties  which  the  charter  of  its 
creation  confers  upon  it,  either  expressly  or  as  incidental  to  its 
very  existence.  These  are  such  as  are  supposed  best  calculated  to 
effect  the  object  for  which  it  was  created.  Among  the  most  im- 
portant are  immortality,  and,  if  the  expression  may  be  allowed, 

Abb.  Corp. — 1. 


2  INTRODUCTORY;    DEFINITIONS.  8   1 

o 

individuality, — properties  by  which  a  perpetual  succession  of  many 
persons  are  considered  as  the  same  and  may  act  as  a  single  indi- 
vidual."1 

Other  definitions  and  descriptions  have  been  given  by  text- 
book writers  and  judges  during  the  course  of  many  years.  The 
definition  above  has  been  criticised  as  being  a  description  rather 
than  a  definition,  but  it  is,  as  stated,  without  doubt  the  best  known 
and  one  of  the  clearest.8 

The  definition  prepared  by  Austin  Abbott  for  the  Century  Dic- 
tionary is  concise  in  its  terms:  A  corporation  is  ''an  artificial 
person  created  by  law,  or  under  authority  of  law,  from  a  group 
or  succession  of  natural  persons,  and  having  a  continuous  exist- 
ence irrespective  of  that  of  its  members,  and  powers  and  liabili- 
ties different  from  those  of  its  members." 

Some  of  the  characteristics  of  a  corporation  as  compared  with 
a  natural  person  are  suggested  by  the  definition  of  Chief  Justice 
Marshall,  and  include,  as  the  most  important,  the  idea  of  immor- 
tality. The  corporation  exists  for  the  time  limited  in  the  charter 
irrespective  of  the  individual  lives  of  those  who  may  compose  it ; 
its  powers  and  rights,  its  duties  and  obligations,  remaining  the 
same,  though  its  members  may  be  constantly  changing.  It  is  a 
legal  person  distinct  from  its  members. 

The  second  characteristic  worthy  of  note  in  the  present  discus- 
sion is  that,  while  in  a  corporation,  in  the  absence  of  statutory  or 
constitutional  provisions,  the  members  are  not  personally  liable 
for  corporate  debts,  in  a  partnership — that  other  association  of 
persons — each  member  is  individually  liable  for  the  debts  of  the 
firm ;  and  natural  persons  sui  juris  are  liable  to  the  fullest  extent 
for  debts  contracted  by  them.  A  late  authority  says:  "The  only 
characteristic  which  in  all  cases  distinguishes  a  corporation  from 
unincorporated  associations  is  the  merging  of  the  individuals  who 
compose  the  corporation  into  a  distinct  artificial  existence.  If 

1  Trustees   of    Dartmouth    College  Wend.     (N.     Y.)     71;     Sir     James 
v.  Woodward,  4  Wheat.   (U.  S.)  636.  Smith's  Case,   4    Mod.   52;    Fietsam 

2  Falconer  v.  Campbell,  2  McLean,  v.  Hay,  122  111.  293;    Liverpool  Ins. 
195,  Fed.  Cas.  No.   4,620;    Gregg  v.  Co.    v.    State    of    Massachusetts,    77 
Sanford,     65     Fed.     154;     Andrews  U.  S.   (10  Wall.)   566;   People  v.  As- 
Bros.  Co.  v.  Youngstown  Coke  Co.,  sessors   of   Watertown,    1    Hill    (N. 
86    Fed.    585;    Levee    Inspectors    of  Y.)    620;    In   re   Gibbs'   Estate,   157 
Chicot    County    v.     Crittenden,     94  Pa.    59;    1  Kyd,   Corp.  70;    Bouvier, 
Fed.     616;     Thomas     v.     Dakin,   22  Law   Diet.   "Corporations;"  1  Clark 


8   1  INTRODUCTORY;    DEFINITIONS.  3 

O       *  *•* 

this  feature  exists,  an  association  is  a  corporation,  but  not  other- 
wise. An  association  does  not  become  a  corporation  merely  be- 
cause it  is  so  called;  nor,  on  the  other  hand,  is  it  any  the  less  a 
corporation  because  it  is  not  so  called.  Whether  it  is  a  corpora- 
tion depends  upon  the  powers  and  faculties  conferred  upon  it." 

The  occasion  of  the  creation  of  a  corporation  is  chiefly  for 
the  resulting  convenience,  economy,  unity  and  continuity  in  the 
transaction  of  business  or  management  of  property.  Certain  pow- 
ers and  functions  can  be  exercised  better  by  an  artificial  body 
than  natural  persons;  and  the  state  or  sovereign  may  better  ex- 
ercise over  this  collective  body,  this  artificial  person,  its  rights 
of  control  and  regulation,  than  over  a  number  of  individuals. 
Great  and  advantageous  economies  in  business  can  be  effected  by 
combinations  of  energy  and  capital. 

As  indicative  of  the  view  taken  of  corporations  by  business  men, 
the  definition  of  the  late  Jay  Gould  is  interesting.  He  describes 
a  corporation  as  "a  body  'of  men  who  unite,  associate,  and  con- 
centrate their  ability,  capital  and  intelligence  in  the  undertaking 
of  a  work,  great  or  small,  which  any  one  of  them  would  indi- 
vidually be  unwilling  to  undertake.  If  there  are  losses,  they  agree 
to  bear  each  his  proportion ;  if  there  are  profits,  they  agree  to  di- 
vide them."  This  definition,  as  will  be  seen  later,  applies  more 
strictly  to  a  private  corporation.3 

Corporations  have  been  classified  according  to  the  functions 
which  they  may  perform,  their  purpose  of  creation,  the  number 
of  members  comprising  them,  or  upon  the  element  of  capital  stock. 
The  only  classification  which  concerns  the  present  work  is  that 
first  suggested,  namely,  the  division  based  upon  functions  per- 
formed. This  was  broadly  suggested  in  the  Dartmouth  College 
Case  in  the  opinion  of  Justice  Story:  "Public  corporations  are 
generally  esteemed  such  as  exist  for  public  political  purposes  only, 
— such  as  towns,  cities,  parishes,  and  counties;  and  in  many  re- 
spects they  are  so,  although  they  involve  some  private  interests. 
But  strictly  speaking,  public  corporations  are  such  only  as  are 
founded  by  the  government  for  public  purposes,  where  the  whole 
interests  belong  also  to  the  government."* 

&  M.  Private  Corp.  §  1;   1  Thomp-  s  Taylor,  Corp.  §  23  et  seq. 

son,    Corp.    §    1    et   seq.;    vol.    7,    §  *  Trustees    of   Dartmouth    College 

8140;   Angell  &  A.  Corp.  (llth  Ed.)  v.    Woodward,    4    Wheat.     (U.    S.) 

§   30  et   seq.;    Bl.  Comm.  Book  IV.,  668. 
18;     Standard    Diet.    "Corporation." 


4  INTRODUCTORY;    DEFINITIONS.  §    ] 

The  basis  of  the  classification  arises  from  a  difference  in  the 
nature  of  the  duties  required  and  powers  exercised,  and  has  ex- 
isted since  the  first  recognition  of  artificial  persons  by  the  sover- 
eign. This  division  or  classification  is  that  of  public  and  private. 

In  a  California  case,5  Chief  Justice  Sawyer  in  writing  the  opin- 
ion said  in  defining  a  corporation  and  discussing  its  nature: 
' '  So,  also,  there  are  several  classes  of  corporations,  such  as  public 
municipal  corporations,  the  leading  object  of  which  is  to  promote 
the  public  interest;  corporations  technically  private,  but  yet  of 
a  quasi  public  character,  having  in  view  some  great  public  en- 
terprise, in  which  the  public  interests  are  directly  involved  to 
such  an  extent  as  to  justify  conferring  upon  them  important 
governmental  powers,  such  as  an  exercise  of  the  right  of  eminent 
domain.  Of  this  class  are  railroad,  turnpike,  and  canal  compa- 
nies ;  and  corporations  strictly  private,  the  direct  object  of  which 
is  to  promote  private  interests,  and  in  which  the  public  has  no 
concern,  except  the  indirect  benefits  resulting  from  the  promotion 
of  trade,  and  the  development  of  the  general  resources  of  the 
country.  They  derive  nothing  from  the  government,  except  the 
right  to  be  a  corporation,  and  to  exercise  the  powers  granted. 
In  all  other  respects,  to  the  extent  of  their  powers,  they  stand 
upon  the  footing  of  natural  persons,  having  such  property  as 
they  may  legally  acquire,  and  holding  and  using  it  ultimately  for 
the  exclusive  benefit  of  the  stockholders.  In  this  last  class,  the 
stockholders,  and  those  dealing  with  the  corporation  are  the  only 
parties  directly  and  immediately  interested  in  their  acts,  so  long 
as  the  corporation  confines  itself  within  the  general  scope  of 
its  powers.  The  rights  of  the  corporation,  the  corporators,  and 
of  strangers  dealing  with  the  corporation,  may,  in  some  respects, 
vary  according  to  the  circumstances  surrounding  a  given  trans- 
action." The  California  Code,  sec.  284,  provides,  "Corporations 
are  either  public  or  private ;  public  corporations  are  formed  or 
organized  for  the  government  of  a  portion  of  the  state ;  all  other 

»  Miners'  Ditch  Co.  v.  Zellerbach,  stead    v.    Town    of    Hempstead,    2 

37  Cal.  543,  577;   McLoud  v.  Selby,  Wend.   (N.  Y.)    109;   Com.  v.  Green, 

10  Conn.  390;  Herbert  v.  Benson,  2  4    Whart.    (Pa.)    531,    598;    Cole    v. 

La.  Ann.   770;    Police  Jury  of  Bos-  East  Greenwich  Fire  Engine  Co.,  12 

Bier  v.  Shreveport  Corp.,  5  La.  Ann.  R.  I.  202;  Appleton  v.  Water  Com'rs 

661;   Andrews  v.  Estes,  11  Me.  267;  of  New  York,   2  Hill    (N.  Y.)    432; 

Gaskill     v.     Dudley,     47     Mass.     (6  1  Thompson,  Corp.  p.  19. 
Mete.)    546;    Town  of  North  Hemp- 


§   2  INTRODUCTORY;    DEFINITIONS.  5 

corporations  are  private."  The  weight  of  authority  and  the 
most  recent  cases  endorse  the  classification  by  Chief  Justice  Saw- 
yer given  above. 

§  2.    The  classes  further  distinguished. 

The  distinction  between  the  three  classes  named  in  the  last 
section  is  perhaps  sufficiently  given  in  the  definitions  referred  to ; 
but  a  further  and  short  discussion  of  substantial  differences  may 
not  be  out  of  place. 

Chief  Justice  Marshall,  in  the  Dartmouth  College  Case,  in  reply 
to  the  argument  advanced  that  a  private  corporation  may  affect 
the  public  interest,  or  the  transaction  of  its  business  may  result 
to  the  advantage  or  the  benefit  of  the  public,  and  therefore  should 
be  considered  a  public  corporation,  states:  "The  objects  for 
which  a  corporation  is  created  are  universally  such  as  the  govern- 
ment wishes  to  promote.  They  are  deemed  beneficial  to  the  coun- 
try, and  this  benefit  constitutes  the  consideration,  and  in  most 
cases  the  sole  consideration,  of  the  grant.  *  *  *  The  ben- 
efit to  the  public  is  considered  as  an  ample  compensation  for  the 
faculty  it  confers,  and  the  corporation  is  created.  If  the  advan- 
tages to  the  public  constitute  a  full  compensation  for  the  faculty 
it  gives,  there  can  be  no  reason  for  exacting  a  further  compensa- 
tion by  claiming  a  right  to  exercise  over  this  artificial  being  a 
power  which  changes  its  nature,  and  touches  the  fund,  for  the 
security  and  application  of  which  it  was  created.  There  can  be 
no  reason  for  implying,  in  a  charter  given  for  a  valuable  consid- 
eration, a  power  which  is  not  only  not  expressed,  but  is  in  direct 
contradiction  to  its  express  stipulations."6 

The  mere  fact,  then,  that  a  private  corporation  transacts  busi- 
ness affecting  the  public  interests  or  of  a  public  nature,  does  not 
necessarily  change  its  character;  neither  does  the  fact  that  the 
state  may  own  shares  of  stock,  or  all  the  stock,  of  such  corpora- 
tion.7 

s  Trustees    of   Dartmouth    College  Bank    of    Arkansas,    4    Ark.     620; 

v.  Woodward,  4  Wheat.  (U.  S.)   637,  State   Bank   v.    Clark,    8   N.   C.    (1 

638.  Hawks)    36;    State   Bank   v.   Gibbs, 

7  Bank  of  U.  S.  v.  Planters'  Bank  3  McCord   (S.  C.)    377;   Hutchinson 

of  Georgia,  9  Wheat.    (U.   S.)    904;  v.   Western  &  A.  R.   Co.,   53   Tenn. 

Bank     of     Alabama     v.     Gibson's  (6   Heisk.)    634. 
Adm'rs,    6    Ala.     814;     Mahony    v. 


6  INTRODUCTORY;    DEFINITIONS.  §   4 

In  discussing  the  difference  between  a  quasi  corporation  and  an 
assembly,  Chief  Justice  Gibson  says  in  substance:  "A  quasi  cor- 
poration is  one  created  by  law  for  convenience,  having  capacity 
to  sue  and  be  sued,  with  the  power  of  corporate  succession."8 

§  3.    Quasi  public  corporations  defined. 

Public  corporations  are  agencies  of  the  state ;  and  quasi  public 
corporations  are  private  corporations  in  all  their  essential  charac- 
teristics, but  so  affecting  the  interests  of  the  public  in  the  transac- 
tion of  their  business  as  to  give  to  the  state  the  right,  subject  to 
charter  provisions,9  to  interfere  with  or  control  their  manage- 
ment and  operation  to  a  greater  extent  than  usual  with  private 
corporations. 

The  doctrine  announced  was  not  held  squarely  in  the  Munn 
Case  because  unnecessary,  but  it  is  one  of  the  earliest  and  best 
cases  on  this  point,  as  its  broad  assertion  of  the  right  of  public 
control  has  undoubtedly  influenced  courts  everywhere  in  their 
conclusions  in  cases  where  the  question  has  squarely  arisen.  The 
other  cases  cited  are  little  more  than  an  application  of  the 
Munn  doctrine  and  directly  involve  the  point  discussed.  The 
announcement  of  the  doctrine  of  public  control  in  the  Munn 
Case  did  not  contain  any  limitations  upon  its  exercise.  The  pow- 
er, however,  is  not  one  which  can  be  exercised  by  the  state  un- 
restrained, but  due  regard  must  be  had  for  constitutional  provi- 
sions protecting  property  and  vested  rights.  The  power  of  public 
control  is  not  synonymous  with  the  right  of  confiscation.  The 
later  cases  decided  by  the  supreme  court  'of  the  United  States, 
while  not  lessening  the  weight  of  the  Munn  Case  as  an  authority 
upon  the  right  of  public  control,  emphatically  assert  the  princi- 
ples just  suggested.  The  Reagan  and  Smyth  Cases  are  especial- 
ly instructive  in  this  respect. 

§  4.    Public  and  private  corporations  distinguished. 

The  rights  and  powers,  the  duties  and  obligations,  of  a  public 
corporation,  as  compared  with  those  of  a  private  corporation,  are 

« Com.  v.  Green,  4  Whart.  (Pa.)  Stone  v.  State  of  Mississippi,  101 

631,  598.  U.  S.  814;  Reagan  v.  Farmers'  Loan 

» Munn  v.  State  of  Illinois,  94  &  Trust  Co.,  154  U.  S.  362;  Louis- 

U.  S.  113;  Chicago,  B.  &  Q.  R.  Co.  ville  &  N.  R.  Co.  v.  State  of  Ken- 

v.  State  of  Iowa,  94  U.  S.  155;  tucky,  161  U.  S.  695;  Smyth  T. 


§   4  INTRODUCTORY;    DEFINITIONS.  7 

marked.  This  is  true  because  of  the  entirely  different  purposes 
for  which  they  are  respectively  created.  A  public  corporation, 
as  has  been  said,  is  an  agency  of  the  state,  of  the  sovereign;  it 
is  organized  to  carry  out  some  local  political  want  as  auxiliary 
to  the  sovereign  power;  it  is  a  governmental  agent  created  for 
the  benefit  of  all  affected;  it  is  created  and  exists  through  the 
mere  will  of  the  legislature  as  the  delegated  agency  of  the  sov- 
ereign and  is  independent  of  all  contract  as  between  itself  and  the 
sovereign.  On  the  other  hand,  a  private  corporation  is  organized 
primarily  for  the  benefit,  generally  pecuniary,  of  its  members; 
for  the  advantage  of  the  few  as  compared  with  the  many.  This 
distinction  is  very  clearly  and  concisely  stated  in  an  early  deci- 
sion in  North  Carolina,  where  the  court  say:  "The  purpose  in 
making  all  corporations  is  the  accomplishment  of  some  public 
good ;  hence  the  division  into  public  and  private  has  a  tendency  to 
confuse  and  lead  to  error  in  the  investigation ;  for  unless  the  public 
are  to  be  benefited  it  is  no  more  lawful  to  confer  'exclusive  rights 
and  privileges'  upon  an  artificial  body  than  upon  a  private  citi- 
zen. The  substantial  distinction  is  this :  Some  corporations  are 
created  by  the  mere  will  of  the  legislature,  there  being  no  other 
party  interested  or  concerned.  To  this  body  a  portion  of  the 
power  of  the  legislature  is  delegated,  to  be  exercised  for  the  pub- 
lic good,  and  subject  at  all  times  to  be  modified,  changed  or 
annulled.  Other  corporations  are  the  result  of  contract.  The 
legislature  is  not  the  only  party  interested;  for  although  it  has 
a  public  purpose  to  be  accomplished,  it  chooses  to  do  it  by  the  in- 
strumentality of  a  second  party.  These  two  parties  make  a  con- 
tract. The  legislature,  for  and  in  consideration  of  certain  labor 
and  outlay  of  money,  confers  upon  the  party  of  the  second  part 
the  privilege  of  being  a  corporation  with  certain  powers  and  ca- 
pacities. The  expectation  of  benefit  to  the  public  is  the  moving 
consideration  on  one  side,  that  of  expected  remuneration  for  the 
outlay  is  the  consideration  on  the  other.  It  is  a  contract,  and 
therefore  cannot  be  modified,  changed  or  annulled  without  the 
consent  of  both  parties.  Counties  are  an  instance  of  the  former, 
railroad  and  turnpike  companies  of  the  latter,  classes  of  corpora- 
tions."10 

Ames,  169  U.  S.  466;  City  of  Rush-  Old  Colony  R.  Co.,  160  Mass.  96; 
ville  v.  Rushvllle  Natural  Gas  Co.,  State  v.  Columbus  Gaslight  &  Coke 
132  Ind.  575;  Attorney  General  v.  Co.,  34  Ohio  St.  572. 


8  INTRODUCTORY;    DEFINITIONS.  R  5 

6 

In  another  case  it  is  said:  "The  government  of  cities  and 
towns,  like  that  of  the  police  jury  of  parishes,  formed  one  of  the 
subdivisions  of  the  internal  administration  of  the  state,  and  was 
absolutely  under  the  control  of  the  legislature.  *  *  *  The 
laws  which  establish  and  regulate  municipal  corporations  are  not 
contracts,  but  ordinary  acts  of  legislation,  and  that  the  powers 
they  confer  are  nothing  more  than  mandates  of  the  sovereign 
power,  and  that  those  laws  may  be  repealed  or  altered  at  the  will 
of  the  legislature,  except  so  far  as  the  repeal  or  change  may  affect 
the  rights  of  third  persons  acquired  under  them. '  '" 

The  most  important  difference  between  public  and  private  cor- 
porations is  that  in  the  one  case,  as  suggested  in  the  North  Caro- 
lina decision,  there  is  but  one  party  to  the  transaction.  No  con- 
tract relation  exists  as  between  the  inhabitants  of  the  territory 
organized  and  the  state,  and  the  charter  or  organization  for  this 
territory  may  be  altered,  amended  or  repealed  at  the  pleasure  of 
the  sovereign.  This  is  not  true,  except  within  certain  well-recog- 
nized legal  limitations,  in  respect  to  the  private  corporation.  Its 
charter  is  a  contract,  subject  only  to  the  law  of  the  land,  govern- 
ing the  construction  and  enforcement  of  contracts.  In  the  Dart- 
mouth College  Case  Chief  Justice  Marshall  uses  language  often 
quoted:  "The  character  of  civil  institutions  does  not  grow  out 
of  their  incorporation,  but  out  of  the  manner  in  which  they 
are  formed  and  the  objects  for  which  they  are  created.  The 
right  to  change  them  is  not  founded  on  their  being  incorporated, 
but  on  their  being  the  instruments  of  government  created  for  its 
purposes.  The  same  institutions,  created  for  the  same  objects, 
though  not  incorporated,  would  be  public  institutions,  and  of 
course  be  controlled  by  the  legislature.  The  incorporating  act 
neither  gives  nor  prevents  this  control."12 

§  5.    Public  corporations  classified. 

There  is  found  upon  an  examination  of  the  reported  cases  a 
classification  of  public  corporations  based  upon  fundamental 

10  Mills  v.  Williams,  33  N.  C.   (11  Co.    v.   Metcalfe,   61  Ky.    (4    Mete.) 

Ired.)     558;    Bush    v.    Shipman,    5  199. 

111.    (4   Scam.)    186;    Doane  v.   Chi-  « Police      Jury     of      Bossier     v. 

cago  City  R.  Co.,  51  111.  App.  353;  Shreveport  Corp.,   5  La.   Ann.   661; 

School  Town  of  Monticello  T.   Ken-  People   v.   McFadden,    81   Cal.    489; 

dall,  72  Ind.  91;  Bardstown  &  L.  R.  Kahn  v.  Sutro,  114  Cal.  316. 


g   5  INTRODUCTORY;    DEFINITIONS.  9 

characteristics  and  differences,  namely,  public,  municipal  and 
public  quasi  corporations.13 

These  three  classes  have  been  generally  recognized,  though, 
owing  to  a  confusion  of  ideas  and  a  failure  to  comprehend  the 
fundamental  reasons  for  the  division,  the  placing  of  the  same 
governmental  organization  in  the  same  class  has  not  been  uni- 
form by  the  courts.  This  is  not  altogether  their  fault,  for  different 
state  constitutions  and  statutes  have  placed  in  different  classes 
the  same  governmental  organization.  The  essential  difference  be- 
tween these  classes  is  in  the  varying  power  of  local  action  or 
initiative.  This  diminishes  in  passing  from  public  corporations 
to  public  quasi  corporations,  and  accompanying  this  decrease  in 
power  is  found  a  corresponding  diminution  of  duty  and  lia- 
bility.14 

The  state  as  a  corporation.  At  the  common  law  and  in  England 
today,  the  king  is  regarded  by  statute  as  a  corporation  sole  for 
the  purpose  of  succession  and  to  preserve  the  possessions  of  the 
crown.  In  this  country,  for  many  purposes,  both  the  state  and 
national  governments  must  be  considered  as  corporations.  In 
a  New  York  case  the  court  said:  "A  state  is  a  legal  being  ca- 
pable of  transacting  some  kinds  of  business  like  a  natural  person, 
and  such  a  being  is  a  corporation."15  The  United  States  is  a  cor- 
poration, for  it  may  enter  into  contracts,  take,  hold  and  convey 
property,  sue,  and,  if  it  consents,  be  sued.16 

This  same  truth  applies  to  the  different  states  find  territories 
of  the  Union.17 

However,  in  Georgia  it  was  held  that  a  state  was  not  a  corpo- 
ration within  the  meaning  of  an  act  'of  Congress  requiring  pay- 
is  Trustees  of  Dartmouth  College  « Dugan  v.  U.  S.,  3  Wheat.  (U. 
T.  Woodward,  4  Wheat.  (U.  S.)  638.  S.)  172. 

is  Regents  of  University  v.  Wil-  IT  Briscoe  v.  Bank  of  Kentucky,  11 
Hams,  9  Gill  &  J.  (Md.)  365;  People  Pet.  (U.  S.)  257;  McDonogh's  Ex'rs 
v.  Morris,  13  Wend.  (N.  Y.)  325;  v.  Murdoch,  15  How.  (U.  S.)  367; 
Penobscot  Boom  Corp.  v.  Lamson,  Beers  v.  State  of  Arkansas,  20 
16  Me.  224;  Regents  of  University  How.  (U.  S.)  527;  Ter.  v.  Hilde- 
T.  McConnell,  5  Neb.  423.  brand,  2  Mont.  426;  People  v.  As- 

i*  People  v.  Assessors  of  Water-  sessors  of  Watertown,  1  Hill  (N. 
town,  1  Hill  (N.  Y.)  620;  State  of  Y.)  620;  Delafield  v.  State  of  Illi- 
Indiana  v.  Woram,  6  Hill  (N.  Y.)  nois,  2  Hill  (N.  Y.)  159;  Governor 
33.  v.  Allen,  27  Tenn.  (8  Humph.)  176; 

is  State  of  Indiana  Y.  Woram,  6  Dikes  v.  Miller,  25  Tex.  Supp.  281. 
Hill  (N.  Y.)  33. 


10  INTRODUCTORY;    DEFINITIONS.  §   £ 

ment  of  a  duty  by  "every  person,  firm,  company  or  corporation 
owning  or  possessing,  or  having  the  care  or  management  of  any 
railroad,  canal,  steamboat,  ship,"  etc.,  "engaged  or  employed  in 
the  business  of  transporting  passengers  or  property  for  hire."18 

§  6.    Definition  of  a  public  corporation. 

The  term  "public  corporation"  will  be  used  in  this  work  as 
a  generic  one,  and  includes  both  municipal  corporations  proper 
and  public  quasi  corporations.  The  distinction  between  the  two 
is  difficult  of  detection  at  times,  varying  with  the  idea  as  it  ex- 
isted in  the  mind  of  the  court  writing  a  particular  opinion. 
Broadly  speaking,  the  term  "public  corporation"  may  include 
the  state.  It  certainly  includes  all  public  governmental  agents 
or  political  or  governmental  subdivisions,  whatever  their  powers 
or  obligations,  their  rights  or  their  duties,  may  be,  though  some  of 
them  may  n'ot  have,  strictly  speaking,  all  of  the  powers  and  ca- 
pacities of  a  corporation.  The  attributes  of  a  corporation  at- 
tach in  a  varying  degree,  and  yet  they  all  will  be  included  in 
the  class.  Other  definitions  of  public  corporations  are,  "The 
investing  of  the  people  of  a  place  with  the  local  government  there- 
of,"  and  those  found  in  the  other  cases  cited  in  the  note.19 

A  recent  text  book20  defines  a  public  corporation  as  "one  that 
is  created  for  a  political  purpose  with  political  power  to  be  ex- 
ercised for  purposes  connected  with  the  public  good  in  the  ad- 
ministration £f  civil  government.  It  is  an  instrument  of  the 
government,  subject  to  the  control  of  the  legislature,  and  its  mem- 
bers are  officers  of  the  government  appointed  for  the  discharge 
of  public  duties.  In  other  words  a  public  corporation  is  a  corpo- 

is  State  v.  Atkins,  35  Ga.  315.  268;  Rundle  v.  Delaware  &  R.  Canal 

"Cuddon    v.    Eastwick,    1    Salk.  Co.,    14    How.     (U.    S.)     80;     State 

143;    Falconer    v.    Campbell,    2    Me-  Bank   of   Ohio   v.   Knoop,    16    How. 

Lean,    195,    Fed.     Gas.     No.    4,620;  (U.   S.)    369;    Society  for   Propaga- 

Dean   v.    Davis,   51   Cal.   406;    Tins-  tion  of  the  Gospel  v.  Town  of  New 

man  v.  Belvidere   Delaware  R.  Co.,  Haven,  8  Wheat.  (U.  S.)  464;  Bank 

26  N.  J.  Law    (2  Dutch.)   148;   Ben-  of   Alabama    v.    Gibson's    Adm'rs,    6 

nett's  Branch  Imp.  Co.'s  Appeal,  65  Ala.    814;     People    v.    Williams,    56 

Pa.  242;   7  Thompson,  Corp.  §  8140;  Cal.  647;   Reclamation  Dist.  No.  542 

Standard    Diet.    "Corporation;"    Sir  v.  Turner.  104  Cal.  334;   Inhabitants 

James    Smith's    Case,    4    Mod.    52;  of     Yarmouth     v.     Inhabitants     of 

Trustees   for   Vincennes   University  North   Yarmouth,  34   Me.   411. 
v.  State  of  Indiana,  14  How.  (U.  S.)         20  Clark  &  M.  Private  Corp.  §  31. 


§   7  INTRODUCTORY;    DEFINITIONS.  H 

ration  created  merely  for  purposes  of  government,  and  a  private 
corporation  is  one  that  is  created  for  other  purposes  than  those 
of  government." 

§  7.    Definition  of  a  municipal  corporation. 

A  municipal  corporation  has  been  defined  by  Judge  Dillon  as 
"the  incorporation  by  the  authority  of  the  government  of  the  in- 
habitants of  a  particular  place  or  district,  and  authorizing  them  in 
their  corporate  capacity  to  exercise  subordinate,  specified  powers 
of  legislation  and  regulation  with  respect  to  their  local  and  in- 
ternal concerns.  This  power  of  local  government  is  the  distinct- 
ive purpose  and  the  distinguishing  feature  of  a  municipal  corpo- 
ration proper."21 

Bouvier  defines  one  as  "a  public  corporation  created  by  gov- 
ernment for  political  purposes  and  having  subordinate  and  local 
powers  of  legislation."22 

"A  corporation  of  persons,  inhabitants  of  a  particular  place,  or 
connected  with  a  particular  district,  enabling  them  to  conduct 
its  local  civil  government,"  is  still  another  definition  given.  A 
correct  one  should  also  convey  the  idea  that  organized  territory 
of  itself  does  not  constitute  a  municipal  corporation,  but  that  it 
includes  also  the  people  residing  within  that  district.23 

An  excellent  descriptive  definition  is  given  in  a  recent  work:24 
"  Municipal  corporations  are  of  a  twofold  character, — the  one 
public  as  regards  the  state  at  large  in  so  far  as  they  are  its  agents 
in  government ;  the  other  private  in  so  far  as  they  are  to  provide 
local  necessities  and  conveniences  for  their  own  communities. 
And  the  fact  that  the  legislature  has  blended  the  public  and  pri- 
vate functions  of  a  municipal  corporation  in  one  grant  of  power 
does  not  destroy  the  clear  and  well  settled  distinction  between 
them.  In  its  governmental  character  the  corporation  is  made 
by  the  state  a  local  depository  of  certain  limited  and  prescribed 

21  Dillon,    Mun.    Corp.     (4th    Ed.)  Morris,     13    Wend.     (N.     Y.)     325; 
§  20.  Clarke    v.    City    of    Rochester,    24 

22  Bouvier,  Law  Diet.  Barb.  (N.  Y.)  446;  City  of  Philadel- 

23  Kelly  v.  City  of  Pittsburgh,  104  phia  v.  Fox,  64  Pa.  180;   East  Ten- 
U.    S.     78;     City    of    Galesburg    v.  nessee  University  v.  City  of  Knox- 
Hawkinson,    75    111.    152;    People   v.  ville,  65  Tenn.   (6  Baxt.)   166. 
Bennett,    29    Mich.    451;    Heller    v.  2*20   Am.   &  Eng.   Enc.   Law    (2d 
Stremmel,    52    Mo.    309;    People    v.  Ed.)   p.  1131,  and  cases  cited. 


12  INTRODUCTORY;    DEFINITIONS.  §   8 

political  powers,  to  be  exercised  for  the  public  good  of  the  state. 
In  its  proprietary  character  the  theory  is  that  the  powers  are  not 
conferred  chiefly  from  considerations  connected  with  the  govern- 
ment of  the  state  at  large,  but  for  the  private  advantage  of  the 
compact  community  which  is  incorporated  as  a  distinct  legal  per- 
sonality or  corporate  individual."25 

§  8.    Public  quasi  corporations  denned  and  distinguished  from 
municipal. 

Public  quasi  corporations  have  been  denned  as:  "It  is  uni- 
versally agreed  that  all  those  subdivisions  of  state  territory,  such 
as  counties,  townships,  school  districts,  and  like  bodies,  which 
are  created  by  the  legislature  for  public  purposes  and  without 
regard  to  the  wishes  of  their  inhabitants,  are  to  be  included  in 
the  class  known  as  'quasi  corporations.'  They  are  in  essence  local 
branches  of  the  state  government,  though  clothed  with  a  cor- 
porate form  in  order  that  they  may  the  better  perform  the  duties 
imposed  upon  them.  Generally  they  comprise  large  areas  of  ter- 
ritory which  are  but  sparsely  settled,  and  the  relations  of  life 
and  business  existing  within  them  are  extremely  simple. '  '26 

As  illustrating  the  different  legal  character  assigned  to  munici- 
pal or  public  administrative  and  political  organizations,  see  the 
cases  below.27 

25  State   v.   Denny,    118   Ind.   449;  sex  County  v.  Strader,  18  N.  J.  Law 

Soper    v.    Henry    County,   26    Iowa,  (3   Har.)    108;    Cooley,  Const.   Lim. 

264;      Marion     County     Com'rs     v.  247. 

Riggs,   24  Kan.   257;    City  of  Well-  2- A  fire  district  organized  under 

ington   v.  Wellington   Tp.,   46   Kan.  Pub.    St.    Mass.    c.    35,    §§    40-61,    a 

213;   Parker  v.  Scogin,  11  La.  Ann.  quasi     corporation.     Praut     v.     In- 

629;    Small   v.   Inhabitants  of   Dan-  habitants  of  Fire  Dist.  in  Pittsfield, 

ville,   51    Me.    359;    People   v.   Com-  154  Mass.  450. 

mon   Council    of    Detroit,    28   Mich.  A  fire  district  a  quasi  corporation. 

228;     Hamilton    County    Com'rs    v.  Wood   v.   Quimby,   20  R.   I.  482,   40 

Mighels,    7    Ohio    St.    109;    Lehigh  Atl.  161. 

Water   Co.'s     Appeal,   102    Pa.    515;  Board    of    park    commissioners   a 

Atkins  v.  Town  of  Randolph,  31  Vt.  quasi     public     corporation.       West 

226.  Chicago    Park    Com'rs    v.    Western 

2«  Williams,  Mun.  Liab.  Tort,  §  2,  Union    Tel.    Co.,    103    111.    33.     See, 

citing    El    Paso    County    Com'rs  v.  also,  as  holding  such  board  a  munic- 

Bish,  18  Colo.  474;  White  v.  Chowan  ipal   corporation,   the  case  of  West 

Com'rs,    90    N.    C.    437;     Hamilton  Chicago    Park    Com'rs    v.    City    of 

County   Com'rs   v.   Mighels,   7   Ohio  Chicago,  152  111.  392. 

St.  109;  Chosen  Freeholders  of  Sus-  An    irrigation    district    a    public 


§   8  INTRODUCTORY;    DEFINITIONS.  13 

A  corporation  possesses  certain  rights  and  powers,  and  there 
may  be  imposed  upon  it  by  the  sovereign  certain  duties  and  obli- 
gations. Between  the  two  classes  of  public  corporations  under 
discussion  a  marked  difference  is  found  in  these  respects.  This 
follows  from  various  causes,  one  of  which  is  the  fact  that  as  a 

rather    than    a    municipal    corpora-  Carolina  v.   Maultsby,  43  N.    C.    (8 

tion.     Directors    of    Fallbrook    Irr.  Ired.    Eq.)     257;    Trustees    of    Uni- 

Dist.  v.  Abila,  106  Cal.  355;    Direc-  versity   v.    Winston,    5    Stew.   &   P. 

tors  of  Alfalfa  Irr.  Dist.  v.  Collins,  (Ala.)    17. 

46  Neb.  411.  The   governor   of  a  state  as    the 
Boards  of  Health  in  N.  Y.  not  cor-  head  of  the  executive  department  a 
porations  with  power  to  sue  and  be  quasi     corporation.       Governor     v. 
sued.     Gardner  v.  Board  of  Health  Allen,  27  Tenn.   (8  Humph.)   176. 
of   New   York,   10   N.   Y.    (6   Seld.)        A  county  held  not  a   corporation 
409;      People     v.     Monroe     County  within   the  meaning  of  an  act  giv- 
Sup'rs,  18  Barb.   (N.  Y.)   567.  ing  corporations  the  power  of  fund- 
Water    Commissioners    appointed  ing      their      indebtedness.     Pulaski 
under  New  York   Laws  of  1834,   c,  County  v.  Reeve,  42  Ark.  54. 
256,  not  a  corporation.     Appleton  v.        A   county   not   a   corporation    for 
Water  Com'rs  of  New  York,  2  Hill  municipal      purposes.     San      Mateo 
(N.  Y.)   432.  County  v.  Coburn,  130  Cal.   631,  63 
•     Highway   Commissioners  a   quasi  Pac.  78,  621. 

corporation.  Lange  v.  Soffell,  33  A  county  held  a  corporation  un- 
111.  App.  624;  Town  of  Denver  v.  der  eminent  domain  provision  in 
Myers,  63  Neb.  107,  88  N.  W.  191;  the  constitution.  Chester  County 
Road  Com'rs  for  St.  Peter's  Parish  v.  Brower,  117  Pa.  647,  12  Atl.  577. 
v.  McPherson,  1  Spears  (S.  C.)  218.  Generally  not  a  municipal  corpora- 
A  board  of  trustees  organized  to  tion.  In  re  College  Ave.  Bridge,  9 
construct  and  operate  a  canal  for  Pa.  Dist.  R.  15.  A  public  corpora- 
commercial  purposes,  and  supply-  tion.  Maury  County  v.  Lewis 
ing  power,  heat  and  light,  held  not  County,  31  Tenn.  (1  Swan)  236.  A 
a  municipal  corporation.  State  v.  municipal  corporation  within  Laws 
Douglas  County  Com'rs,  47  Neb,  Wis.  1895,  c.  138;  Lund  v.  Chippewa 
428,  66  N.  W.  434.  County,  93  Wis.  640,  67  N.  W.  927. 
Board  of  supervisors  of  a  county,  Counties  quasi  corporations  only, 
as  such  board  and  apart  from  coun-  Granger  v.  Pulaski  County,  26  Ark. 
ty,  held  not  a  corporation.  Boyce  37;  Ray  County  v.  Bentley,  49  Mo. 
v.  Cayuga  County  Sup'rs,  20  Barb.  236;  Laramie  County  Com'rs  v.  Al- 
(N.  Y.)  294.  bany  County  Com'rs,  92  U.  S.  307; 
Judges  authorized  to  take  bonds,  People  v.  Sacramento  County  Sup'rs, 
held  as  to  such  bonds  not  to  confer  45  Cal.  692. 

a  corporate   character.     Justices    of        A  county  a  corporation,  but  people 

Cumberland    v.    Armstrong,    14    N.  within  it  not.     People  v.  Myers,  15 

C.    (3  Dev.)    284.  Cal.   33. 

A    state    university    is    a    public        County     of     Sacramento     not     a 

corporation.     University     of     North  municipal     corporation.     People     v. 


14                                  INTRODUCTORY;    DEFINITIONS.  g   8 

rule  the  government  of  a  public  quasi  corporation  is  imposed  by 
the  sovereign  upon  the  people  residing  within  certain  geo- 
graphical limits,  without  consulting  their  desires  or  wishes.  On 
the  other  hand,  the  government  or  charter  of  a  municipal  corpora- 
Sacramento  County  Sup'rs,  45  Cal.  nicipal  nor  private  corporation,  but 
692.  a  governmental  agent.  People  v. 

A    county    a    public    corporation,  Levee  Dist.   No.   6,   131  Cal.  30,   63 

Coles  v.   County  of  Madison,   1   111.  Pac.  342-676. 

(Breese)     154;    but    a    mere    quasi  The    Tennessee    statutes   creating 

corporation  in  Goodnow  v.  Ramsey  taxing  districts  do  not  make  them 

County   Com'rs,   11   Minn.    31    (Gil.  municipal     corporations.      Williams 

12);    Hannibal   &   St.   J.   R.    Co.   v.  v.   Taxing  Dist.   of   Shelby   County, 

Marion   County,   36   Mo.   294;    Rear-  84  Tenn.   (16  Lea)  531. 

don  v.  St.  Louis  County,  36  Mo.  555;  A   township  a   quasi   corporation. 

Schweiss  v.  First  Judicial  Dist.  Ct.,  Town   of  Valverde   v.    Shattuck,   19 

23  Nev.  226,  45  Pac.  289;   Donalson  Colo.    104,    34   Pac.    947;    Sebrell   v. 

T.   San   Miguel   County,    1   N.   Mex.  Fall  Creek  Tp.,  27  Ind.  86.     A  mu- 

(1  Gild.)    263.  nicipal      corporation.      Sprague      v. 

County  commissioners  in  Ohio  a  Baldwin,    18    Pa.    Co.    Ct.    R.    568; 

continuing        corporation.        Scioto  State  v.  Douglas  County  Com'rs,  47 

Com'rs    v.   Gherky,   Wright    (Ohio)  Neb.  428. 

493.  A    borough    a    public    municipal 

A  county  a  municipal  corporation  corporation.     Borough      of      Ridley 

for  the  issuance  of  bonds.     Ter.  v.  Park    v.    Citizens'     Elec.    Light    & 

Hopkins,  9  Okl.  133.  Power   Co.,    9    Pa.    Super.    Ct.    615; 

County     commissioners     a    quasi  Borough  of  Lansdowne  v.  Delaware 

corporation.     Vankirk   v.   Clark,    16  County   &   P.    Elec.    R.    Co.,    9    Pa. 

Serg.    &    R.     (Pa.)    286;     Irwin    v.  Super.  Ct.  621. 

Northumberland    County   Com'rs,    1  Definition  of  a  town.     Murray  v. 

Serg.    &    R.     (Pa.)     505;     Lyon    v.  Menefee,  20  Ark.  561. 

Adams,  4  Serg.  &  R.    (Pa.)   443.  Certain     towns     in     Connecticut 

Counties  held  corporations  in  created  corporations  by  the  Consti- 
Kentucky.  May  v.  Mercer  County,  tution.  Webster  v.  Town  of  Har- 
80  Fed.  246.  In  Ohio.  May  v.  Lo-  winton,  32  Conn.  131. 
gan  County  Com'rs,  30  Fed.  250.  In  A  town  a  public  quasi  corpora- 
Nevada  under  the  constitution  tion.  People  v.  Village  of  Harvey, 
municipal  corporations.  Vincent  v.  142  111.  573,  32  N.  E.  295;  In- 
Lincoln  County,  30  Fed.  749.  In  habitants  of  Fourth  School  Dist.  v. 
California.  Nash  v.  El  Dorado  Wood,  13  Mass.  193;  Shronk  v.  Penn 
County,  24  Fed.  252.  Tp.  Sup'rs,  3  Rawle  (Pa.)  347; 

A    board    of    levee    inspectors    a  Hopple   v.   Trustees  of   Brown   Tp., 

municipal    corporation.      Levee    In-  13  Ohio  St.  311;   Woodruff  v.  Town 

spectors   of   Chicot  County  v.   Grit-  of  Glendale,  23  Minn.  537. 

tenden,    94    Fed.    613,   36    C.    C.    A.  The   word    "town"    held    to   be    a 

418.  generic  term  including  cities:     Van 

A  levee  district  is  neither  a  mu-  Riper  v.  Parsons,  40  N.  J.  Law,  1; 


INTRODUCTORY;    DEFINITIONS. 


15 


tion  proper  is  usually  suggested  by  the  sovereign  and  adopted  or 
accepted  by  the  people  residing  within  a  certain  district.  The 
fact  that  the  government  or  organization  is  imposed  in  the  one 
case  and  adopted  or  accepted  in  the  other  leads  to  the  correlative 
part  of  the  proposition,  namely,  the  relative  duties  and  obliga- 


Whitall  v.  Chosen  Freeholders  of 
Gloucester  County,  40  N.  J.  Law, 
302. 

Towns  regarded  as  public  quasi 
corporations.  Town  of  North 
Hempstead  v.  Town  of  Hempstead, 
2  Wend.  (N.  Y.)  109;  People  v. 
Morris,  13  Wend.  (N.  Y.)  325.  But 
not  included  in  the  term  "munic- 
ipal corporations."  Eaton  v.  Mani- 
towoc  County  Sup'rs,  44  Wis.  489. 

State  contributions  to  the  support 
of  an  asylum  founded  and  owned 
by  a  county  held  not  to  make  it  a 
state  or  public  institution.  Chal- 
fant  v.  State,  37  Ohio  St.  60. 

A  board  of  school  commissioners 
a  municipal  corporation.  Horton 
v.  Mobile  School  Com'rs,  43  Ala. 
598;  Mobile  School  Com'rs  v.  Put- 
nam, 44  Ala.  506;  School  Dist.  No. 
7  v.  Reeve,  56  Ark.  68,  19  S.  W. 
106. 

Trustees  of  public  schools  a  pub- 
lic corporation.  Bush  v.  Shipman, 
5  111.  (4  Scam.)  186;  Trustees  of 
Schools  v.  Tatman,  13  111.  27. 

Trustees  of  school  districts  or 
school  townships  not  municipal 
corporations  with  power  to  issue 
bonds.  Trustees  of  Schools  v.  Peo- 
ple, 63  111.  299;  People  v.  Dupuyt, 
71  111.  651;  People  v.  Trustees  of 
Schools,  78  111.  136. 

In  Iowa  a  school  district  is  a 
municipal  corporation.  Curry  v. 
District  Tp.  of  Sioux  City,  62  Iowa, 
102;  Winspear  v.  District  Tp.  of 
Holman,  37  Iowa,  542. 

In  Kansas  a  quasi  corporation. 
Beach  v.  Leahy,  11  Kan.  23. 


School  commissioners  a  quasi 
corporation.  O'Neal  v.  School 
Com'rs  of  Washington  County,  27 
Md.  227;  Littlewort  v.  Davis,  50 
Miss.  403;  Farnum's  Petition,  51  N. 
H.  376. 

The  board  of  education  of  Roch- 
ester, N.  Y.,  is  a  corporation  to  a 
qualified  extent.  People  v.  Lathrop, 
19  How.  Pr.  (N.  Y.)  358. 

Common  school  districts  not  cor- 
porations within  the  meaning  of 
Ohio  Const,  art.  13,  §  1.  State  v. 
Powers,  38  Ohio  St.  54. 

A  board  of  school  directors  a 
civil  corporation.  State  v.  Bremond, 
38  Tex.  116.  A  school  district  held 
a  municipal  corporation  in  State  v. 
Grimes,  7  Wash.  270;  but  not  in 
Stroud  v.  City  of  Stevens  Point,  37 
Wis.  367. 

Overseers  of  the  Poor  in  New 
York,  a  corporation  sub  modo. 
Rouse  v.  Moore,  18  Johns.  (N.  Y.) 
407;  Governor  v.  Gridley,  1  Miss. 
(Walk.)  328;  Pomeroy  v.  Wells,  8 
Paige  (N.  Y.)  406;  Van  Keuren  v. 
Johnston,  3  Denio  (N.  Y.)  183. 

A  body  charged  with  the  adminis- 
tration of  ministerial  and  financial 
duties  pertaining  to  a  county  held 
to  be  a  quasi  corporation.  Levy 
Ct.  of  Washington  County  v.  Cor- 
oner, 69  U.  S.  (2  Wall.)  501. 

In  New  Mexico,  under  Comp. 
Laws  1897,  §  1564,  town  boards  of 
education  held  to  be  municipal  cor- 
porations. Board  of  Education  of 
Eddy  v.  Bitting,  9  N.  Mex.  (9  Gild.) 
588. 

A  levy  court  a  quasi  corporation. 


16 


INTRODUCTORY;    DEFINITIONS. 


§   8 


tions  of  the  two  classes  of  corporations.  And  we  find  upon  an 
examination  of  the  authorities  that  the  duties  and  obligations 
resting  upon  the  public  quasi  corporations  are  less  in  number, 
and  these  less  burdensome,  than  those  which  devolve  upon  the 
municipal  corporation  proper.  The  people  residing  within  a 
municipal  corporation  are  given  a  greater  latitude  and  degree  of 
local  self  government,  in  adopting  measures  looking  to  their  local 
advantage,  than  those  residing  within  a  public  quasi  corporation ; 
and  as  their  powers  and  duties  are  not  thrust  upon  them,  but 
acquired  voluntarily  to  a  large  extent,  it  follows  as  just  and 
proper  that  their  obligations  and  duties  be  in  the  same  measure 
increased  and  of  a  higher  character.  A  full  discussion  will  be 
found  under  the  proper  subject  in  the  succeeding  sections  of  this 
work.28 


Levy  Ct.  of  Washington  County  v. 
Coroner,  69  U.  S.  (2  Wall.)  501. 

The  provisional  governments 
adopted  for  the  management  of 
towns  and  cities  in  the  Territory  of 
Oklahoma  prior  to  Act  Cong.  May 
2,  1890,  are  held  to  be  mere  volun- 
tary associations  in  Oklahoma  City 
v.  T.  M.  Richardson  Lumber  Co.,  3 
Okl.  5. 

28  One  of  the  leading  cases  dis- 
cussing these  differences  is  that  of 
Hamilton  County  Com'rs  v. 
Mighels,  7  Ohio  St.  109.  The  court 
in  part  say:  "As  before  remarked, 
municipal  corporations  proper  are 
called  into  existence  either  at  the 
direct  solicitation  or  by  the  free 
consent  of  the  people  who  compose 
them. 

"Counties  are  local  subdivisions  of 
a  state,  created  by  the  sovereign 
power  of  the  state,  of  its  own  sov- 
ereign will,  without  the  particular 
solicitation,  consent,  or  concurrent 
action  of  the  people  who  inhabit 


them.  The  former  organization  is 
asked  for,  or  at  least  assented  to, 
by  the  people  it  embraces;  the  lat- 
ter is  superimposed  by  a  sovereign 
and  paramount  authority. 

"A  municipal  corporation  proper 
is  created  mainly  for  the  interest, 
advantage,  and  convenience  of  the 
locality  and  its  people;  a  county 
organization  is  created  almost  ex- 
clusively with  a  view  to  the  policy 
of  the  state  at  large,  for  purposes 
of  political  organization  and  civil 
administration,  in  matters  of 
finance,  of  education,  of  provision 
for  the  poor,  of  military  organiza- 
tion, of  the  means  of  travel  and 
transport,  and  especially  for  the 
general  administration  of  justice. 
With  scarcely  an  exception,  ail  the 
powers  and  functions  of  the  county 
organization  have  a  direct  and  ex- 
clusive reference  to  the  general 
policy  of  the  state,  and  are,  in  fact, 
but  a  branch  of  the  general  ad- 
ministration of  that  policy." 


CHAPTER  H. 

CORPORATE  LIFE  AND  EXISTENCE. 

I.    CBEATION  AND  DISSOLUTION  OP  CORPORATIONS. 

§     9.  The  power  to  create  a  public  corporation. 

10.  As  existing  in  the  National  government. 

11.  The  states  and  their  power  to  create. 

12.  The  exercise  of  the  power. 

13.  Conditions  precedent;   population. 

14.  Conditions  precedent;   area  and  physical  characteristics. 

15.  Mode  of  creation. 

16.  By  implication. 

17.  By  affirmative  action. 

18.  Petition  and  notice. 

19.  The  election. 

20.  Subsequent  official  action. 

21.  Incorporation  without  an  election. 

22.  The  charter  of  a  public  corporation  and  its  legal  nature. 

23.  Rules  of  construction. 

24.  The  charter  considered  as  evidence. 

25.  Acceptance. 

26.  Distinction  between  a  public  quasi  and  a  municipal  cor- 

poration in  this  regard. 

27.  Amendment  of  the  charter. 

28.  By  implication  or  indirection. 

29.  Effect  of  amendments. 

30.  Repeal  of  charter. 

31.  Effect  of  repeal. 

32.  Corporate  existence,  and  the  doctrine  of  collateral  attack. 

33.  The  dissolution  of  the  corporation  and  its  effects. 

34.  Forfeiture  of  charter. 

II.     TERRITORIAL  CHANGES  AND  THEIR  EFFECT. 

...     •      §  35.  Boundaries;  their  enlargement. 

36.  Location  or  character  of  territory  annexed. 

37.  Petition  for  annexation. 

38.  Notice  necessary. 

39.  Objections  to  annexation. 

40.  Official  declaration  and  right  of  appeal. 

41.  Effect  of  annexation  upon  those  concerned. 

42.  Division  of  public  corporations  and  the  authority. 

43.  Character  of  the  district  divided   or   disconnected. 

Abb  Corp. — 2. 


18  CORPORATE  LIFE;  EXISTENCE.  §  9 

44.  Mod«  of  division,  with  official  declarations. 

45.  Effects  of  annexation  or  division  upon  public  property  and 

liabilities. 

46.  Division  or  adjustment  of  debts  and  liabilities. 

47.  The  legal  authority;  where  existing. 

48.  Agency  of  apportionment. 

49.  Character  or  form  of  indebtedness. 

50.  Division  of  assets. 

51.  Agency  for  division  of  assets. 

III.     CORPORATE  NAME  AND  BOUNDARIES. 

§  52.  Existence  of  a  public  corporation. 

53.  Name  of  the  corporation. 

54.  The  seal  and  its  use. 

55.  Corporate  boundaries. 

56.  Definition  of  corporate  boundaries. 

57.  Corporate  boundaries;  how  established. 

58.  Boundary  lines;  agency  for  their  establishment. 

59.  Proceedings  for  the  establishment  of  corporate  boundaries 

and  miscellaneous  matters  in  connection  therewith. 

60.  Objections  to  the  establishment  of  corporate  boundaries. 

61.  Location  of  corporate  boundaries. 

62.  Appeal  from  order  fixing  corporate  boundaries. 
63.     Change  of  corporate  boundary. 

64.  Judicial  recognition. 

65.  Effect  of  the  establishment  or  change  of  a  boundary  line. 

66.  Seat  of  government. 

67.  Original  location  of  a  county  seat. 

68.  Removal  of  a  county  seat. 

69.  Petition  for  removal. 

70.  Its  form  and  averments. 

71.  Petition  and  its  signers. 

72.  Signers'  right  of  withdrawal. 

73.  Petition  for  removal;  its  filing.     Notice. 

74.  Official  action. 

75.  Time  and  manner  of  election. 

76.  Qualifications  of  voters. 

77.  Votes  necessary  to  a  removal. 

78.  Canvass  and  return  of  votes. 

79.  Contests. 

80.  Authority  of  commissioners. 

81.  Declaration  of  the  result  and  its  effect 

I.    CREATION  AND  DISSOLUTION  OF  CORPORATIONS. 
§  9.    The  power  to  create  a  public  corporation. 

From  the  fact  that  all  corporations  are  artificial  persons,  it 

follows  that  they  must  be  created  by  a  sovereign  power,  or  the 


CREATION    AND    DISSOLUTION. 


19 


state.  They  may  be  organized  or  incorporated  pursuant  to  gen- 
eral directions  found  in  the  constitution  of  the  state,  the  provi- 
sions of  general  enabling  acts  or  statutes,  or  through  or  by  means 
of  a  special  act  or  special  charter  granted  by  the  legislature  of 
the  state  when  not  in  contravention  of  a  constitutional  provision 
prohibiting  the  passage  of  special  legislation. 

A  brief  resume  of  constitutional  provisions  regarding  the  crea- 
tion of  corporations  will  be  found  in  the  subjoined  note.1 


i  An  extended  discussion  of  the 
constitutional  provisions  in  some 
states  will  be  found  in  the  notes 
in  Dillon,  Mun.  Corp.  (4th  Ed.)  pp. 
79  et  seq.,  and  Beach,  Pub.  Corp. 
pp.  59  et  seq. 

Alabama:  Corporations  may  be 
formed  under  general  laws,  but 
shall  not  be  created  by  special  act, 
except  for  municipal,  manufactur- 
ing, mining,  immigration,  indus- 
trial and  educational  purposes,  or 
for  constructing  canals,  or  improv- 
ing navigable  rivers  and  harbors  of 
this  state,  and  in  cases  where  in  the 
judgment  of  the  general  assembly 
the  objects  of  the  corporations  can- 
not be  attained  under  general  laws. 
All  general  laws  and  special  acts 
passed  pursuant  to  this  section  may 
be  altered,  amended  or  repealed. 
Const.  1875,  art.  14,  §  1. 

Arkansas:  The  general  assembly 
shall  pass  no  special  act  conferring 
corporate  powers,  except  for  char- 
itable, educational,  penal  or  re- 
formatory purposes,  where  the  cor- 
porations created  are  to  be  and  re- 
main under  the  patronage  and  con- 
trol of  the  state.  Const.  1874,  art. 
12,  §  2. 

California:  Corporations  may  be 
formed  under  general  laws  but 
shall  not  be  created  by  special  act 
except  for  municipal  purposes.  All 
general  laws  and  special  acts  pass- 
ed pursuant  to  this  section  may  be 


altered  from  time  to  time  or  re 
pealed.  Const.  1849,  art.  4,  §  31. 

Colorado:  No  charter  of  incor- 
poration shall  be  granted,  extended, 
changed  or  amended  by  special  law 
except  for  such  municipal,  charita- 
ble, educational,  penal  or  reforma- 
tory corporations  as  are  or  may  be 
under  the  control  of  the  state;  but 
the  general  assembly  shall  provide 
by  general  laws  for  the  organization 
of  corporations  hereafter  to  be 
created.  Const.  1876,  art.  15,  §  2. 

Florida:  The  legislature  shall 
provide  by  general  law  for  incor- 
porating such  municipal,  educa- 
tional, agricultural,  mechanical, 
mining  and  other  useful  companies 
or  associations  as  may  be  deemed 
necessary.  Const.  1868,  art.  4,  §  22. 

Illinois:  The  general  assembly 
shall  not  pass  local  or  special  laws 
in  any  of  the  following  enumerated 
cases;  that  is  to  say  for  *  *  * 
incorporating  cities,  towns  or  vil- 
lages, or  changing  or  amending  the 
charter  of  any  town,  city  or  vil- 
lage. Const.  1870,  art.  4,  §  22. 

No  corporation  shall  be  created 
by  special  laws  *  *  *  except 
those  for  charitable,  educational, 
penal  or  reformatory  purposes, 
which  are  to  be  and  remain  under 
the  patronage  and  control  of  the 
state,  but  the  general  assembly 
shall  provide  by  general  laws  for 
the  organization  of  all  corporations 


20                                 CORPORATE  LIFE;  EXISTENCE.  §  9 

This  is  true  of  all  classes  of  corporations,  including  the  various 
subdivisions  of  public  corporations.  As  the  latter  are  govern- 
hereafter  to  be  created.  Const,  except  for  municipal  purposes.  All 
1»70,  art.  11,  §  1.  laws  passed  pursuant  to  this  sec- 
Indiana:  Corporations,  other  tion  may  be  amended,  altered  or  re- 
than  banking,  shall  not  be  created  pealed.  Const,  art.  15,  §  1. 
by  special  act,  but  may  be  formed  Minnesota:  No  corporation  shall 
under  general  laws.  Const.  1851,  be  formed  under  special  acts  except 
art.  11,  §  13.  for  municipal  purposes.  Const. 

Iowa:       The     general     assembly  1857,  art.  10,  §  2. 

shall  not  pass  local  or  special  laws  Mississippi:    Corporations      shall 

in     the     following     cases     *     *     *  be  formed  under  general  laws  only. 

for  the  incorporation  of  cities  and  Const.  1890,  art.  7,  §  178. 

towns.     Const.  1857,  art.  3,   §  30.  Missouri:    The   general    assembly 

Kansas:    Corporations     may     be  shall  not  pass  any  local  or  special 

created  under  general  laws.     Const,  law     *     *     *     creating  corporations 

1859,  art.  12,  §  1.  or    amending,    renewing,    extending 

Provision  shall  be  made  by  gen-  or  explaining  the  charter  thereof, 
era!  law  for  the  organization  of  Const.  1875,  art.  4,  §  53. 
cities,  towns,  and  villages;  and  Nebraska:  No  corporation  shall 
their  power  of  taxation,  assessment,  be  created  by  special  law  *  *  * 
borrowing  money,  contracting  debts  except  those  for  charitable,  educa- 
and  loaning  their  credit  shall  be  so  tional,  penal  or  reformatory  pur- 
restricted  as  to  prevent  the  abuse  poses  which  are  to  be  and  remain 
of  such  power.  Const.  1859,  art.  12,  under  the  patronage  and  control  of 
§  5.  the  state,  but  the  legislature  shall 

Louisiana:       Corporations     shall  provide  by  general  laws  for  the  or- 

not  be  created  in  this  state  by  spe-  ganization  of  all  corporations  here- 

cial  laws  except  for  political  or  mu-  after    to   be    created.    Const.    1875, 

nicipal   purposes.    Const.  1845,  art.  art.  11,  §  1   (Misc.). 

123.  Nevada:    The     legislature     shall 

Maine:    Corporations     shall     not  pass  no  special  act  in  any  manner 

be  created  by  special  act  except  for  relating  to  corporate  powers,  except 

municipal     purposes,     etc.       Const,  for    municipal    purposes;    but    cor- 

(Amend.  1876)  art.  4,  §  14.  porations    may    be    formed    under 

Maryland:    The  general  assembly  general    laws,    and    all    such    laws 

shall  not  pass  local  or  special  laws  may,  from  time  to  time,  be  altered 

in  any  of  the  following  enumerated  or  repealed.     Const.  1864,  art.  8,  §  1. 

cases.      *      *      *      The    general    as-  New        Jersey:       General      laws. 

sembly  at  its  first  session  after  the  Const.    1875    (as    amended)    art.    4, 

adoption   of  this   constitution   shall  §  7,  par.  11. 

pass   general   laws     *     *     *     where  New  York:    Corporations  may  bo 

a  general  law  can  be  made  applica-  formed    under    general    laws;     but 

ble.     Const.  1867,  art.  3,  §  33.  shall  not  be  created  by  special  act 

Michigan:    Corporations    may    be  except  for  municipal  purposes,  and 

formed     under     general     laws     but  in  cases  where  in  the  judgment  of 

shall  not  be  created  by  special  act,  the   legislature,   the   objects   of   the 


CREATION    AND    DISSOLUTION. 


21 


mental  agents,  incorporated  or  organized  for  the  sole  purpose, 
so  far  as  their  public  duties  are  concerned,  of  aiding  the  state  in 
the  administration  of  government,  the  necessity  or  expediency  of 
incorporating  them  should  be  decided,  having  reference  to  the 
advantages  and  interests  of  the  whole  people,  as  well  as  those 
within  the  lines  of  the  proposed  corporation.2 

The  organization  of  municipal  corporations  whereby  their  mem- 
bers exercise  political  rights  and  duties  is  a  marked  feature  of 
American  government.  It  is  based  on  the  fundamental  idea  that 
the  people  are  the  source  of  all  power  and  have  the  inherent  right 
to  exercise  it  vrhenever  they  see  fit  to  do  so.  "This  is  with  us 
no  mere  rhetorical  declamation,  but  a  foundation  principle  upon 
which  our  political  institutions  rest."  As  local  matters  can  best 


corporation  cannot  be  attained  un- 
der general  laws.  Const.  1846,  art. 
8,  §  1. 

North  Carolina:  Corporations 
may  be  formed  under  general  laws 
but  shall  not  be  created  by  special 
act  except  for  municipal  purposes. 
Const.  1876,  art.  8,  §  1. 

North  Dakota:  The  general  as- 
sembly shall  not  pass  any  special 
law,  incorporating  cities,  towns  or 
villages.  Const.  1889,  §  69,  par.  33. 

Ohio:  Corporations  may  be 
formed  under  general  laws  and  all 
such  laws  may  be  altered  or  repeal- 
ed. Const.  1851,  art.  13,  §  2. 

Oregon:  Corporations  may  be 
formed  under  general  laws  but  shall 
not  be  created  by  special  laws,  ex- 
cept for  municipal  purposes. 
Const.  1857,  art.  11,  §  2. 

Pennsylvania:  The  general  as- 
sembly shall  not  pass  any  special 
law  incorporating  cities,  towns,  or 
villages  or  changing  their  charters. 
Const.  1873,  art.  3,  §  7. 

Rhode  Island:  Created  by  special 
act.  Const,  (as  amended)  art.  4, 
§  17. 

South  Carolina:  Corporations 
may  be  formed  under  general  laws. 
Const.  1868,  art.  12,  §  1. 


South  Dakota:  Municipal  cor- 
porations shall  be  formed  under 
general  laws  and  may  be  divided 
into  not  exceeding  four  classes. 
Const.  1889,  art.  10,  §  1. 

Tennessee:  No  corporation  shall 
be  created,  or  its  powers  increased 
or  diminished,  by  special  laws. 
Const.  1870,  art  11,  §  8. 

Texas:  Municipal  corporations 
are  organized  by  general  or  special 
law  according  to  population. 
Const.  1876,  art.  11. 

West  Virginia:  The  legislature 
shall  not  pass  any  law  incorporat- 
ing cities,  towns,  or  villages  con- 
taining a  population  of  less  than 
2,000.  Const.  1872,  art.  6,  §  39. 

Wisconsin:  Corporations  shall 
not  be  created  by  special  act  save 
for  municipal  purposes.  Const. 
1848,  art.  11,  §  1. 

In  Connecticut,  Delaware,  Geor- 
gia, Kentucky,  Massachusetts,  Mon- 
tana, New  Hampshire,  Vermont  and 
Virginia,  the  subject  is  left  to  leg- 
islative discretion,  there  being  no 
constitutional  provisions  bearing 
upon  the  subject. 

2  In  re  Millville  Borough,  10  Pa. 
Co.  Ct.  R.  321. 


22  CORPORATE  LIFE;  EXISTENCE.  §10 

be  regulated  by  the  people  of  the  locality,  we  have  it  so,  rather 
than  allow  the  central  power  to  govern  in  these  respects.  This 
policy  runs  back  into  our  earliest  history,  is  seen  in  all  state 
legislation,  and  is  guarantied  by  a  greater  number  of  state  con- 
stitutions. In  this  connection  a  quotation  from  De  Tocqueville 
may  not  be  amiss:  "Local  assemblies  of  citizens  constitute  the 
strength  of  free  nations.  Municipal  institutions  are  to  liberty 
what  primary  schools  are  to  science;  they  bring  it  within  the 
people's  reach;  they  teach  men  how  to  use  and  how  to  enjoy  it. 
A  nation  may  establish  a  system  of  free  government,  but  without 
the  spirit  of  municipal  institutions  it  cannot  have  the  spirit  of 
liberty."3 

Formerly  in  England  public  corporations  were  created  by  a 
royal  charter  or  act  of  parliament.  This  necessarily  led  to  the 
granting  of  favors  or  exemptions  to  some,  not  enjoyed  or  pos- 
sessed by  others,  and  abuses  crept  into  the  granting  of  charters 
to  such  an  extent  that  in  1835,  as  a  reformatory  measure,  the 
municipal  corporations  act  of  5  and  6  Wm.  IV.  c.  76,  was  passed. 
From  time  to  time  amendments  were  made  to  this  act  as  sug- 
gested by  defects  in  the  original  bill,  and  in  1882  bjr  45  and  46 
Viet.  c.  50  (L.  R.  18,  Stat.  205),  the  act  of  1835  with  its  various 
amendments  was  remodeled  and  consolidated,  and  since  that 
date  all  public  corporations  in  England,  of  whatever  grade,  have 
been  incorporated  under  the  same  conditions  and  possess  the 
same  general  powers. 

In  the  United  States  the  power  to  create  corporations  is  lodged 
in  the  Federal  government  and  in  the  various  state  governments 
as  quasi  independent  sovereigns.* 

§  10.    As  existing  in  the  National  government. 

The  theory  which  sustains  the  right  of  the  Federal  government 
to  create  a  corporation,  either  public  or  private,  is  that,  while 
not  one  of  the  enumerated  sovereign  powers  or  ends  of  govern- 
ment, it  may  be  the  means  of  carrying  into  effect  those  granted. 
This  power  was  denied  the  Federal  government  at  first,  but  the 

s  De    Tocqueville,    Democracy    in        *  McCulloch       v.       Maryland.       4 

America,  c.  5;  People  v.  Hurlbut,  24  Wheat.  (U.  S.)  316;  Osborn  v.  Bank 

Mich.  44;    People  v.  Common  Coun-  of    U.    S.,    9    Wheat.     (U.    S.)    738; 

cil  of    Detroit,  28   Mich.  228;    State  Daly    v.    National    L.     Ins.    Co.,    64 

v.  Noyes,  30  N.  H.  292.  Ind.  I. 


§  11  CREATION    AND    DISSOLUTION.  23 

doctrine  is  firmly  established,  and  we  find  Congress  passing  laws 
creating  or  incorporating  municipal  and  public  quasi  corpora- 
tions in  the  District  of  Columbia  and  other  territory  under  the 
sole  jurisdiction  of  the  Federal  government.  It  has  not  yet  at- 
tempted to  create  or  organize  such  corporations  within  the  terri- 
torial limits  of  the  different  states.5 

The  municipal  corporation,  the  District  of  Columbia,  was  or- 
ganized under  act  of  Congress  of  February  21,  1871  (16  Stat. 
419).  Its  validity  being  called  in  question,  the  supreme  court 
of  the  United  States  uses  the  following  language:  "A  munic- 
ipal corporation  in  the  exercise  of  all  of  its  duties,  including 
those  most  strictly  local  o~r  internal,  is  but  a  department  of 
the  state.  The  legislature  may  give  it  all  the  powers  such  a 
being  is  capable  of  receiving,  making  it  a  miniature  state  within 
its  locality.  Again,  it  may  strip  it  of  every  power,  leaving  it  a 
corporation  in  name  only;  and  it  may  create  and  recreate  these 
changes  as  often  as  it  chooses,  or  it  may  itself  exercise  direct- 
ly within  the  locality  any  or  all  the  powers  usually  committed 
to  a  municipality.  We  do  not  regard  its  acts  as  sometimes  those 
of  an  agency  of  the  state,  and  at  others  those  of  a  municipality, 
but  that,  its  character  and  nature  remaining  at  all  times  the 
same,  it  is  great  or  small  according  as  the  legislature  shall  ex- 
tend or  contract  the  sphere  of  its  action."6 

§  11.    The  states  and  their  power  to  create. 

The  states,  being  quasi  independent  sovereigns  or  govern- 
ments not  of  enumerated  powers,  possess  the  usual  attributes  of 
such  sovereignty,  including  the  creation  of  artificial  persons; 
and  in  the  exercise  of  this  power  it  has  been  held  that  no  pre- 
cise form  of  words  is  necessary  to  create  a  corporation.  If  the 
intent  of  the  legislature  is  clearly  established,  that  is  sufficient.7 

s  Madison     Federalist,     Sept.     14,  Burnes  v.  City  of  Atchison,   2  Kan. 

1787;     Jefferson's    Memoirs     (1829)  454;      McCulloch     v.     Maryland,     4 

523,    526;     House    Documents,    50th  Wheat.  (U.  S.)  316;  Osborn  v.  Bank 

Cong.,  1st  Sess.  House  Report  Num-  of    U.    S.,    9    Wheat.    (U.    S.)    738; 

ber      530.      "Bill      to       incorporate  Thomson   v.   Union   Pac.  R.    Co.,  76 

the    Maritime     Canal    Company    of  U.  S.  (9  Wall.)   579. 

Nicaraugua."     Barnes  v.  District  of  s  Barnes   v.  District  of  Columbia, 

Columbia,    91    U.    S.    540;     Stouten-  91  U.  S.  540. 

burgh    v.    Hennick,    129    U.    S.    141;  ~  2    Kent,   Comm.    27;    Mahony   v. 

Deitz  v.  City  of  Central,  1  Colo.  323;  Bank  of  the  State,  4  Ark.  620;  Peo- 


24 


CORPORATE  LIFE;  EXISTENCE. 


It  is  impossible  within  the  limits  of  this  work  to  discuss  in 
detail  all  the  constitutions,  general  and  special  acts,  under 
which  public  corporations  may  be  or  have  been  created.  A 
brief  reference  to  many  of  the  more  important  cases  will  be 
found  in  the  note.8 

The  states,  as  already  suggested,  being  sovereign  and  inde- 
pendent except  as  limited  by  the  constitution  of  the  United 
States,  have  the  power  to  create  corporations  for  public  pur- 
poses, with  all  the  means  of  self-government,  including  that  of 
levying  taxes  for  local  purposes,9  and  the  possession  of  this 
power  implies  the  further  right  to  create  them  with  such  limita- 
tions and  omissions  as  the  legislative  body  may  see  fit  to  make.10 

And  it  has  even  been-  held  that  a  grant  from  the  sovereign 
authority,  of  lands  to  be  held  for  public  purposes  of  a  munic- 
ipal nature,  to  a  body  of  men,  with  their  associates  and  succes- 
sors, confers  a  quasi  corporate  capacity.11 

The  power,  however,  to  incorporate,  possessed  by  the  legisla- 
ture, since  it  is  itself  one  delegated,  cannot  usually  be  delegated 
to  subordinate  bodies  or  officers,  either  legislative,  judicial  or 


pie  v.  City  of  Riverside,  70  Cal.  461; 
Stebbins  v.  Jennings,  27  Mass.  (10 
Pick.)  172;  New  Boston  v.  Dunbar- 
ton,  12  N.  H.  409;  Bow  v.  Aliens- 
town,  34  N.  H.  351,  372;  Thomas  v. 
Dakin,  22  Wend.  (N.  Y.)  9,  84; 
Denton  v.  Jackson,  2  Johns.  Ch.  (N. 
Y.)  326;  State  v.  Covington,  29 
Ohio  St.  102;  Goshorn  v.  Ohio  Coun- 
ty Sup'rs,  1  W.  Va,  308. 

s  See  §  9,  note  1,  with  extended 
references.  Sessions  v.  State,  115 
Ga.  18,  41  S.  E.  259  (construing  Acts 
Ga.  1872,  p.  248) ;  Town  of  Decorah 
v.  Bullis,  25  Iowa,  12  (Act  of  1858 
concerning  incorporation  of  towns 
and  cities  held  not  to  apply  to  De- 
corah,  Iowa). 

The  town  of  West  Covington. 
Maltus  v.  Shields,  59  Ky.  (2  Mete.) 
553;  Watts  v.  Village  of  Port  De- 
posit, 46  Md.  500. 

The  town  of  Mankato.  Village  of 
Mankato  v.  Meagher,  17  Minn.  265 
(Gil.  243). 


Port  Gibson,  Mississippi.  Port 
Gibson  v.  Moore,  21  Miss.  (13 
Smedes  &  M.)  157. 

Carson  City,  Nevada.  State  r. 
Swift,  11  Nev.  128;  Oklahoma  City 
v.  T.  M.  Richardson  Lumber  Co.,  3 
Okl.  5;  Douglass  v.  Town  of  Harris- 
ville,  9  W.  Va.  162. 

» Hope  v.  Deaderick,  27  Tenn.  (8 
Humph.)  1;  Nichol  v.  City  of  Nash- 
ville, 28  Tenn.  (9  Humph.)  252; 
Sessions  v.  State,  115  Ga.  18,  41  S. 
E.  259;  Carr  v.  McCampbell,  61  Ind. 
97;  Owen  v.  Sioux  City,  91  Iowa, 
190,  59  N.  W.  3;  Cheaney  v.  Hooser, 
48  Ky.  (9  B.  Mon.)  330;  State  v. 
Stuht,  52  Neb.  209,  71  N.  W.  941. 

10  State  v.  Stuht,  52  Neb.  209,  71 
N.    W.    941;    Redell    v.    Moores,    63 
Neb.  219,   88  N.  W.    243;    Butler  v. 
Town  of   Montclair,   67  N.  J.  Law, 
426,  51  Atl.  494. 

11  Den  d.  Town  of  Bath  Com'rs  v. 
Boyd,  23  N.  C.    (1  Ired.)   194;   Den- 
ton  v.  Jackson,  2  Johns.  Ch.  (N.  Y.) 


§   12  CREATION    AND    DISSOLUTION.  25 

ministerial  in  their  character,  though  the  rule  would  not  apply 
to  purely  clerical,  mechanical  or  ministerial  acts.12 

§  12.    The  exercise  of  the  power. 

The  constitution  of  a  state  is  the  written  expression  of  the 
sovereign  will.  Early  constitutions  as  a  rule  contained  no  pro- 
visions for  the  organization  of  public  corporations,  limiting  or 
defining  the  power  of  the  legislature  in  this  respect.  Those 
adopted  of  late  years,  however,  or  recent  amendments,  usually 
provide  in  terms  for  their  creation.  Where  they  fail  in  this  last 
regard,  however,  they  direct  the  passage  of  general  laws  by  the 
legislature  effecting  the  same  result  and  delegating  to  that  body 
the  usual  discretion  as  to  the  details  of  such  incorporation.13 

In  Wisconsin  the  legislature  may  delegate  this  power  when 
and  how  it  sees  fit,  the  constitution  of  that  state  providing  that 
"the  legislature  may  confer  on  the  boards  of  supervisors  of  the 
several  counties  such  powers,  of  a  local,  legislative  and  adminis- 
trative character,  as  they  shall  from  time  to  time  prescribe." 
Existing  statutes  delegated  to  the  county  boards  of  the  several 
counties  the  power  to  set  off,  organize,  vacate  and  change  the 
boundaries  of  the  towns  in  their  respective  counties.  A  special 
act  provided  for  the  division  of  a  county  into  three  towns  and 
recited  that  none  of  the  towns  should  be  divided  until  the  ques- 
tion was  submitted  to  the  legal  electors  of  the  towns  to  be 
affected.  It  was  held  not  unconstitutional  as  a  discrimination 
between  counties,  for  the  legislature  had  power  to  resume  the 
authority  it  had  conferred  upon  the  county  boards.14 

In  the  absence  of  constitutional  provisions  or  of  general  laws, 
some  states  have  adopted,  as  their  settled  policy,  the  creation 
of  public  corporations  by  the  passage  of  special  acts  granting 
charters  containing  special  powers  and  privileges  to  the  in- 
habitants of  a  particular  district. 

320;    Town  of   North-Hempstead   v.  San    Jose,    104    Cal.    642;    City    of 

Town   of  Hempstead,   2  Wend.    (N.  Americus    v.    Perry,    114    Ga.    1004, 

Y.)    109;    People   v.    Schermerhorn,  40  S.  E.  1004;   People  v.  Cooper,  83 

19  Barb.   (N.  Y.)   540.  111.  585;   Wyandotte  v.  Wood,  5  Kan. 

12  People    v.     Bancroft,    2    Idaho,  603.     Compare  Kilgore  v.  Magee,  85 

1077,   29  Pac.  112.     But  see  contra,  Pa.  401. 
State  v.  Forest  County,  74  Wis.  610.        "  State  v.  Forest  County,  74  Wis. 

is  See  section  9;  Brooks  v.  Fisch-  610. 
er.   79   Cal.   173;    Darcy   v.   City   of 


26 


CORPORATE  LIFE;  EXISTENCE. 


Public  corpprations  may,  then,  be  organized  or  created  under 
constitutions  or  general  laws  pursuant  to  constitutional  pro- 
visions fixing  universal  terms  and  conditions  upon  which  they 
may  be  organized,  or  special  acts  conferring  special  powers  and 
privileges.  The  legislature,  in  the  absence  of  constitutional  pro- 
visions, possesses  the  power,  as  the  legislative  branch  or  body 
of  the  sovereign,  to  pass  laws  general  or  special  in  their  nature, 
subject  only  to  constitutional  restrictions  applying  to  all  legis- 
lation.15 

In  the  notes  will  be  found  references  to  a  number  of  cases  dis- 
cussing and  determining  the  validity  of  special  acts,  some  of 
these  questioned  upon  the  constitutional  ground  of  special  legis- 
lation, others  for  reasons  applying  to  legislation  in  general,  and 
still  others  for  some  inherent  vice,16  the  limits  of  this  work  pre- 


is  Rathbone  v.  Kiowa  County 
Com'rs,  27  C.  C.  A.  477,  83  Fed.  125; 
Rauer  v.  Williams,  118  Cal.  401; 
Swamp  Land  Dist.  No.  150  v.  Sil- 
ver, 98  Cal.  51;  Ayeridge  v.  Social 
Circle  Com'rs,  60  Ga.  404;  State  v. 
Steunenberg,  5  Idaho,  1,  45  Pac.  462; 
City  of  Wardner  v.  Pelkes  (Idaho) 
69  Pac.  64;  Guild  v.  City  of  Chica- 
go, 82  111.  472;  People  v.  Pike,  197 
111.  449;  Larcom  v.  Olin,  160  Mass. 
102;  People  v.  Bennett,  29  Mich. 
451;  State  v.  City  of  Thief  River 
Falls,  78  Minn.  15,  78  N.  W.  867; 
State  v.  County  Court  of  Vernon 
County,  53  Mo.  128;  State  v.  City 
of  Camden,  50  N.  J.  Law,  87,  11  Atl. 
137;  State  v.  City  of  Somers*  Point, 
52  N.  J.  Law,  32,  18  Atl.  694;  Day 
v.  City  of  Morristown,  63  N.  J.  Law, 
353,  46  Atl.  1098;  Socorro  County 
Com'rs  v.  Leavitt,  4  Gild.  (N.  M.) 
37,  12  Pac.  759;  Blanchard  v.  Bis- 
sell,  11  Ohio  St.  96;  In  re  Incor- 
poration of  Village  of  Edgewood, 
130  Pa.  348,  18  Atl.  646;  Smith  v. 
Grayson  County,  18  Tex.  Civ.  App. 
153,  44  S.  W.  921;  King  County 
Com'rs  v.  Davies,  1  Wash.  St.  290,  24 
Pac.  540;  Walworth  County  v.  Vil- 


lage of  Whitewater,  17  Wis.  193; 
City  of  Janfisville  v.  Markoe,  18 
Wis.  350;  Jones  v.  Kolb,  56  Wis. 
263;  Chicago  &  N.  W.  R.  Co.  v. 
Langlade  County,  56  Wis.  614. 

is  Fowle  v.  Common  Council  of 
Alexandria,  3  Pet.  (U.  S.)  398; 
Lockhart  v.  City  of  Troy,  48  Ala. 
579;  City  of  Santa  Rosa  v.  Coulter, 
58  Cal.  537;  People  v.  McFadden,  81 
Cal.  489;  Popper  v.  Broderick,  123 
Cal.  456,  56  Pac.  53;  Rauer  v.  Wil- 
liams, 118  Cal.  401;  State  v.  Stark, 
18  Fla.  255;  Lake  v.  State,  18  Fla. 
501;  Middleton  v.  City  of  St.  Au- 
gustine, 42  Fla.  287,  29  So.  421; 
Potwin  v.  Johnson,  108  111.  70; 
Cummings  v.  City  of  Chicago,  144 
111.  563,  33  N.  E.  854;  Von  Phul  v. 
Hammer,  29  Iowa,  222;  In  re  City 
of  Council  Grove,  20  Kan.  619; 
Brown  v.  Milliken,  42  Kan.  769; 
Huer  v.  City  of  Central,  14  Colo.  71, 
23  Pac.  323;  State  v.  Lewelling.  51 
Kan.  562,  33  Pac.  425;  City  of  Cov- 
ington  v.  District  of  Highlands,  24 
Ky.  L.  R.  433,  68  S.  W.  669:  Adams 
v.  Forsyth,  44  La.  Ann.  130.  10  So. 
622;  Yellowstone  County  Com'rs  Y. 
Northern  Pac.  R.  Co.,  10  Mout.  414; 


§  13 


CREATION    AND    DISSOLUTION. 


27 


venting  a  fuller  discussion ;  but  as  an  illustration,  in  Georgia  a 
special  act  undertaking  to  establish  the  corporate  limits  of  a 
town,  if  indefinite,  uncertain  and  incomplete  in  the  description 
of  the  territory  to  be  embraced,  was  not  given  effect.17 

§  13.     Conditions  precedent;  population. 

A  discussion  of  the  power  of  the  legislature  to  pass  laws  classi- 
fying cities,  towns  and  villages,  and,  providing  for  the  organiza- 
tion of  such  corporations  upon  complying  with  or  coming  within 
the  conditions  fixed,  will  be  found  in  the  chapter  relating  to 
legislative  power  over  public  corporations  and  its  limitations. 
In  the  creation  of  corporations,  however,  it  can  be  said  that  a 
legislature  may  have  the  power,  either  as  proceeding  from  the 
constitution  of  the  state  or  as  possessed  originally  and  delegated 
by  the  people,  to  pass  laws  for  the  organization  of  public  cor- 
porations dependent  on  the  residence,  within  certain  geograph- 
ical limits,  of  a  certain  number  of  people.18  And  in  determining 


City  of  St.  Louis  v.  Shields,  62  Mo. 
247;  Holliday  v.  Sweet  Grass  Coun- 
ty, 19  Mont.  364,  48  Pac.  553;  Owen 
v.  Baer,  154  Mo.  434;  Copeland  v. 
City  of  St.  Joseph,  126  Mo.  417,  29 
S.  W.  281;  State  v.  Ruhe,  24  Nev. 
251,  52  Pac.  274;  Ross  v.  Winsor, 
48  N.  J.  Law,  95;  Wanser  v.  Hoos, 
60  N.  J.  Law,  482;  Goldberg  v. 
Dorland,  56  N.  J.  Law,  364,  28  Atl. 
599;  Broking  v.  Van  Valen,  56  N. 
J.  Law,  85,  27  Atl.  1070,  general  and 
special  legislation;  Arthur  v.  Vil- 
lage of  Glens  Falls,  66  Hun  (N.  Y.) 
136;  Rodman-Heath  Cotton  Mills  Y. 
Town  of  Waxhaw,  130  N.  C.  293, 
41  S.  E.  488;  Town  of  Denver  v. 
City  of  Spokane  Falls,  7  Wash.  226; 
Elder  v.  Incorporators  of  Central 
City,  40  W.  Va.  222,  21  S.  E.  738. 
See,  also,  cases  cited  in  preceding 
note. 

IT  Warren  v.  Branan,  109  Ga.  835. 

is  Sanders  v.  Sehorn,  98  Cal.  227; 
City  of  Wardner  v.  Pelkes  (Idaho) 
69  Pac.  64;  People  v.  Gaulter,  149 
111.  39,  36  N.  E.  576;  Poor  v.  People, 


142  111.  309;  People  v.  Martin,  178 
111.  611;  People  v.  Marquiss,  192 
111.  377,  61  N.  E.  352;  People  v. 
Pike,  197  111.  449;  Allen  v.  Hostet- 
ter,  16  Ind.  15;  Wilkison  v.  Board 
of  Children's  Guardians  of  Marion 
County,  158  Ind.  1,  62  N.  E.  481; 
O'Bryan  v.  City  of  Owensboro,  24 
Ky.  L.  R.  469,  68  S.  W.  858;  State 
v.  Village  of  Fridley  Park,  61  Minn. 
146,  63  N.  W.  613;  State  v.  Stuht, 
52  Neb.  209,  71  N.  W.  941;  Mort- 
land  v.  State,  52  N.  J.  Law,  521,  20 
Atl.  673;  Attorney-General  v. 
Borough  of  Anglesea,  58  N.  J.  Law, 
372,  33  Atl.  971;  Grey  v.  City  of 
Dover,  62  N.  J.  Law,  40,  40  Atl.  640; 
City  of  Dover  v.  Grey,  62  N.  J.  Law, 
647,  42  Atl.  674;  In  re  Henneberger, 
155  N.  Y.  420;  Harness  v.  State, 
76  Tex.  566;  Ewing  v.  State,  81 
Tex.  172;  McCrary  v.  City  of  Co- 
manche  (Tex.  Civ.  App.)  34  S.  W. 
679;  Thompson  v.  State,  23  Tex. 
Civ.  App.  370;  Watson  v.  Corey,  6 
Utah,  150,  21  Pac.  1089;  Town  of 
South  Morgantown  v.  City  of  Mor- 


28 


CORPORATE  LIFE;  EXISTENCE. 


§ 


the  population  of  the  district  in  proceedings  to  incorporate,  only 
those  can  be  included  as  " actual  residents"  of  such  territory 
who  are  in  a  place  with  the  intent  to  establish,  or  who  have 
already  established,  their  domicile  there.19 

In  cases  where  the  question  of  actual  population  of  the  terri- 
tory to  be  organized  is  raised,  it  is  determined  by  the  latest 
Federal  or  official  census  of  the  state.20 

The  word  "town"  as  used  in  New  Jersey  Public  Laws  of  1895, 
p.  551,  §  1,  in  the  phrase  "incorporated  city  or  town,"  means 
any  municipal  corporation  above  the  grade  of  township  and  be- 
low that  of  city,  this  act  providing  for  the  incorporation  of  dis- 
tricts containing  certain  population.21 

§  14.    Conditions  precedent;  area  and  physical  characteristics. 

The  area  of  a  district  contemplating  incorporation  may  be  the 
determining  element  or  condition,22  or  the  physical  character- 
istics of  territory  to  be  organized.28 


gantown,  49  W.  Va.  729,  40  S.  E. 
15;  State  v.  Lammers,  113  Wis. 
398,  86  N.  W.  677,  89  N.  W.  501; 
Fremont  County  Com'rs  v.  Perkins, 
5  Wyo.  166,  38  Pac.  915. 

19  State    v.    Robertson,    41    Kan. 
200;   State  v.  Mote,  48  Neb.  683,  67 
N.  W.  810.     See,  also,  Attorney  Gen- 
eral v.   Borough  of  Anglesea,  58  N. 
J.  Law,  372. 

20  Kumler     v.      San      Bernardino 
County   Sup'rs,   103   Cal.   393;    Gett 
v.   Sacramento   County    Sup'rs,    111 
Cal.  366;   People  v.  Gaulter,  149  111. 
39;    Martin  v.  Ivins,  59  N.  J.  Law, 
364,  36  Atl.  93. 

21  Stout  v.  Borough  of  Glen  Ridge, 
59  N.  J.  Law,  201,  35  Atl.  913. 

22  State  v.   County   of  Dorsey,  28 
Ark.  378;  Guebelle  v.  Epley,  1  Colo. 
App.     199,    28     Pac.    89;     Town    of 
Cicero  v.   City  of  Chicago,   182   111. 
301;     People    v.    Marquiss,    192    111. 
377,  61  N.  E.  352;  State  v.  St.  John, 
21  Kan.  591;   State  v.  Garfield  Coun- 
ty   Com'rs,    54    Kan.    372;     Kansas 


Town  &  Land  Co.  v.  City  of  Smith 
Center,  6  Kan.  App.  252,  51  Pac. 
801;  Rice  v.  Ruddiman,  10  Mich. 
125;  Warren  v.  Barber  Asphalt 
Paving  Co.,  115  Mo.  572;  Maury 
County  v.  Lewis  County,  31  Tenn. 
(1  Swan)  236;  Brown  v.  Hamlett, 
76  Tenn.  (8  Lea)  732;  Bridgenor 
v.  Rodgers,  41  Tenn.  (1  Cold.)  259; 
Cheatham  County  v.  Dickson  Coun- 
ty (Tenn.  Ch.  App.)  39  S.  W.  734; 
State  v.  Broach  (Tex.  Civ.  App.) 
35  S.  W.  86;  State  v.  Larrabee,  1 
Wis.  200;  State  v.  Merriman,  6 
Wis.  17;  State  v.  Lammers,  113 
Wis.  398,  86  N.  W.  677,  89  N.  W. 
501. 

23  Fullington  v.  Williams,  98  Ga. 
807;  Christ  v.  Webster  City,  105 
Iowa,  119,  74  N.  W.  743;  Gray  v. 
Crockett,  30  Kan.  138;  State  v.  Mc- 
Reynolds,  61  Mo.  203;  State  v. 
Fleming,  158  Mo.  558,  59  S.  W.  118; 
State  v.  Dimond,  44  Neb.  154,  62  N. 
W.  498.  See,  also,  citations  in  the 
following  note. 


§  14 


CREATION    AND    DISSOLUTION. 


29 


Where  this  last  element  determines  the  legal  organization  of 
or  annexation  to  municipalities  or  public  quasi  corporations  of 
territory,  a  successful  result  seems  to  depend  upon  the  nature  of 
the  land.  Is  it  fit  for  agricultural  purposes  or  ''farming  land," 
and  so  far  distant  from  the  center  of  the  city  or  town  that  it 
will  not  enjoy  any  of  the  advantages  supposed  to  be  derived 
from  municipal  organization,  such  as  fire  and  police  protection? 
And  further,  answering  this  proposition  in  the  negative,  is  the 
value  of  the  land  enhanced  to  such  an  extent  by  the  existence 
near  it  of  a  large  center  of  population  as  to  justly  impose  upon 
it  a  part  of  the  burdens  accompanying  municipal  organization?24 


24  Indiana  Imp.  Co.  v.  Wagner, 
138  Ind.  658,  38  N.  E.  49;  Stephens 
v.  Felton,  99  Ky.  395;  State  v.  Vil- 
lage of  Minnetonka,  57  Minn.  526, 
59  N.  W.  972;  State  v.  Village  of 
Fridley  Park,  61  Minn.  146,  63  N. 
W.  613;  Giboney  v.  City  of  Cape 
Girardeau,  58  Mo.  141;  Kansas  City 
v.  Marsh  Oil  Co.,  140  Mo.  458;  City 
of  Plattsburg  v.  Riley,  42  Mo.  App. 
18;  Meri wether  v.  Campbell,  120 
Mo.  396,  25  S.  W.  392;  State  v. 
Mote,  48  Neb.  683;  McClay  v.  City 
of  Lincoln,  32  Neb.  412,  49  N.  W. 
282;  Stout  v.  Borough  of  Glen 
Ridge,  59  N.  J.  Law,  201;  In  re 
Borough  of  Little  Meadows,  35  Pa. 
335;  In  re  Borough  of  Duquesne, 
147  Pa.  58,  23  AH.  339;  Borough  of 
Blooming  Valley,  56  Pa.  66;  In 
re  Incorporation  of  Village  of 
Edgewood,  130  Pa.  348;  In  re  In- 
corporation of  Wilkinsburg  Bor- 
ough, 131  Pa.  365;  In  re  Borough 
of  Taylor,  160  Pa.  475;  In  re  In- 
corporation of  Borough  of  Prospect 
Park,  166  Pa.  502. 

Truckmen  who  raise  small  fruits, 
etc.,  for  sale  to  townspeople,  are 
not  farmers  within  the  meaning  of 
Act  of  Pa.,  April  1st,  1863,  and 
therefore  are  not  entitled  to  have 
their  lands  excluded  from  boun- 
daries of  a  proposed  borough.  In 


re  Tullytown  Borough,  11  Pa.  Co. 
Ct.  R.  97;  In  re  Collingdale,  11  Pa. 
Co.  Ct.  R.  105;  In  re  Borough  of 
Larsville,  13  Pa.  Co.  Ct.  R.  351; 
Pelletier  v.  City  of  Ashton,  12  S. 
D.  366,  81  N.  W.  735. 

Land  not  laid  off  into  lots  or 
blocks,  and  agricultural  land  with- 
in the  corporate  limits,  held  prop- 
erly included.  State  v.  Town  of 
Baird,  79  Tex.  63;  Thompson  v. 
State,  23  Tex.  Civ.  App.  370;  Mc- 
Clesky  v.  State,  4  Tex.  Civ.  App. 
322,  23  S.  W.  518;  Ewing  v.  State, 
81  Tex.  872. 

The  inclusion  of  a  large  quantity 
of  agricultural  land  does  not  ren- 
der a  special  act  incorporating  a 
city  void.  Nalle  v.  City  of  Austin, 
23  Tex.  Civ.  App.  595,  42  S.  W. 
780;  State  v.  Hoard,  94  Tex.  527,  62 
S.  W.  1054;  Judd  v.  State,  25  Tex. 
Civ.  App.  418,  62  S.  W.  543.  In  the 
latter  case  from  seventy-five  to 
eighty  per  cent  of  the  land  included 
in  the  petition  was  agricultural  and 
the  incorporation  held  invalid. 
Ferguson  v.  City  of  Snohomish,  8 
Wash.  668.  As  to  effect  of  special 
act,  Phillips  v.  City  of  Huntington, 
35  W.  Va.  406;  State  v.  Lamoureux, 
3  Wyo.  731;  Smith  v.  Sherry,  50 
Wis.  210.  A  vacant  tract  of  land 
not  adjoining  an  existing  village 


30  CORPORATE  LIFE;  EXISTENCE.  §    15 

In  Pennsylvania,  under  an  act  of  the  legislature  providing 
for  the  incorporation  of  any  town  or  village  containing  300  in- 
habitants, no  authority  exists  for  the  incorporation  into  a 
borough  of  two  or  more  distinct  villages  together  with  a  tract 
of  open  farm  country.28 

Upon  an  examination  of  the  authorities  cited,  the  general  rule 
seems  to  be  well  established  that  farm  land  situated  so  far  dis- 
tant from  organized  territory  as  to  be  incapable  of  receiving 
the  advantages  derived  from  municipal  organization,  including 
fire  and  police  protection,  cannot  be  annexed,  nor,  in  the  first 
instance,  in  the  absence  of  sufficient  population,  organized  into 
a  municipal  corporation.  Land,  however,  used  for  garden  or 
"truck"  purposes,  or  immediately  adjacent  to  the  boundaries 
of  an  organized  city  or  town,  receiving  the  benefits  above  in- 
dicated, may  properly  be  included  in  or  annexed  to  a  center  of 
population.  The  courts  hold  that  such  territory  should  pay  for 
the  advantages  and  protection  it  receives  by  reason  of  its  loca- 
tion. In  all  cases  the  territory  proposed  to  be  incorporated  or 
annexed  should  be  what  is  variously  termed  in  different  statutes 
"contiguous"  or  "adjacent"  land.26 

§  15.    Mode  of  creation. 

To  a  certain  extent  the  mode  of  creation  has  been  discussed  in 
a  preceding  section.  No  particular  form  of  words  is  necessary 
to  create  a  corporation.  The  essential  is  an  existing  intent  on 
the  part  of  the  state  or  a  legislative  body  that  a  public  cor- 
poration shall  be  created.  Following  logically  from  this  state- 
ment, then,  we  may  have  three  modes  of  creation :  by  prescrip- 
tion, by  implication,  and  by  affirmative  action. 

By  prescription.  A  public  corporation  exercises  certain  pow- 
ers and  wre  find  imposed  upon  it  certain  duties  and  obligations. 
There  may  not  be  in  existence  an  express  act  of  the  sovereign  giv- 
ing to  the  inhabitants  of  a  certain  district  the  right  to  exercise 
these  powers,  affected  by  their  corresponding  duties  and  obliga- 
tions, but  the  cases  hold  in  many  instances  that  where  an  active 
corporation  has  existed  for  some  time  it  will  be'presumed  that  at 

cannot   be    incorporated    into   it   by  25  in  re   Borough   of  West    Phila- 

the  legislature  for  the  sole  purpose  delphia,  5  Watts  &  S.   (Pa.)    281. 

of     taxation.     See,     also,     Russ     v.  26  Duckstad      v.       Polk       Count)' 

City  of  Boston,  157  Mass.  60.  Com'rs,  69  Minn.  202,  71  N.  W.  933. 


§   15  CREATION    AND    DISSOLUTION.  31 

the  time  of  the  organization  of  such  territory  the  affirmative 
permission  of  the  sovereign  was  given.  The  people  within  cer- 
tain geographical  limits  may  have  exercised,  in  other  words,  all 
the  rights  which  usually  appertain  to  a  particular  organization 
for  such  a  length  of  time  that  their  legal  right  to  do  so  will  not 
be  questioned;27  and  because,  as  said  in  an  Illinois  case,  "munici- 
pal corporations  are  created  for  the  public  good — are  demanded 
by  the  wants  of  the  community ;  and  the  law,  after  long-continued 
use  of  corporate  powers,  and  the  public  acquiescence,  will  in- 
dulge in  presumptions  in  favor  of  their  legal  existence."28  The 
state  may  also,  by  long  acquiescence  in  the  continued  exercise 
of  corporate  powers  by  the  inhabitants  of  a  certain  district,  be 
estopped  or  precluded  from  questioning  or  raising  the  legal  ex- 
istence as  a  corporation  of  such  territory.29 

27  Greene  v.  Dennis,  6  Conn.  293;  Gush.)  487;  New  Boston  v.  Dun- 
Town  of  Enterprise  v.  State,  29  barton,  15  N.  H.  201. 
Fla.  128,  10  So.  740;  People  v.  Farn-  29  state  v.  Leatherman,  38  Ark. 
ham,  35  111.  562;  State  v.  Bunker,  81.  The  recognition  of  a  municipal 
59  Me.  366;  Prentiss  v.  Davis,  83  corporation  by  state  officers  for  nine 
Me.  364;  People  v.  Maynard,  15  years  sufficient  to  prevent  a  state 
Mich.  463;  Village  of  Arapahoe  v.  from  questioning  the  legal  existence 
Albee,  24  Neb.  242,  38  N.  W.  737;  of  the  corporation. 
City  of  Omaha  v.  City  of  South  Pidgeon  v.  McCarthy,  82  Ind.  321. 
Omaha,  31  Neb.  378,  47  N.  W.  1113;  In  Indiana  where  Wm.  Henry  Har- 
but  contra,  in  New  Boston  v.  Dun-  rison  drafted  a  map  of  Vincennes 
barton,  12  N.  H.  409;  Wallace  v.  adding  some  land  which  he  marked 
Fletcher,  30  N.  H.  434;  Bow  v.  Al-  "General  Harrison's  Reserve," 
lenstown,  34  N.  H.  351;  Robie  v.  which  was  assessed  and  taxed  by 
Sedgwick,  35  Barb.  (N.  Y.)  319;  2  the  city  for  over  fifty  years  with- 
Kent,  Comm.  277;  Barnes  v.  Barnes,  out  question,  it  was  held  that  un- 
6  Vt.  388;  State  v.  Williams,  27  der  these  circumstances  the  fact 
Vt.  755;  Town  of  Londonderry  v.  that  this  tract  was  not  legally  a 
Town  of  Andover,  28  Vt.  416.  part  of  the  corporate  territory  could 
2s  Jameson  v.  People,  16  111.  257.  not  be  shown.  Back  v.  Carpenter, 
In  Massachusetts  the  supreme  29  Kan.  349;  Bow  v.  Allenstown, 
court  held  in  1809  that  the  existence  34  N.  H.  351;  Sherry  v.  Gilmpre, 
of  a  municipal  corporation  could  be  58  Wis.  324.  Twenty  years  suffi- 
proved  by  reputation;  otherwise  cient  to  protect  corporate  organiza- 
many  towns  and  parishes  would  tion  from  collateral  attack.  See, 
lose  all  their  corporate  rights  and  also,  Austrian  v.  Guy,  21  Fed.  500; 
privileges.  Dillingham  v.  Snow,  5  People  v.  Alturas  County,  6  Idaho, 
Mass.  547;  Stockbridge  v.  West  418,  55  Pac.  1067;  Mendenhall  v. 
Stockbridge,  12  Mass.  400.  See,  Burton,  42  Kan.  570.  But  see  State 
also,  Trott  v.  Warren,  11  Me.  227;  v.  Fleming,  147  Mo.  1,  and  Worley 
Bassett  v.  Porter,  58  Mass.  (4  v.  Harris,  82  Ind.  493. 


32  CORPORATE  LIFE;  EXISTENCE.  §  1$ 

§  16.    By  implication. 

The  creation  of  a  public  corporation  through  implication  is 
slightly  different  from  its  creation  by  prescription,  though  both 
modes  presuppose  the  existence  of  an  intent  on  the  part  of  the 
sovereign  to  create  such  a  public  corporation.  The  element  of 
time  differentiates  them.  The  inhabitants  of  a  certain  district 
may  have  exercised  the  usual  powers  for  such  a  length  of  time 
that  the  granting  of  them  will  be  presumed.  On  the  other  hand, 
the  inhabitants  of  such  territory  may  not  have  exercised  these 
powers  for  such  a  length  of  time  as  will  give  to  them  the  right 
through  prescription,  but  the  legislature  may  by  some  act  recog- 
nize the  legal  incorporation  or  existence  of  such  district,  and 
therefore,  as  the  courts  have  held,  the  corporation  will  be  cre- 
ated by  implication.30 

so  Anon.,  1  Salk.  191;  Conserva-  character,  this  doctrine  obtains, 
tors  of  River  Tone  v.  Ash,  10  Barn.  State  v.  Pawnee  County  Com'rs,  12 
&  C.  349;  Russell  v.  Devon  County,  Kan.  426-440;  Stebbins  v.  Jennings, 
2  Term.  R.  672;  Society  for  the  27  Mass.  (10  Pick.)  172;  Prentiss 
Propagation  of  the  Gospel  v.  Towns  v.  Davis,  83  Me.  364;  State  v.  Tos- 
of  Pawlet  &  Clarke,  4  Pet.  (U.  S.)  ney,  26  Minn.  262. 
480-502;  Levy  Court  v.  Coroner,  69  But  the  case  of  Smith  v.  Ander- 
U.  S.  (2  Wall.)  501;  Blair  v.  West  son,  33  Minn.  25,  holds  that  legal- 
Point  Precinct,  2  McCrary,  459,  5  izing  the  acts  of  certain  county  offl- 
Fed.  265;  Tatum  v.  Tamaroa,  9  cers  does  not  ipso  facto  organize 
Biss.  475,  14  Fed.  103;  Dean  v.  the  county  so  as  to  entitle  it  to  a 
Davis,  51  Cal.  406;  Town  of  En-  register  of  deeds.  State  v.  Spaude, 
terprise  v.  State,  29  Fla.  128,  10  37  Minn.  322,  34  N.  W.  164;  Gas- 
So.  740.  kill  v.  Dudley,  47  Mass.  (6  Mete.) 

In  Georgia  it  was  held,  however,  552;   New  Boston  v.  Dunbarton,  12 

that  a  district  organized  as  a  "town"  N.   H.   409,   15   N.   H.   201 ;    Bow  v. 

would  not  become  a  "city"  by  the  Allenstown,  34  N.  H.  351;   Broking 

mere    use    of    the    word    "city"    in  v.    Van    Valen,    56    N.    J.    Law,   85, 

acts    referring    to    such    town.     Sa-  27  Atl.  1070;    Green  v.   Seymour,   3 

vannah,  F.  &  W.  R.  Co.  v.  Jordan,  Sandf.   Ch.    (N.   Y.)    285;    Town   of 

113    Ga.    687,    39    S.    E.    511;     and  Bath  Com'rs  v.  Boyd,   23  N.  C.    (1 

Holm  berg   v.    Jones,    7    Idaho,    752,  Ired.)  194;  Town  of  Trenton  Com'rs 

65    Pac.    563,    holds    that   a    county  v.    McDaniel,    52    N.    C.    (7   Jones) 

cannot  be  created  by  implication  or  107;      Mclntyre     Poor     School     v. 

intendment.  Zanesville  Canal  &  Mfg.  Co.,  9  Ohio, 

People   v.   Farnham,   35   111.    562;  203;   Mathews  v.  State,  82  Tex.  577, 

Bradley  v.   Case,   4   111.    (3    Scam.)  but  see  In  re  Campbell,  1  Wash.  287. 

608;   State  v.  Stevens,  21  Kan.  210.  It  has  also  been  held  that  where 

Even  in  cases  where  the  original  a  town   is  organized   under  a   void 

organization   was  fraudulent  in  its  act,   its   incorporation    will   be   ren- 


18 


CREATION    AND    DISSOLUTION. 


33 


§  17.    By  affirmative  action. 

The  third  way  in  which  a  public  corporation  may  be  created 
is  by  what  may  be  termed  express  affirmative  action  on  the  part 
of  the  sovereign,  and,  as  has  been  already  stated,  this  may  be 
accomplished  pursuant  to  constitutional  provision,  general  en- 
abling statutes,  or  special  act.  The  discussion  which  follows  will 
not  attempt  to  distinguish  as  between  the  three  modes,  but  will 
follow  the  decisions  and  state  the  necessary  steps  to  be  taken  by 
the  people  in  attempting  to  incorporate  under  legal  authority.31 

§  18.    Petition  and  notice. 

The  petition.  That  certain  territory,  wherever  found,  become 
incorporated  under  authority  of  law,  the  first  requisite  may  be 
the  preparation  and  filing  of  a  petition  with  the  proper  officer,32 


dered  legal  by  subsequent  legisla- 
tion. State  v.  Berry,  13  Wash.  708. 

City  of  Bridgeport  v.  Housatonic 
R.  Co.,  15  Conn.  475.  The  legisla- 
ture by  a  confirmatory  law  may 
make  valid  an  act  of  the  corpora- 
tion which  was  void  for  want  of 
power  given  by  the  original  charter. 
The  common-law  rule  that  a  void 
act  cannot  be  made  good  cannot  be 
true  of  sovereignty,  it  was  said. 

People  v.  Alturas  County,  6 
Idaho,  418,  55  Pac.  1067.  The  ex- 
istence of  the  county  of  Baline  was 
recognized  by  four  different  acts 
of  the  legislature,  by  the  supreme 
court,  and  by  the  executive  depart- 
ment of  the  state.  It  exercised  all 
the  powers  and  functions  of  a 
county  government  for  four  years. 
The  state  was  held  estopped  from 
questioning  the  regularity  and 
validity  of  its  incorporation. 

31  See  notes  under  §   9. 

State  v.  O'Connor,  81  Minn.  79, 
83  N.  W.  498.  Minn.  Const.,  art.  4, 
§  36,  applies  only  to  cities  having 
an  incorporated  existence  at  the 
time  of  its  adoption,  and  further 
held  not  necessary  for  the  legisla- 


ture to  prescribe  a  general  frame 
work  for  a  city  charter. 

City  of  Guthrie  v.  Ter.,  1  Okl. 
188,  31  Pac.  190.  A  provisional  mu- 
nicipal organization  made  in  Okla- 
homa before  the  act  of  congress  pro- 
viding a  territorial  government,  had 
no  legal  existence. 

Wells  v.  Burbank,  17  N.  H.  393. 
The  grant  of  a  charter  for  a  town- 
ship does  not  create  a  town  cor- 
poration, though  the  grantees  are 
a  quasi  corporation  for  the  sale 
and  partition  of  their  lands. 

Reeves  v.  Anderson,  13  Wash.  17. 
The  power  to  "frame  a  charter" 
given  by  the  constitution  of  the 
state  of  Washington,  art.  11,  §  10, 
to  a  city  containing  a  population  of 
20,000  or  more,  is  a  continuing 
right  vested  in  the  electors  and 
does  not  become  exhausted. 

32  People  v.  Town  of  Berkeley, 
102  Cal.  298;  Vance  v.  Rankin,  95 
111.  App.  562;  People  v.  Marquiss, 
192  111.  377,  61  N.  E.  352;  Indiana 
Imp.  Co.  v.  Wagner,  138  Ind.  658, 
38  N.  E.  49;  State  v.  Hertsch,  136 
Ind.  293;  Ford  v.  Town  of  North 
Des  Moines,  80  Iowa,  626,  45  N.  W. 


Abb.  Corp.— 3. 


34  CORPORATE  LIFE;  EXISTENCE.  §   18 

containing  the  necessary  averments  of  the  signers'  wishes,33  with 
an  accurate  and  definite  description  of  the  boundaries  limiting 
and  inclosing  the  proposed  organization.3*  When  such  petition, 
properly  drawn  and  duly  signed,  is  filed,  its  subsequent  change, 
either  by  alteration  of  the  boundaries  or  the  withdrawal  of  signa- 
tures, avoids  the  incorporation.38 

The  notice.  It  is  a  fundamental  rule  of  law  that  before  action 
or  proceedings  of  any  character  can  be  legally  taken  affecting 
the  rights,  either  property  or  political,  of  an  individual,  he  must 
have  notice  of  the  pendency  of  such  proposed  action  or  pro- 
ceedings. This  rule  of  law  applies  to  the  present  question.  A 
proposed  municipal  or  public  quasi  corporation  necessarily  in- 
cludes the  property  of  a  large  number  of  individuals.  The  law 
gives  them  a  right  to  be  heard  upon  all  matters  pertaining  to  or 
affecting  their  rights.  The  necessary  petition  preliminary  to 
the  organization  of  a  public  corporation,  under  authority  of  law, 
must  be  brought  home  either  by  actual  or  constructive  notice  to 
the  attention  of  all  possessing  rights  within  the  limits  of  the 
territory  included.  The  notice  of  the  filing  of  a  petition  for  an 
election  to  determine  the  question  of  incorporation  must  contain 
substantially  the  legal  requirements;36  it  must  be  signed  by  the 

1031;    State  v.  Sillon,  21  Kan.  207;  Petition  for  incorporation   not  void 

State  v.  Red   Lake  County  Com'rs,  because  of  miscitation  of  statute. 
67  Minn.  352,  69  N.  W.  1083;    State        Town  of  Somonauk  v.  People,  178 

v.  Campbell,  120  Mo.  396;    State  v.  111.  631;  People  v.  Pike,  197  111.  449; 

Fleming,  147  Mo.  1,  44  S.  W.  758;  Attorney  General  v.  Rice,  64  Mich. 

State  v.  Jenkins,  25  Mo.  App.  484;  385,  31  N.  W.  203;    In  re  Borough 

State  v.    Dimond,    44    Neb.   154,   62  of  Blooming  Valley,  56  Pa.   66. 
N.  W.  498;   State  v.  Borough  Com-        s*  city     of     Wardner     v.     Pelkes 

mission   of   Ocean  Beach,   48   N.   J.  (Idaho)  69  Pac.  64;  State  v.  Young, 

Law,  375;  Borough  of  Glen  Ridge  v.  61  Mo.  App.  494;   Wood  v.  Quimby, 

Stout,  58  N.  J.  Law,  598,  33  Atl.  858;  20  R.  I.  482;  Furrh  v.  State,  6  Tex. 

In  re  Pine  Hill,  33  N.  Y.  Supp.  181;  Civ.  App.  221,  24  S.  W.  1126;   State 

Devore's    Appeal,    56    Pa,    163;    In  v.    Hoard,    94    Tex.    527,    62    S.    W. 

re    Borough    of    Taylorsport    (Pa.)  1054;    Huff    v.    Preuitt    (Tex.    Civ. 

13  Atl.  224;    In  re  Borough  of  Ver-  App.)    53  S.  W.  844. 
sailles,  159  Pa.  43;    In  re  Borough        35  state  v.  Campbell,  120  Mo.  396, 

of  Flemington,  168  Pa.  628;  Burnes  25  S.  W.  392. 

v.    City  of   Edgerton,   143   Mo.    563,         se  Smith  v.  Skagit  County  Com'rs, 
45  S.  W.  293.  45  Fed.  725;  People  v.  City  of  River- 
as People  v.  Town  of  Linden,  107  side,  70  Cal.  461;  State  v.  Frost,  103 
Cal.  94,  40  Pac.  115;   City  of  Ward-  Tenn.   685. 
ner  v.   Pelkes    (Idaho)    69  Pac.   64. 


§  19 


CREATION    AND    DISSOLUTION 


35 


proper  officers,  as  provided  by  law;37  and  be  either  filed,  posted 
or  published  for  the  length  of  time  required  by  controlling 
statutory  provisions.38 

§  19.     The  election. 

After  the  petition  for  election  has  been  properly  prepared  and 
notice  given,  the  voters  of  the  district  proposed  to  be  incorpo- 
rated pass  upon  the  question  at  an  election  called  by  the  legal 
officers  at  the  time  and  in  the  manner  as  directed  by  law.39  At 
such  election  an  official  enumeration  of  the  inhabitants  within 
the  proposed  district  is  not  necessary  if  the  proper  officers  make 
a  record,  relative  to  the  number  of  inhabitants,  in  their  pro- 
ceedings declaring  the  result  of  the  election,40  and  only  duly 
qualified  voters  are  permitted  to  pass  upon  the  questions  sub- 
mitted.41 

Under  Minnesota  Laws  of  1893,  c.  143,  all  the  propositions  in 
regard  to  the  creation  of  the  new  county  must  be  submitted  to 
the  electors.  Only  one  of  these,  however,  can  be  adopted.42 

In  California  it  was  held  where  after  the  election  the  board 


37  Smith  v.  Skagit  County  Com'rs, 
45  Fed.  725;  People  v.  Snedeker, 
30  App.  Div.  1,  51  N.  Y.  Supp.  768. 

ss  Butler  v.  Walker,  98  Ala.  358; 
People  v.  Town  of  Linden,  107  Cal. 
94,  40  Pac.  115;  State  v.  Town  of 
Winter  Park,  25  Fla.  371;  Town  of 
Woo-Sung  v.  People,  102  111.  648. 
But  it  is  held  in  Iowa  that  no  no- 
tice is  necessary  to  property  own- 
ers within  the  territory  proposed 
to  be  incorporated  or  annexed  until 
after  the  court  acts  judicially  in 
the  matter.  Ford  v.  Town  of  North 
Des  Moines,  80  Iowa,  626,  45  N.  W. 
1031. 

Smith  v.  Crutcher,  92  Ky.  586; 
Gardner  v.  Christian,  70  Hun  (N. 
Y.)  547;  People  v.  Carpenter,  24 
N.  Y.  86;  City  of  Guthrie  v.  Ter., 
1  Okl.  188;  Ruohs  v.  Town  of 
Athens,  91  Tenn.  20. 

39  People  v.  Gunn,  85  Cal.  238; 
Slate  v.  City  of  Blue  Ridge,  113 


Ga.  646,  38  S.  E.  977;  State  v. 
Town  of  Westport,  116  Mo.  582,  22 
S.  W.  888;  State  v.  Town  of  Tipton, 
109  Ind.  73,  9  N.  E.  704. 

«  Smith  v.  Skagit  County  Com'rs, 
45  Fed.  725. 

« People  v.  Hecht,  105  Cal.  621; 
State  v.  McGowan,  138  Mo.  187,  39 
S.  W.  771;  State  v.  Honerud,  66  Minn. 
32;  State  v.  Crow  Wing  County 
Com'rs,  66  Minn.  519;  State  v.  Red 
Lake  County  Com'rs,  67  Minn.  352, 
69  N.  W.  1083;  In  re  Village  of  Sag 
Harbor,  32  Misc.  624,  67  N.  Y.  Supp. 
574;  State  v.  Parler,  52  S.  C.  207,  29 
S.  E.  651;  Segars  v.  Parrott,  54  S.  C. 
1,  31  S.  E.  677,  865;  Cocke  v.  Gooch, 
52  Tenn.  (5  Heisk.)  294;  State  v. 
Weingarten,  92  Wis.  599,  66  N.  W. 
716;  Freemont  County  Com'rs  v. 
Perkins,  5  Wyo.  166. 

42  State  v.  Red  Lake  County 
Com'rs,  67  Minn.  352,  69  N.  W.  1083. 


36  CORPORATE  LIFE;  EXISTENCE.  §   20 

learned  that  only  a  part  of  the  one  hundred  petitioners  required 
by  law  were  bona  fide  residents,  that  it  could  not  be  compelled 
to  canvass  the  returns.43 

Where  ballots  read  "against  corporation"  instead  of  "against 
village  organization  under  the  general  law,"  it  was  held  im- 
proper in  Illinois  to  refuse  to  count  them,44  and  where  a  certifi- 
cate of  inspectors  at  such  an  election  failed  to  show  the  reason 
why  three  votes  were  rejected,  this  did  not  invalidate  it.45 

§  20.    Subsequent  official  action. 

Upon  the  affirmative  vote  of  the  number  required  by  law  to 
organize  certain  territory  into  a  public  corporation,  the  statutes 
of  a  state  generally  require  action  by  some  official  body  or  pub- 
lic officer  declaring  the  result,46  and  following  such  declaration 
the  district  as  an  incorporation  comes  into  existence.47  This 
official  action  is  generally  held  to  be  judicial  in  its  character,48 
not  ministerial;  and  the  correctness  of  findings  by  such  body  or 
official  upon  questions  coming  within  their  jurisdiction  usually 
cannot  be  raised  on  appeal  nor  in  an  attack  on  the  validity  of 
corporate  acts  after  organization.49 

The  manner  and  time  of  meeting  by  such  official  or  body,  and 
adjournments,  are  discretionary.50  Neither  is  it  necessary  that 
a  permanent  official  record,  in  detail,  be  made  of  their  proceed- 
ings.61 Sometimes  duties  devolving  upon  such  body  may  be  per- 
formed by  their  successors,52  and  the  strict  rules  obtaining  in 

« Page  v.  Los  Angeles  County  Summit  Borough,  114  Pa.  362,  7 

Sup'rs,  85  Cal.  50.  Atl.  219. 

<*  People  v.  Hanson,  150  111.  122,  48  Seabrook  v.  Fowler,  67  N.  H. 

36  N.  E.  998,  37  N.  E.  580.  See,  428;  Word  v.  Schow,  29  Tex.  Civ. 

also,  State  v.  Town  of  Westport,  116  App.  120,  68  S.  W.  192;  Grunert  v. 

Mo.  582.  Spalding  (Wis.)  78  N.  W.  606. 

«  State  v.  Lammers,  113  Wis.  4»  Hill  v.  City  of  Kahoka,  35  Fed. 

398,  86  N.  W.  677,  89  N.  W.  501.  32;  Kansas  Town  &  Land  Co.  v. 

46  Ruohs   v.   Town  of  Athens,    91  City    of    Kensington,    6    Kan.    App. 
Tenn.    20,   18    S.   W.    400;    State    v.  247,  51  Pac.  804;   Appeal  of   Gross, 
Goodwin,  69  Tex.  55,  5   S.  W.   678;  129  Pa.  567,  18  Atl.  557. 

Huff  v.  Preuitt  (Tex.  Civ.  App.)   53        so  People  v.  Town  of  Linden,  107 

S.  W.  844.    .  Cal.  94,  40  Pac.  115. 

47  Ter.  v.  Town  of  Jerome  (Ariz.)         si  people  v.  Garner,  47   111.  246. 
64  Pac.  417;   Taylor  v.  City   of  Ft.        52  Davenport  &  R.  I.  Bridge  R.  & 
Wayne,  47  Ind.  274;   State  v.  Bilby,  Terminal    Co.    v.    Johnson,    188    111. 
60    Kan.    130,    55    Pac.    843;     In    re  472,  59  N.  E.  497. 


§  21  CREATION    AND    DISSOLUTION.  37 

regular  courts  will  not  control  the  introduction  of  evidence  be- 
fore them.08 

§  21.    Incorporation  without  an  election. 

The  creation  of  a  public  corporation  or  a  change  of  grade 
through  affirmative  action  may  result  from  the  casting  of  the 
required  number  of  votes  at  an  election  held  in  the  manner  and 
under  the  authority  suggested  by  preceding  paragraphs,  or  the 
statutes  may  give  to  a  board  of  supervisors,  county  commission- 
ers, or  other  official  body,  or  some  public  officer,  the  power  to 
pass  upon  the  regularity  and  sufficiency  of  the  proceedings  for 
incorporation,  and  declare  the  legal  result.54  In  such  cases  a 
petition  signed  by  the  required  percentage  of  the  qualified  resi- 
dents of  that  territory,  and  presented  to  the  proper  tribunal,  if 
complying  with  all  the  provisions  of  the  statute,  induces  official 
action  with  the  same  result.  The  questions  usually  raised,  when 
this  last  condition  exists,  go  to  the  power  or  jurisdiction  of  an 
official  or  an  official  body  to  entertain  the  petition  and  pass  upon 
the  facts  therein  recited,  the  proceedings,  and  presentation  of 
evidence,55  the  legal  nature  of  their  decisions58  irrespective  of  the 
character  of  the  body,  whether  ministerial  or  judicial,  and  vari- 
ous ministerial  and  clerical  duties57  to  be  performed  by  the  official 
or  body,  such  as  the  filing  or  acknowledgment  of  a  plat  or  map  of 
the  proposed  corporation,  the  petition,  the  official  record  of 
their  proceedings,  with  its  averments.58  Further  and  important 
questions  are  often  raised,  namely,  the  sufficiency  of  the  official 
order  declaring  the  incorporation  and  the  fact  of  its  filing  or 
record.59 

es  Matthews     v.     Otsego     County  of    Taylor,    160    Pa.    475;    State   v. 

Sup'rs,  48  Mich.  587.  Goowin,  69  Tex.  55,  5  S.  W.  678. 

s*  Mendenhall  v.  Burton,  42  Kan.  57  Davenport  &  R.  I.  Bridge  R.  & 

570,  22  Pac.  558;   In  re  Borough  of  Terminal    Co.    v.   Johnson,    188    111. 

Osborne,     101     Pa.     284;     Ford     v.  472,   59    N.   E.   497;    Inhabitants   of 

Farmer,  28  Tenn.   (9  Humph.)   152;  Plantation   No.   9    v.   Bean,   40   Me. 

Ryan  v.  Evans,  49  Tex.  364.  218;    Appeal  of  Gross,  129  Pa.  667, 

55  Matthews     v.     Otsego     County  18   Atl.   557. 

Sup'rs,  48  Mich.  587.  ss  Kansas    Town    &    Land    Co.    v. 

68  Hill  v.  City  of  Kahoka,  35  Fed.  City    of    Kensington,    6    Kan.    App. 

32;    Attorney    General    v.   Page,    38  247;    State   v.    Peterson    (Tex.   Civ. 

Mich.  286;  Rousey  v.  Wood,  63  Mo.  App.)  29  S.  W.  415;  State  v.  Broach 

App.    460;     State    v.    Fleming,    147  (Tex.  Civ.  App.)  35  S.  W.  86. 

Mo.  1,  44  S.  W.  758;  In  re  Borough  6»  Ter.  v.  Town  of  Jerome  (Ariz.) 


38  CORPORATE  LIFE;  EXISTENCE.  §   22 

§  22.    The  charter  of  a  public  corporation  and  its  legal  nature. 

The  charter  of  a  corporation  is  its  legal  authority  to  exist  and 
exercise  its  powers  as  such.  It  may  be  a  written  instrument,  or 
its  existence  may  not  be  actual  but  presumed,  through  either  the 
doctrines  of  prescription  or  implication. 

One  of  the  fundamental  differences,  it  might  be  said  the  essen- 
tial difference,  between  a  public  and  a  private  corporation,  is 
that  in  the  case  of  a  private  corporation  the  charter  is  regarded 
as  a  contract  under  that  clause  in  the  constitution  of  the  United 
States  forbidding  the  states  from  passing  any  law  impairing  tne 
obligation  of  a  contract.  The  charter  of  a  public  corporation 
is  not  considered  a  contract,  nor  does  it  come  within  the  doctrine 
of  the  Dartmouth  College  Case.60 

The  reason  for  this  difference  of  holding  may  be  briefly  stated : 
A  public  corporation,  a  municipal  corporation  considered  in  its 
character  as  a  public  corporation,  and  a  public  quasi  corporation, 
are  each  and  all  regarded  as  agencies  of  the  government.  They 
are  involuntary  political  or  civil  divisions  of  the  state  created  by 
authority  of  law  to  aid  in  the  administration  of  government. 
Whatever  of  power  they  possess,  or  whatever  of  duty  they  are 
required  to  perform,  originates  in  the  authority  creating  them. 
They  are  organized,  mainly  for  the  interest,  advantage  and 
convenience  of  the  people  residing  within  their  territorial  boun- 
daries and  the  better  to  enable  the  government,  the  sovereign, 

64  Pac.  417;  People  v.  Town  of  Lin-  Prince  v.    Crocker,   166   Mass.   347; 

den,  107  Cal.  94,  40  Pac.  115;   Tay-  Berlin    v.    Gorham,    34   N.    H.    266; 

lor   v.   City  of  Ft.  Wayne,   47   Ind.  state  v.  Holden,  19  Neb.  249;    City 

274;    State  v.  Tucker,  48   Mo.  App.  Of  Paterson  v.  Society  for  Establish- 

531;   Woods  v.  Henry,  55  Mo.  560;  ing  Useful   Manufactures,   24   N.    J. 

People  v.  Snedeker,  30  App.  Div.  1,  Law    (4   Zab.)    385;    Mills    v.    Wil- 

51  N.  Y.  Supp.  768;   In  re  Summit  Hams,    33    N.    C.    (11    Ired.)     538; 

Borough,    114    Pa.    362.  Sharpless  v.  City  of  Philadelphia,  21 

so  Trustees  of  Dartmouth  College  pa.  147;  city  of  Erie  v.  Erie  Canal 

v.  Woodward,  4  Wheat.  (U.  S.)  518;  Co.,   59   Pa.   174;    City  of   Philadel- 

Butler    v.    Pennsylvania,    10    How.  phia  v.  Fox,  64   Pa.   169;    Town  of 

(U.  S.)  402;   State  Bank  of  Ohio  v.  Montpelier  v.  Town  of  East   Mont- 

Knoop,  16  How.   (U.  S.)   369;   Town  peiier,  29  Vt.  12;   Reeves  v.  Ander- 

of  Mt.  Pleasant  v.  Beckwith,  100  U.  SOn,  13  Wash.  17;  Washburn  v.  City 

S.  514;   Newton  v.  Mahoning  Coun-  of  Qshkosh,  60  Wis.  453.     See,  also, 

ty  Com'rs,  100  U.  S.  548;   Hewison  an  cases  cited  in  the  notes  to  this 

v.    City    of    New    Haven,    37    Conn,  section. 
475;   Cain  v.  Brown,  111  Mich.  657; 


§  22  CREATION    AND    DISSOLUTION.  39 

to  extend  to  them  the  protection  to  which  they  are  entitled,  and 
the  more  easily  and  beneficently  to  exercise  over  them  its 
authority.  The  powers  which  they  exercise  in  their  public 
capacity  are  powers  of  the  state,  and  the  duties  with  which  they 
are  charged  are  duties  of  the  state.61 

The  rights  conferred  upon  the  people  residing  within  the 
limits  of  these  organizations  are  political  in  their  character,  and 
it  has  been  said  that  "It  is  an  unsound  and  even  absurd  proposi 
tion  that  political  power  conferred  by  the  legislature  can  be 
come  a  vested  right  as  against  the  government  in  any  individual 
or  body  of  men."  Entirely  different  conditions  exist  and  prin- 
ciples apply  to  private  corporations  so  familiar  to  all  that  it  is 
unnecessary  to  repeat  them.62 

Not  being  a  contract,  therefore,  the  state  has  the  power  to 
alter,  amend,  change  or  repeal  the  charter  of  a  public  corpora 
tion  at  will.  "A  municipal  corporation  (in  a  broad  sense)  may 
be  viewed  in  different  aspects;  that  which  it  has  to  the  citizen 
and  that  which  it  bears  to  a  state.  Seen  in  the  latter  relation 
it  is  a  revocable  agency  constituted  for  the  purpose  of  carrying 
out  in  detail  such  objects  of  the  government  as  may  be  properly 
intrusted  to  a  subordinate;  having  no  vested  right  to  any  of 
its  forms  or  franchises,  and  entirely  under  the  control  of  the 
legislature,  which  may  enlarge  or  circumscribe  its  territorial  lim- 
its or  functions,  may  change  or  modify  its  various  departments,  or 
extinguish  it  with  the  breath  of  arbitrary  power."83 

ei  Askew  v.  Hale  County,  54  Ala.  change  the  character  of  the  Institu- 

639.  tion  in  that  respect  or  give  the  leg- 

62  People  v.  Morris,  13  Wend.  (N.  islature    any    power    over    it.     The 

Y.)    325.  right  to  change  civil  institutions  is 

ss  1  Hare,  Const.  Law,  p.  628;  Meri-  not   founded   on  their   being   incor- 

wether  v.   Garrett,   102    U.    S.   472;  porated  but  on  their  being  the  in- 

Terrett  v.  Taylor,  9  Cranch   (U.  S.)  struments    of    government    created 

43;    City  of  Covington   v.    Com.   of  for  its  purposes. 

Kentucky,  173  U.  S.  231,  19  S.  Ct.  The     grant     of     political     power 

383.  gives    to   the   legislature    the    right 

Allen   v.   McKean,    1    Sumn.    276,  to   modify  or  repeal  it.     University 

Fed.    Cas.  No.   229.     The  fact   that  of  Alabama  v.  Winston,  5  Stew.  & 

the  purpose  of  the  corporation  is  an  P.    (Ala.)    17;    Hewison   v.   City  of 

object    of   national    concern    and    a  New  Haven,   37  Conn.  475;   Shorter 

proper   subject   for   legislation   does  v.    Smith,    9    Ga.    517;    County    of 

not  render   it  a  public  institution,  Richland  v.  County  of  Lawrence,  12 

nor  does  the   fact   of  incorporation  111.    1;    City    of    Louisville    v.    Uni- 


40  CORPORATE  LIFE;  EXISTENCE.  §   22 

A  legislative  body  cannot  part  with  its  powers  or  delegate 
them  to  subordinate  agencies  so  as  to  be  unable  to  exercise  them 
on  all  suitable  occasions.84  In  the  Hartford  Bridge  Case  just 
cited,  the  supreme  court  of  the  United  States  held  that  the  legis- 
lature of  a  state  might  lawfully  repeal  or  discontinue  a  ferry 
franchise  granted  to  a  municipal  corporation.  Judge  Wood- 
bury  remarked  that  towns  and  cities  which  are  public  municipal 
and  political  bodies  "are  incorporated  for  public  and  not  pri- 
vate objects.  They  are  allowed  to  hold  privileges  or  property 
only  for  public  purposes.  The  members  are  not  shareholders, 
nor  joint  partners  in  any  corporate  estate,  which  they  can  sell 
or  devise  to  others,  or  which  can  be  attached  and  levied  on  for 
their  debts.  Hence,  generally,  the  doings  between  them  and 
the  legislature  are  in  the  nature  of  legislation  rather  than  com- 
pact and  subject  to  all  the  legislative  conditions  just  named, 
and  therefore  to  be  considered  as  not  violated  by  subsequent 
legislative  changes."65  The  power  to  alter,  amend  or  repeal  the 
charter  of  a  public  corporation  must  necessarily  exist  without 
limitation  in  the  sovereign,  otherwise  there  would  be  "number- 
less petty  governments  existing  within  the  state,  forming  a  part 
of  it,  but  independent  of  the  control  of  the  sovereign  power. ' ' 

versity  of  Louisville,  54  Ky.  (15  B.  "There  is  no  contract  between  the 
Mon.)  642;  Layton  v.  City  of  New  state  and  the  public  that  the  char- 
Orleans,  12  La.  Ann.  515;  Bradford  ter  of  a  city  shall  not  be  at  all 
v.  Gary,  5  Me.  (5  Greenl.)  339;  times  subject  to  legislative  control. 
City  of  Hagerstown  v.  Dechert,  32  All  persons  who  deal  with  such 
Md.  369;  Cobb  v.  Kingman,  15  Mass,  bodies  are  conclusively  presumed  to 
197;  Trustees  of  Public  Schools  v.  act  upon  knowledge  of  the  power  of 
Taylor,  30  N.  J.  Eq.  (3  Stew.)'  618;  the  Legislature.  There  is  no  such 
Berlin  T.  Gorham,  34  N.  H.  266;  thing  as  a  vested  right  held  by  any 
Weeks  v.  Gilmanton,  60  N.  H.  500;  individual  in  the  grant  of  legisla- 
Davidson  v.  City  of  New  York,  27  tive  power  to  them." 
How.  Pr.  (N.  Y.)  342;  Town  of  The  doctrine  stated  in  the  text  is 
Marietta  v.  Fearing,  4  Ohio,  427;  so  conclusively  established  and  so 
People  v.  Morris,  13  Wend.  (N.  Y.)  widely  held  by  all  courts  that  it  is 
325;  Howell  v.  Eldridge,  21  Wend,  considered  useless  to  multiply  cita- 
(N.  Y.)  679;  Gray  v.  City  of  Brook-  tions. 

lyn,  2  Abb.  Dec.    (N.  Y.)   267;   Mor-  e*  Town  of  East  Hartford  v.  Hart- 

ris'v.   State,   62   Tex.   728;    Bass  v.  ford   Bridge  Co.,    10   How.    (U.   S.) 

Fontleroy,  11  Tex.  698;   McCallie  v.  511. 

City   of   Chattanooga,    40    Tenn.    (3  es  See,    also,   Trustees   of   Schools 

Head)   317.  v.  Tatman,  13  111.  30;   City  of  New 

In  the  Meriwether  v.  Garrett  Case  Orleans  v.  Hoyle,  23  La.  Ann.  740. 
(102  U.  S.  472)   Justice  Field  said, 


§   23  CREATION    AND    DISSOLUTION.  41 

"Public  or  municipal  corporations  are  established  for  the  local 
government  of  towns  or  particular  districts.  The  special  pow- 
ers conferred  upon  them  are  not  vested  rights  as  against  the 
state,  but  being  wholly  political,  exist  only  during  the  will  of  the 
general  legislature;  otherwise  there  would  be  numberless  petty 
governments  existing  within  the  state  and  forming  part  of  it, 
but  independent  of  the  control  of  the  sovereign  power.  Such 
powers  may  at  any  time  be  repealed  or  abrogated  by  the  legis- 
lature, either  by  a  general  law  operating  upon  the  whole  state, 
or  by  a  special  act  altering  the  powers  of  the  corporation."66 

On  the  other  hand,  the  grant  of  authority  from  the  state  to  a 
private  corporation  is  considered  a  contract,  within  the  rule  as 
announced  in  the  Dartmouth  College  Case,  subject  only  to  change 
or  repeal  by  the  sovereign  upon  the  terms  and  conditions  which 
may  be  found  within  the  instrument  itself  or  which  exist  in  the 
general  laws  as  a  part  of  it.  This  doctrine  is  so  firmly  establish- 
ed in  the  jurisprudence  of  the  United  States  that  a  mere  refer- 
ence to  it  is  sufficient,  and  authorities  will  be  found  in  every 
state  in  the  Union  sustaining  it. 

§  23.    Rules  of  construction. 

The  better  rule  for  the  construction  of  the  charter  of  a  public 
corporation,  and  that  sustained  by  the  weight  of  authority,  is 
what  may  be  termed  the  rule  of  strict  construction.  The  cor- 
poration takes  nothing  by  its  cfiartcr  but  what  is  plainly  and 
unequivocally  granted.  This  is  especially  true  of  all  those  pow- 
ers, the  exercise  of  which,  if  liberally  considered,  might  lead  to 
the  placing  of  illegal,  unjust  or  burdensome  obligations  upon  the 
taxpayers  of  the  community.  The  officers  of  public  corpora- 
tions are  notoriously  slack  in  their  administration  of  public 
affairs. 

"It  is  a  well-settled  rule  of  construction  of  grants  by  the 
legislature  to  corporations,  whether  public  or  private,  that  only 
such  powers  and  rights  can  be  exercised  under  them  as  are  clear- 
ly comprehended  within  the  words  of  the  act,  or  derived  there- 
from by  necessary  implication,  regard  being  had  to  the  objects 

ee  Sloan  v.  State,  8  Blackf.  (Ind.)     pie    v.   Morris,    13   Wend.    (N.   Y.) 
361;  Armstrong  v.  Dearborn  County    325. 
Com'rs,  4  Blackf.    (Ind.)    208;   Peo- 


42  CORPORATE  LTFE;  EXISTENCE.  §   23 

of  the  grant.  Any  ambiguity  or  doubt  arising  out  of  the  terms 
used  by  the  legislature  must  be  resolved  in  favor  of  the  pub- 
lic."67 If  there  is  doubt  as  to  the  existence  of  power,  the  exer- 
cise of  that  power  should  be  denied.  However,  it  has  been  held 
that  if  contracts  have  been  made  and  labor  and  material  furnish- 
ed upon  a  particular  construction  of  a  city  charter  with  the 
general  acquiescence  of  the  inhabitants,  that  construction  will 
be  sustained  if  possible  though  it  may  differ  from  the  rule  given 
above.68 

And  as  a  further  modification  of  this  rule  it  has  been  held  by 
the  supreme  court  of  the  United  States  that  "although  neither 
privileges,  powers  nor  authorities  can  pass  by  an  act  of  incor- 
poration unless  they  be  given  in  unambiguous  words,  and  an  act 
giving  special  privileges  must  be  construed  strictly,  in  a  case 
where  a  sentence  is  capable  of  two  distinct  meanings,  it  must  be 
construed  according  to  the  subject-matter  contemplated  by  the 
legislature,  as  a  whole,  and  its  manifest  intention  and  design  not 
defeated/'69  In  this  connection  it  is  also  well  to  state  that  the 
rule  of  strict  construction  is  not  applied  to  such  a  degree  as 
to  defeat  the  purposes  for  which  the  corporation  was  organ- 
ized;70 and  this  is  especially  true  if,  in  the  adoption  of  a  more 
liberal  rule,  a  power  can  be  exercised  which,  as  Judge  Cooley 

"Minturn  v.  Larue,  23  How.   (U.  1  Clark,  Ch.   (N.  Y.)   223;   Bank  of 

S.)    435;    Thompson  v.  Lee  County,  Pennsylvania  v.   Com.,   19   Pa.   144; 

3    Wall.    (U.    S.)    327;    Thomas    v.  Ex  parte  Coombs,  38  Tex.  Cr.  App. 

City  of  Richmond,  12  Wall.   (U.  S.)  648,   44   S.   W.   854;    Reeves   v.   An- 

349;   Jefferson  v.  Bank  of  Skelly,  1  derson,  13  Wash.  17. 

Black     (U.    S.)     436;     Douglass    v.  es  Memphis    v.    Brown,    97    U.    S. 

City  of  Placerville,  18  Cal.  643;   In  300. 

re  Bulger,   45   Cal.   553;    Brooks   v.  eo  Curtis  v.  County  of 'Butler,  24 

Fischer,    79    Cal.    173;    Bradley    v.  How.    (U.   S.)    435;    Gelpcke  v.   Du- 

New  York  &  N.  H.  R.  Co.,  21  Conn,  buque,  68  U.  S.  (I  Wall.)   220;   Mo- 

294;    McGarty  v.  Deming,  51  Conn,  ran    v.    Miami    County    Com'rs,    2 

422;  Clark  v.  City  of  Davenport,  14  Black    (U.  S.)    722;    City  &  County 

Iowa,  494;   City  of  Leavenworth   v.  of   St.  Louis   v.  Alexander,   23   Mo. 

Norton,   1    Kan.   432;    City   of   Cov-  483. 

ington   T.   Boyle,   69   Ky.    (6  Bush)  TO  Thomason  v.  Ashworth,  73  Cal. 

204;   Tyler's  Ex'r  v.  Elizabethtown,  73;   San  Diego  v.  Granniss,  77  Cal. 

72   Ky.    (9  Bush)    510;    Leonard  V.  511;    Smith   v.   City  of  Madison,   7 

City  of  Canton,  35  Miss.  189;  Day  v.  Ind.   86;    Kyle  v.   Malin,  8  Ind.  34; 

City   of    Morristown,    63    N.   J.    Eq.  Torrent   v.    City    of    Muskegon,    47 

353,  46  Atl.  1098;   Parker  v.  Baker,  Mich.  115. 


§   24  CREATION    AND    DISSOLUTION.  43 

said   in   a   Michigan   case,   "in   its   exercise    concerns   only   the 
municipality  and  can  wrong  or  injure  no  one."11 

The  general  rule  applies  with  all  its  force  to  words  of  exemp- 
tion in  the  charter.72  Charter  powers,  it  is  clear,  cannot  be  ex- 
tended by  an  unusual  or  unauthorized  construction  of  its  terms, 
and  it  is  equally  certain  that  no  public  corporation  can  itself,  by 
giving  such  construction,  or  interpretation,  acquire  powers  not 
granted.73  "Words  should  be  taken  in  their  ordinary  sense  and 
meaning  as  affected  by  local  conditions,  and,  where  no  superior 
or  controlling  reasons  exist  for  holding  otherwise,  that  cardinal 
and  elementary  principle  in  the  interpretation  of  statutes  should 
be  also  applied,  namely,  that  the  true  intent  and  meaning  of  the 
words  used  is  to  be  ascertained  by  an  examination  of  the  grant 
of  power  as  a  whole.74 

§  24.    The  charter  considered  as  evidence. 

It  is  generally  held  that  the  act  of  incorporation  or  charter  of 
a  public  corporation  or  municipality  is  a  public  act  of  which  the 
courts  will  take  judicial  notice,  but  acts,  votes  and  ordinances 
are  not  public  matters  and  must  be  specially  pleaded  and 
proved.75  But  in  Iowa  it  is  held  that  when  a  city  or  town  is  in- 
corporated by  special  act,  the  courts  will  take  judicial  notice  of 
its  incorporation;  otherwise  when  it  is  incorporated  under  a 
general  act.  There  the  court  says  the  fact  of  its  corporate  char- 
acter must  be  pleaded  and  proved.76 

Where  an  original  city  charter  contained  an  express  pro- 
vision declaring  it  a  public  act,  it  was  held,  in  a  New  Jersey 

71  City  of  Port  Huron  v.  McCall,  Dubuque    v.    City    of    Dubuque,    7 
46  Mich.  565.  Iowa,  262;   Holland  v.  City  of  Balti- 

72  Borough  of  Truro  v.  Reynalds,  more,  11  Md.  186;  Com.  v.  Dejardin, 
1  Moore  &  S.  272;   Lord  Middleton  126  Mass.  46;   Verdin  v.  City  of  St. 
v.  Lambert,  1  Adol.  &  E.  401.  Louis,  131  Mo.   26;    Ruschenberg  v. 

TS  Butler  v.  City  of  Charlestown,  Southern  Elec.  R.  Co.,  161  Mo.  70; 

73  Mass.   (7  Gray)   12;  Ritterskamp  Kirkham  v.  Russell,  76  Va.  956. 

v.  Stifel,  59  Mo.  App.  510;    City  of  "  Beaty   v,   Knowles,    4   Pet.    (U. 

Brookfield  v.  Kitchen,  163  Mo.  546.  S.)    152;    People  v.  Potter,   35   Cal. 

But  see  Frazier  v.  Warfield,  13  Md.  110;   Stier  v.  City  of  Oskaloosa,  41 

279.  Iowa,  353;  Briggs  v.  Whipple,  7  Vt. 

74  Chicago  Dock  &  C.  Co.  v.  Gar-  15;  Winooski  v.  Gokey,  49  Vt.  282. 

rity,  115  111.  155;  Webber  v.  City  of  ™  Hard    v.    City    of    Decorah,    43 

Chicago,  148  111.  313;  District  Tp.  of  Iowa,   313. 


44  CORPORATE  LIFE;  EXISTENCE.  §   25 

case,77  that  supplements  or  amendments  to  it  would  be  treated 
likewise  as  public  acts,  and  would  be  judicially  noticed  without 
pleading,  although  they  might  not  contain  the  same  provision. 
In  the  framing  of  a  city  charter,  it  has  been  decided  that  where 
two  of  the  fifteen  freeholders  chosen  to  prepare  it,  as  provided  by 
the  constitution,  were  ineligible,  the  remaining  thirteen  were  com- 
petent to  organize  and  act  as  such  board  ;78  and  where  the  charter 
of  a  municipal  corporation  contained  a  mistake,  the  supreme 
court  of  New  Hampshire  held79  that  it  could  not  be  corrected  by 
a  court  of  law  in  a  suit  between  individuals. 

§  25.    Acceptance. 

A  public  corporation  being  so  emphatically  and  distinctly  a 
governmental  agent  under  the  control  and  absolute  will  of  the 
state,  it  follows  that  there  is  no  necessity  for  provisions  in  a 
proposed  charter  or  act  of  organization  looking  to  or  providing 
for  its  acceptance  by  the  people  residing  within  the  limits  of  the 
territory  affected. 

In  this  respect  the  law  again  is  the  direct  antithesis  of  that  re- 
lating to  the  acceptance  of  the  charter  of  a  private  corporation 
by  its  incorporators.  The  charter  of  a  private  corporation  can- 
not be  arbitrarily  forced  upon  its  members  by  the  state,  and 
their  acceptance  is  one  of  the  essentials  of  a  legal  private  cor- 
poration. To  this  rule  there  is  no  dissent.80  Although  the  prin- 

"  Hawthorne  v.  City  of  Hoboken,  297;  Haslett's  Ex'rs  v.  Wotherspoon, 

32  N.  J.  Law,  172.  See,  also,  Ste-  1  Strob.  Eq.  (S.  C.)  209;  Lincoln  & 

phens  &  C.  Transp.  Co.  v.  Central  K.  Bank  v.  Richardson,  1  Me.  (1 

R.  Co.,  33  N.  J.  Law,  229;  Bowie  v.  Greenl.)  81.  Contra,  as  to  public 

City  of  Kansas,  51  Mo.  454.  corporations:  Dillon,  Mun.  Corp. 

TS  People  v.  Hecht,   105   Cal.    621.  (3d    Ed.)     §    44;    State    v.    Curran, 

7»  Proprietors  of  Enfield  v.  Per-  12  Ark.  321;  People  v.  Wren,  5  111. 

mit,  5  N.  H.  280.  (4  Scam.)  269;  Warren  v.  City  of 

so?  Thompson,  Corp.  §  8160;  1  Charlestown,  68  Mass.  (2  Gray) 

Clark  &  M.  Private  Corp.  §  44,  and  104;  State  v.  Haines,  35  Or.  379, 

cases  cited;  1  Cook,  Stock  &  S.  §  2  Mun.  Corp.  Cas.  430;  Morford 

640;  Ellis  v.  Marshall,  2  Mass.  269;  v.  Unger,  8  Iowa,  82;  Fire  Depart- 

Inhabitants  of  Hampshire  County  ment  v.  Kip,  10  Wend.  (N.  Y.)  267; 

v.  Inhabitants  of  Franklin  County,  People  v.  City  of  Butte,  4  Mont. 

16  Mass.  76;  2  Kent,  Comm.  277;  174;  Inhabitants  of  Gorham  v.  In- 

Lexington  &  W.  C.  R.  Co.  v.  Chan-  habitants  of  Springfield,  21  Me.  58; 

dler,  54  Mass.  (13  Mete.)  315;  Berlin  v.  Gorham,  34  N.  H.  266; 

Wright  v.  Tukey,  57  Mass.  (3  Gush.)  People  v.  Stout,  23  Barb.  (N.  Y.) 


§   26  CREATION    AND    DISSOLUTION.  45 

ciple  that  a  charter  is  a  law  and  will  take  effect  without  the  con- 
sent of  those  who  are  to  be  governed  and  whose  property  may 
be  affected  bjr  it  is  well  established,  yet,  it  is  customary,  in  the 
granting  of  charters  to  municipal  corporations  proper,  to  permit 
a  vote  of  the  people  upon  the  question  of  acceptance,81  and  this 
fact  leads,  as  will  be  learned,  to  material  differences  in  the  lia- 
bilities of  such  corporations  as  compared  with  those  where  the 
instrument  of  government  is  arbitrarily  imposed.  An  accept- 
ance is  usually  evidenced  by  a  vote  of  the  people  given  at  an 
election  held  at  the  time  and  in  the  manner  prescribed  by  law,82 
though  some  cases  hold  that  it  may  be  implied  from  acts  done  by 
the  people  under  some  provision  of  the  proposed  charter.83 

§  26.    Distinction  between  a  public  quasi  and  a  municipal  cor- 
poration in  this  regard. 

An  essential  distinction  or  difference  between  a  public  or  a 
public  quasi  corporation  and  a  municipal  corporation  is  logically 
considered  here. 

"Municipal  corporations  proper  are  called  into  existence  either 
at  the  direct  solicitation  or  by  the  free  consent  of  the  people 
who  compose  them.  Counties  (and  the  same  applies  to  other 
public  and  public  quasi  corporations)  are  local  subdivisions  of  a 
state  created  by  the  sovereign  power  of  the  state  of  its  own 
sovereign  will,  without  the  particular  solicitation,  consent  or 
concurrent  action  of  the  people  who  inhabit  them.  The  former 
organization  is  asked  for,  or  at  least  assented  to,  by  the  people  it 
embraces;  the  latter  is  superimposed  by  a  sovereign  and  para- 
mount authority. 

349;   State  v.  Babcock,  25  Neb.  709.  J.  Law  (4  Zab.)   385;  Foote  v.  City 

When  acceptance  may  be  requisite:  of  Cincinnati,  11  Ohio,  408;  Bull  v. 

Zabriskie  v.  Cleveland,  C.   &  C.  R.  Read,  13  Grat.  (Va.)   78. 
Co.,  23  How.   (U.  S.)    381.  82  See    cases    cited    in    preceding 

si  People    v.    McFadden,    81    Cal.  note;   City  of  Brunswick  v.  Finney, 

489;   People  v.  Salomon,  51  111.  37;  54  Ga.  317;    Stephens  v.  People,  89 

Clarke  v.  Rogers,  81  Ky.  43;  Call  v.  111.  337;    State  v.  Tosney,  26  Minn. 

Chadbourne,    46    Me.    206;      Prince  262;     State    v.    Town    of    Westport, 

George's  County  Com'rs  v.  Village  of  116  Mo.  582;  People  v.  City  of  Butte, 

Bladensburg,    51    Md.    465;    City    of  4  Mont.  174;  Smith  v.  McCarthy,  66 

St.    Louis    v.    Russell,    9    Mo.    507;  Pa.   359;    Ewing   v.    State,    81  Tex. 

State  v.  Noyes,  30  N.  H.  279;   City  172. 

of    Paterson   v.    Society   for    Estab-        sa  Rex    v.   Hughes,   1    Man.   &  R. 

lishing  Useful   Manufactures,  24   N.  625,    7    Barn.    &    C.    708;     City    of 


46  CORPORATE  LIFE;  EXISTENCE.  §   26 

"A  municipal  corporation  proper  is  created  mainly  for  the 
interest,  advantage  and  convenience  of  the  locality  and  its  peo- 
ple; a  county  organization  is  created  almost  exclusively  with  a 
view  to  the  policy  of  the  state  at  large,  for  purposes  of  political 
organization  and  civil  administration  in  matters  of  finance,  of 
education,  of  provision  for  the  poor,  of  military  organization, 
of  the  means  of  travel  and  transport,  and  especially  for  the 
general  administration  of  justice.  With  scarcely  an  exception 
all  the  powers  and  functions  of  the  county  organization  have  a 
direct  and  exclusive  reference  to  the  general  policy  of  the  state, 
and  are,  in  fact,  but  a  branch  of  the  general  administration  of 
that  policy."84 

The  doctrine  of  this  case  is  sustained  without  exception  by 
the  authorities,  and  it  follows  from  an  examination  of  the  cita- 
tions that  the  charter  of  a  public  or  a  public  quasi  corporation 
may  be,  and  usually  is,  arbitrarily  imposed  upon  the  people 
residing  within  a  certain  district;85  while,  on  the  other  hand, 
there  exists,  or  may  exist,  as  already  stated,  the  necessity  of  an 
acceptance  or  an  assent  by  the  people  affected  to  the  imposition 
otf  a  charter  or  other  organic  form  of  government  upon  a 
municipality.86  The  history  and  mode  of  organization  of  Eng- 

Lafayette  v.  Jenners,  10  Ind.  70;  se  Rex  v.  Mayor  of  Bridgewater, 

Taylor  v.  Newberne  Com'rs,  55  N.  11  Mod.  291;  Rex  v.  Larwood,  1  Ld. 

C.  (2  Jones  Eq.)  141.  Raym.  29;  City  of  Brunswick  v. 

s*  Hamilton  County  Com'rs  v.  Finney,  54  Ga.  317;  Slate  v.  City  of 

Mighels,  7  Ohio  St.  109;  citing  Ward  Blue  Ridge,  113  Ga.  646,  38  S.  E. 

v.  Hartford  County,  12  Conn.  406;  977;  State  v.  Hertsch,  136  Ind.  293, 

Boalt  v.  Williams  Com'rs,  18  Ohio,  36  N.  E.  213;  Poor  v.  People,  142 

16;  Cincinnati,  W.  &  Z.  R.  Co.  v.  111.  309;  Morford  v.  Unger,  8  Iowa, 

Clinton  County  Com'rs,  1  Ohio  St.  82;  State  v.  Olinger  (Iowa)  72  N. 

89.  W.  441;  Stone  v.  City  of  Charles- 

85  Inhabitants  of  Gorham  v.  In-  town,  114  Mass.  214;  Ray  v.  De 

habitants  of  Springfield,  21  Me.  58;  Butts,  180  Mass.  155,  61  N.  E.  887; 

Swett  v.  Sprague,  55  Me.  190.  As  City  of  Jackson  v.  Shlomberg,  70 

to  a  "city  of  the  second  class."  Miss.  47,  11  So.  721;  State  v.  Govan, 

State  v.  Holden,  19  Neb.  249;  State  70  Miss.  535,  12  So.  959;  City  of  St. 

v.  Babcock,  25  Neb.  709;  Berlin  v.  Louis  v.  Russell,  9  Mo.  507;  Ewing 

Gorham,  34  N.  H.  266;  State  v.  v.  Hoblitzelle,  85  Mo.  64;  Kelly  v. 

Haines,  35  Or.  379,  58  Pac.  39;  Meeks,  87  Mo.  396;  People  v.  City 

Wood  v.  Quimby,  20  R.  I.  482,  40  of  Butte,  4  Mont.  174;  State  v. 

Atl.  161;  Blessing  v.  City  of  Gal-  Noyes,  30  N.  C.  (10  Fost.)  279;  City 

veston,  42  Tex.  641;  Lum  v.  City  of  Paterson  v.  Society  for  Estab- 

of  Bowie  (Tex.)  18  S.  W.  142.  lishing  Useful  Manufactures,  24  N. 


§   27  CREATION    AND    DISSOLUTION.  47 

lish  municipalities  must  be  considered  in  determining  the  rele- 
vancy and  force  of  English  citations. 

No  specific  form  of  acceptance  of  a  charter  under  the  old 
methods  of  creation  was  provided,  and  the  courts  therefore  held 
that  any  unequivocal  act  showing  a  desire  and  intention  to  ac- 
cept the  same  would  be  sufficient,  provided  it  was  done  by  a 
majority  of  the  grantees,87  and  the  assent  of  the  incorporators  at 
large  might  be  presumed  from  long  acquiescence  in  the  acts  and 
declarations  of  the  officers  of  the  municipality.88 

§  27.    Amendment  of  the  charter. 

The  legislature,  in  the  absence  of  constitutional  restriction, 
has  the  power  to  amend,  alter  or  repeal,  directly  or  indirectly, 
the  charters  of  all  public  corporations,  the  sole  limitation  upon 
his  rule  being  that  the  rights  or  existing  creditors  or  contract 
obligations  to  third  parties  cannot  be  impaired  or  destroyed.89 
The  amendment  of  an  existing  charter  may  be  effected  through 
the  passage  of  legislation  directly  amending  charter  provisions, 
in  case  of  municipal  corporations,  subject  to  the  vote  of  the  peo- 

J.  Law  (4  Zab.)  385;  De  Hart  v.  89  Von  Hoffman  v.  City  of  Quincy, 

Atlantic  City,  62  N.  J.  Law,  586,  4  Wall.  (U.  S.)  535;  Lee  County  v. 

41  Atl.  687;  Corning  v.  Greene,  23  Rogers,  7  Wall.  (U.  S.)  181;  Butz 

Barb.  (N.  Y.)  33;  Bank  of  Chenan-  v.  City  of  Muscatine,  8  Wall.  (U. 

go  v.  Brown,  26  N.  Y.  467;  People  S.)  575;  Broughton  v.  Pensacola, 

v.  Stout,  23  Barb.  (N.  Y.)  349;  93  U.  S.  266;  Mount  Pleasant  v. 

Com.  v.  Cullen,  13  Pa.  133;  In  re  Beckwith,  100  U.  S.  514;  Port  of 

Vacation  of  Henry  St.,  123  Pa.  346;  Mobile  v.  Watson,  116  U.  S.  289; 

State  v.  Bean,  26  Tex.  Civ.  App.  Brewis  v.  City  &  Village  of  Duluth, 

605,  65  S.  W.  202;  State  v.  La-  13  Fed.  334;  Pacific  Imp.  Co.  v. 

moureux,  3  Wyo.  731,  30  Pac.  243.  City  of  Clarksdale,  20  C.  C.  A.  635, 

ST  Rex  v.  Hughes,  7  Barn.  &  C.  74  Fed.  528;  Amy  v.  City  of  Selma, 

708.  See,  also,  Russell  v.  McLellan,  77  Ala.  103;  Smith  v.  Morse,  2  Cal. 

31  Mass.  (14  Pick.)  63;  Bank  of  U.  524;  City  of  Olney  v.  Harvey,  50 

S.  v.  Dandridge,  12  Wheat.  (U.  S.)  111.  453;  Boyd  v.  Chambers,  78  Ky. 

64-71;  Taylor  v.  Newberne  Com'rs,  140;  Ross  v.  Wimberly,  60  Miss. 

55  N.  C.  (2  Jones  Eq.)  141;  Owen  345,  overruling  Port  Gibson  v. 

v.  Purdy,  12  Ohio  St.  73.  Moore,  21  Miss.  (13  Smedes  &  M.) 

ss  Com.  v.  Cullen,  13  Pa.  133.  This  157;  Scaine  v.  Inhabitants  of  Belle- 
case  is  also  authority  for  the  propo-  ville,  39  N.  J.  Law,  526;  Brooklyn 
sition  that  a  failure  to  elect  offi-  Park  Com'rs  v.  Armstrong,  45  N.  Y. 
cers  does  not  work  a  dissolution  234;  State  v.  City  of  Milwaukee,  25 
while  the  capacity  to  elect  remains.  Wis.  122. 


48                                 CORPORATE  LIFE;  EXISTENCE.  §  27 

pie  of  the  municipality,  in  the  same  manner  as  the  acceptance 
of  or  assent  to  the  original  charter.90 

The  act  amending  a  charter  of  a  corporation  may  be  so  drastic 
in  its  terms  that  it  will  be  necessary,  in  order  to  transfer  to  the 
new  the  particular  powers  of  the  old  corporation,  to  provide  an 

»o  Girard  v.  City  of  Philadelphia,  v.  Marsh  Oil  Co.,  140  Mo.  458,  41  S. 

74  U.  S.   (7  Wall.)   1;   Essex  Board  W.  943;   Kansas  City  v.  Stegmiller, 

v.  Skinkle,  140  U.  S.  334;  Baader  v.  151  Mo.  189,  52  S.  W.  723;   State  v. 

City  of  Cullman,  115  Ala.  539;  Peo-  Union,  33  N.  J.  Law,  350;   State  v. 

pie  v.  City  of  Coronado,  100  Cal.  571;  City  of  Passaic,  38  N.  J.  Law,  171; 

Blanchard  v.  Hartwell  (Cal.)  62  Pac.  Attorney-General  v.  Shepard,  62  N. 

509;   Banaz  v.  Smith,  133  Cal.  102,  H.  383;   Wallace  v.  Trustees,  84  N. 

65  Pac.  309;  Wiggin  v.  City  of  Lew-  C.  164;  Armitage  v.  Fisher,  4  Misc. 

Iftton   (Idaho)   69  Pac.  286;   Coving-  315,  24  N.  Y.  Supp.  650;    People  v. 

ton   v.   City   of  East   St.   Louis,   78  Dooley,   171  N.  Y.  74;   Philadelphia 

111.  548;    Guild  v.   City  of  Chicago,  v.   Fox,   64   Pa.  169;    William's  Ap- 

82  111.  472;  Crook  v.  People,  106  111.  peal,   72   Pa.   214;    State  v.   Denny, 

237;    Martin  v.  People,  87  111.  524;  4  Wash.  135,  29  Pac.  991;   Wade  v. 

Eichels  v.  Evansville  St.  R.  Co.,  78  City  of  Tacoma,  4  Wash.  85,  29  Pac. 

Ind.    261;    Davis    v.    Woolnough,    9  983. 

Iowa,  104;   Elliott  v.  City  of  Louis-  The  extension  of  the  limits  of  a 

ville,    101   Ky.   262,   40   S.   W.   690;  city  held  not  an  amendment  to  its 

City  of  Annapolis  v.  State,  30  Md.  charter.     State  v.  Warner,  4  Wash. 

112;     Powell    v.    Jackson    Common  773;    Pierce   v.   City   Clerk   of   Spo- 

Council,  51  Mich.  129;  Elliott  v.  City  kane,  7  Wash.  132;  Reeves  v.  Ander- 

of  Detroit,  121  Mich.  611,  84  N.  W.  son,  13  Wash.  17;  State  v.  Doherty, 

820;  State  v.  Copeland,  66  Minn.  315,  16  Wash.  382. 

69  N.  W.  27;   Flynn  v.  Little  Falls  Roby  v.  Sheppard,  42  W.  Va.  286. 

Elec.  &  Water  Co.,  74  Minn.  180,  77  A  special  statute  amending  charter 

N.  W.  38,  78  N.  W.  106.  of  town  of  more  than  2,000  inhabi- 

Hopkins    v.    City    of    Duluth,    81  tants  by  annexing  territory  includ- 

Minn.    189,    83   N.   W.    536.     Const,  ed  in  another  town  is  not  an  amend- 

art.    4,    §    36,    providing    that    new  ment   of   the   charter   of   the   latter 

charters  or  amendments   should  be  town,   in  violation  of  Const,  art.  6, 

submitted  for  ratification  to  the  vot-  §  39. 

ers    of    the    city    whose    charter    it  Shank    v.    Town    of   Ravenswood, 

was  proposed  to  change,  not  a  vio-  43   W.   Va.   342;    Thompson   v.   City 

lation  of  art.  4,  §  4,  Constitution  of  of  Milwaukee,  69  Wis.  492,  34  N.  W. 

the    United    States    providing    that  402. 

"the  United  States  shall  guarantee  Smith  v.  Sherry,  50  Wis.  210.  Un- 
to every  state  in  this  Union  a  repub-  der  Wisconsin  Const,  art.  4,  §§  31-32, 
lican  form  of  government."  as  amended  in  1871,  the  legislature 

Sellick  v.  Town  of  Fayette,  3  Mo.  has    no    power    by    special    act    to 
99;    State  v.   City  of   St.   Louis,   73  amend  town  or  village  charter  grant- 
Mo.  435;  City  of  Westport  v.  Kansas  ed  prior  to  1871. 
City,  103  Mo.  141;  City  of  St.  Louis  Adams  v.  City  of  Beloit,  105  Wis. 
v.  Dorr,  145  Mo.  466;    Kansas  City  363,  81  N.  W.'  869;   Oshkosh  Water- 


§  28 


CREATION    AND    DISSOLUTION. 


49 


enabling  clause  empowering  the  new  corporation  to  act  in  the 
particular  case  or  a  general  clause  embracing  the  particular 
case.91 

§  28.    By  implication  or  indirection. 

An  amendment  is  often  effected  by  the  passage  of  acts  control- 
ling or  relating  to  certain  powers  or  duties  of  a  municipality,  and 
which  in  their  terms  are  different  from  existing  charter  pro- 
visions regulating  the  same  matters;  the  courts  hold  in  these 
cases  that  the  effect  of  such  legislation  is  to  amend  or  change  the 
provisions  of  existing  law.92  Amendments  or  repeals  by  impli- 
cation are  not  favored  by  the  courts,  however,  and  unless  the 


works  Co.  v.  City  of  Oshkosh,  109 
Wis.  208,  85  N.  W.  376. 

Kansas  City  v.  Stegmiller,  151  Mo. 
189.  An  amendment  of  a  city  char- 
ter takes  effect  from  the  date  of  its 
approval,  unless  otherwise  provided 
by  law. 

In  the  case  of  Meriwether  v.  Gar- 
rett,  102  U.  S.  472,  Mr.  Justice  Field 
said:  "The  right  of  the  state  to 
repeal  the  charter  of  Memphis  can- 
not be  questioned.  Municipal  cor- 
porations are  mere  instrumentali- 
ties of  the  State  for  the  more  con- 
venient administration  of  local  gov- 
ernment. Their  powers  are  such  as 
the  Legislature  may  confer  and 
these  may  be  enlarged,  abridged  or 
entirely  withdrawn  at  its  pleasure. 
This  is  common  learning,  found  in 
all  adjudications  on  the  subject  of 
municipal  bodies  and  repeated  by 
text  writers.  There  is  no  contract 
between  the  State  and  the  public 
that  the  charter  of  a  city  shall  not 
be  at  all  times  subject  to  legislative 
control.  All  persons  who  deal  with 
such  bodies  are  conclusively  pre- 
sumed to  act  upon  knowledge  of  the 
power  of  the  Legislature.  There  is 
no  such  thing  as  a  vested  right  held 
by  any  individual  in  the  grant  of 
legislative  power  to  them."  And  in 

Abb.  Corp. — 1. 


the  dissenting  opinion  of  Mr.  Jus- 
tice Strong  is  found  the  following 
language  as  illustrative  of  the  doc- 
trine first  stated  in  this  section: 

"It  can  make  no  difference  that 
the  city  of  Memphis  was  a  munici- 
pal corporation.  Its  charter  as  such 
does  not  affect  the  nature  of  its  obli- 
gations to  its  creditors,  or  its  ces- 
tuis  que  trust,  or  impair  the  reme- 
dies they  would  have  if  the  city 
was  a  common  debtor  or  trustee. 
While  as  a  municipal  corporation 
the  city  had  public  duties  to  per- 
form, yet  in  contracting  debts  au- 
thorized by  the  law  of  its  organ- 
ization, or  in  performing  a  private 
trust,  it  is  regarded  by  the  law  as 
standing  on  the  same  footing  as  a 
private  individual,  with  the  same 
rights  and  duties,  and  with  the  same 
liabilities,  as  attend  such  persons. 
Over  its  public  duties,  it  may  be  ad- 
mitted, the  Legislature  has  plenary 
authority.  Over  its  private  obliga- 
tions it  has  not." 

91  Fowle    v.    Common    Council    of 
Alexandria,  3  Pet.  (U.  S.)  398;  City 
of    Savannah    v.    Steamboat   Co.    of 
Georgia,  R.  M.  Charlt.  (Ga.)  342. 

92  Baader  v.  City  of  Cullman,  115 
Ala.    539,   22    So.   19;    In   re   House 
Resolution   Relating  to   House   Bill 


50 


CORPORATE  LIFE;  EXISTENCE. 


§  28 


intent  clearly  appears93  or  the  legislation  is  so  inconsistent  that 
all  cannot  stand,9*  such  an  effect  will  not  be  given  to  it.  Judge 
Oooley  has  said:95  "Repeals  by  implication  are  not  favored, 
and  the  repugnancy  between  two  statutes  should  be  very  clear  to 
warrant  a  court  in  holding  that  the  later  in  time  repeals  the 
other  when  it  does  not  in  terms  purport  to  do  so.  This  rule  hag 
peculiar  force  in  the  case  of  laws  of  special  and  local  application 
which  are  never  to  be  deemed  repealed  by  general  legislation 
except  upon  the  most  unequivocal  manifestation  of  intent  to  that 
effect."  The  principles  above  clearly  apply  where  the  charter 
of  the  municipality  exists  as  special  legislation  and  the  amend- 
ment or  repeal  is  claimed  to  be  affected  by  a  general  law  or  vice 
versa.96  The  adoption  of  an  amendment  to  a  state  constitution 
is  usually  considered  to  amend  or  repeal  all  legislation  whether 


116,  12  Colo.  289.  Contra,  Horn  v. 
State  (Ga.)  40  S.  E.  297. 

Williamson  v.  City  of  Keokuk,  44 
Iowa,  88.  A  statute  entitled  as  an 
amendment  embracing  objects  for- 
eign to  the  charter  of  the  city  is 
void  under  constitutional  provision 
requiring  the  objects  of  the  law  to 
be  expressed  in  the  title. 

Ford  v.  Town  of  North  Des  Moines, 
80  Iowa,  626;  Warren  v.  City  of 
Evansville,  106  Ind.  104;  State  v. 
Olinger  (Iowa)  72  N.  W.  441;  So- 
corro  County  Com'rs  v.  Leavitt,  4 
Gild.  (N.  M.)  37;  State  v.  Zimmer- 
man, 86  Minn.  353,  90  N.  W.  783; 
State  v.  De  Bar,  58  Mo.  395;  Worth- 
ley  v.  Steen,  43  N.  J.  Law,  542; 
City  of  St.  Louis  v.  Dorr,  145  Mo. 
466,  41  S.  W.  1094,  46  S.  W.  976. 

Additional  powers  will  be  regard- 
ed as  supplemental  to  the  charter, 
not  as  an  admendment  or  revision. 
Sheridan  v.  City  of  Salem,  14  Or. 
328,  12  Pac.  925;  State  v.  Wall,  47 
Ohio  St.  499;  Erie  v.  Flint,  8  Pa. 
Co.  Ct.  R.  482;  State  v.  District  of 
Narragansett,  16  R.  I.  424;  King 
County  Com'rs  v.  Davies,  1  Wash. 
St.  290. 


Act  of  May  23,  1874,  dividing  cities 
into  classes,  held  not  to  affect  the 
city  of  Wilkesbarre  incorporated  be- 
fore the  passage  of  this  act.  Phoe- 
nix v.  Reynolds,  13  Phila,  (Pa.)  522. 

as  Thomason  v.  Ashworth,  73  Cal. 
73;  People  v.  Londoner,  13  Colo.  303; 
State  v.  Spaude,  37  Minn.  322;  Bow- 
yer  v.  City  Council  of  Camden,  50 
N.  J.  Law,  87;  Socorro  County 
Com'rs  v.  Leavitt,  4  Gild.  (N.  M.) 
37;  Moran  v.  Long  Island  City,  101 
N.  Y.  439. 

94  Bond  v.  Hiestand,  20  La.  Ann. 
139;  City  of  Cumberland  v.  Magrud- 
er,  34  Md.  381;  Flynn  v.  Little  Falls 
Elec.   &  Water   Co.,   74   Minn.    180; 
People   v.    O'Neil,    109    N.    Y.    251; 
Buford  v.  State,  72  Tex.  182. 

95  Const.  Lim.  (6th  Ed.)  182. 

96  McGarty    v.    Deming,    51    Conn. 
422;  City  of  Griffin  v.  Inman,  57  Ga. 
370;  City  of  East  St.  Louis  v.  Max- 
well, 99  111.  439;  Hammond  v.  Haines, 
25  Md.  541;    Fish  v.  Branin,  23  N. 
J.  Law  (3  Zab.)  484;  Bodine  v.  Com- 
mon  Council  of  Trenton,   36   N.  J. 
Law,  198;    In  re  Com'rs  of  Central 
Park,  50  N.  Y.  493;  City  of  Harris- 
burg  v.  Sheck,  104  Pa.  53. 


§   29  CREATION    AND    DISSOLUTION.  5i 

general  or  special,  inconsistent  or  in  conflict  with  it.97  The 
rights,  however,  of  third  parties,  either  as  creditors  or  as  holding 
contract  obligations,  cannot  be  impaired  or  destroyed  by  at- 
tempts at  amendment  or  repeal  whether  by  legislative  act  or 
constitutional  amendment.98 

§  29.    Effect  of  amendments. 

The  discussion  of  the  effect  of  such  amendments  or  changes 
by  the  courts  is  interesting.  It  has  been  held  by  the  supreme 
court  of  the  United  States  that  neither  the  identity  of  a  municipal 
corporation  nor  its  right  to  hold  property  devised  to  it  is  de- 
stroyed by  a  change  of  its  name,  an  enlargement  of  its  area,  or 
an  increase  of  the  number  of  its  corporators.99 

An  act  incorporated  a  town  with  "all  the  rights,  privileges 
and  powers  conferred  upon"  another  town  by  an  act  of  an 
earlier  date.  Afterwards  additional  powers  were  conferred 
upon  this  last  named  town  by  an  amendatory  act.  It  was  held 
that  the  first  named  town  obtained  no  additional  powers  by  vir- 
tue of  such  amendatory  act.100 

Although  the  legislature  may  by  special  act  amend  an  exist- 
ing charter,  it  cannot,  under  the  guise  of  such  amendment,  ex- 
tend the  limits  of  a  municipality  so  as  to  destroy  the  corporate 
existence  of  adjoining  towns  incorporated  under  the  general 

9"  City  of  East  St.  Louis  v.  Amy,  corporation,  in  whole  or  in  part,  by 
120  U.  S.  600;  Donahue  v.  Graham,  an  amendment  of  its  provisions,  or 
61  Cal.  276;  City  of  Hagerstown  v.  substitution  of  a  new  charter  in 
Dechert,  32  Md.  369;  Trustees  of  place  of  the  old  one,  embracing  sub- 
Public  Schools  v.  Taylor,  30  N.  J.  stantially  the  same  corporators  and 
Eq.  (3  Stew.)  618.  the  same  territory,  would  not  be 

as  Town  of  Mt.  Pleasant  v.  Beck-  deemed,   in  the   absence   of  express 

with,  100  U.  S.  514;   Baader  v.  City  legislative  declaration  otherwise,  to 

of  Cullman,  115  Ala.  539;   Board  of  affect  the  identity  of  the  corporation 

Councilmen  of  Frankfort  v.  Mason,  or   to   relieve   it   from   its   previous 

100  Ky.  48;  Morris  v.  State,  62  Tex.  liabilities. 

728.    See,  also,  chapter  on  legislative  Seward  v.  City  of  Wilmington,  2 

power  over  public  corporations  and  Marv.  (Del.)  189,  42  Atl.  451;  O'Con- 

its  limitations  and  §§  29-31,  post.  nor  v.   City  of  Memphis,   74   Tenn. 

99  Girard  v.  City  of  Philadelphia,  (6  Lea)  730;  Boyd  v.  Chambers,  78 

74  U.  S.   (7  Wall.)   1.  Ky.  140.     See,  however,  Meriwether 

In  Broughton  v.  City  of  Pensacola,  v.  Garrett,  102  U.  S.  472. 

93  U.  S.  266,  the  court  said  that  a  100  Tatum    v.    Tamaroa,    14    Fed. 

change  in  the  charter  of  a  municipal  103. 


52  CORPORATE  LIFE;  EXISTENCE.  §   30 

law.101  And  in  Louisiana  it  is  held  that  public  acts  empow- 
ering incorporated  towns  to  amend  their  charters  do  not 
authorize  them  thereby  to  extend  their  privileges  or  alter  the 
existing  authority  of  the  state  or  parish  over  their  inhabitants.102 
Again  it  is  held  that  a  power  granted  to  municipal  corporations 
to  amend  their  charters  does  not  impliedly  give  additional  rights 
of  taxation.103 

In  a  Pennsylvania  case  the  court  said  that  "to  create  a  charter 
is  to  make  one  which  never  existed  before;  to  renew  one  is 
to  give  vitality  to  one  which*  has  been  forfeited,  or  has  expired ; 
and  to  extend  one  is  to  give  an  existing  charter  more  time  than 
originally  limited."104  The  effect  of  an  amendment  naturally 
increases  or  diminishes  the  powers  of  a  corporation,  either  in  the 
manner  and  time  of  their  exercise,  their  number,  or  the  limits 
within  which  old  powers  may  be  exercised.  Where,  by  an 
amendment,  political  or  governmental  rights,  questions  or  con- 
ditions are  affected,  the  rule  unquestionably  is  that  by  superior 
law  the  amendment  can  be  made  and  the  right  to  do  this  is  un- 
controlled except  by  constitutional  provisions.  If,  however,  the 
property  or  vested  rights  of  third  parties  arising  through  the  ex- 
istence of  a  contract  obligation  or  the  grant  of  a  remedy  are  im- 
paired, lessened  or  destroyed,  the  right  of  amendment  does  not 
exist  so  far  as  it  may  violate  constitutional  provisions  protect- 
ing such  rights.  The  effect  under  such  circumstances  is  closely 
allied  to  that  resulting  from  the  repeal  of  charters  and  the  cases 
are  largely  considered  under  that  section. 

§  30.    Repeal  of  charter. 

The  subject  of  the  amendment  or  change  of  the  organic  act 
creating  a  public  corporation  has  been  briefly  considered  in  the 
preceding  paragraphs,  and  it  can  be  said  that  the  right  to  repeal 
such  organic  act  or  charter  exists  with  the  same  force  and  to  the 
same  extent.105  Some  municipal  corporations,  owing  to  consti- 

101  in  re  Extension  of  Boundaries  i°*  Moers   v.  City  of  Reading,   21 
of  Denver,  18  Colo.  288,  32  Pac.  615.  Pa.   188. 

102  Cook  v.  Dendinger,  38  La.  Ann.  "s  state  v.  City  of  Mobile,  24  Ala. 
261.  701;   State  v.  City  of  Savannah,  R. 

103  Nelson  v.  Town  of  Homer,  48  M.  Charlt.   (Ga.)   250;   Smith  v.  Vil- 
La.  Ann.  258.  lage  of  Adrian,  1  Mich.  495;  Lynch 

v.  Lafland,  44  Tenn.  (4  Cold.)   96. 


§  30 


CREATION    AND    DISSOLUTION. 


53 


tutional  provision  however  cannot  be  arbitrarily  deprived  of 
their  charters,  but  in  the  absence  of  such  the  above  rule  is  gen- 
eral. A  repeal  of  the  charter  or  particular  provisions  may  be 
effected  through  the  passage  of  legislation  operating  in  express 
terms,106  or  again,  as  in  the  case  of  an  amendment  to  the  charter 
of  a  public  corporation,  the  repeal  may  be  effected  through  the 
application  of  the  doctrine  of  implication.107  The  courts,  how- 
ever, do  not  favor  the  repeal  of  existing  laws  and  charters  by 


ice  people  v.  Bagley,  85  Gal.  343. 
Through  the  incorporation  of  a  mu- 
nicipality under  the  Statutes  of  Cal- 
ifornia of  1883,  p.  93,  the  old  char- 
ter is  superseded  or  repealed. 

Southport  v.  Ogden,  23  Conn.  128; 
Brackett  v.  People,  72  111.  593;  Ha- 
gerstown  v.  Dechert,  32  Md.  369. 

Tierney  v.  Dodge,  9  Minn.  166 
(Gil.  9).  A  provision  in  the  gen- 
eral law  is  repealed  through  the 
passage  of  a  charter  for  a  munici- 
pality controlling  the  same  subject- 
matter,  where  the  intention  of  the 
legislature  to  that  effect  is  clearly 
expressed. 

Harris  v.  City  of  Water  Valley, 
78  Miss.  659,  29  So.  401;  City  of  St. 
Louis  v.  Life  Ass'n  of  America,  53 
Mo.  466.  As  contrary  to  the  rule 
see  State  v.  Branin,  23  N.  J.  Law 
(3  Zab.)  484,  and  State  v.  Clarke, 
25  N.  J.  Law  (1  Dutch.)  54. 

A  few  early  New  York  cases  hold 
that  the  passage  of  general  statutes 
imposing  penalties  for  specific  acts 
does  not  necessarily  operate  as  a 
repeal  of  a  municipal  ordinance.  In 
fixing  penalties  for  the  same  act  un- 
less irreconcilably  inconsistent,  both 
may  stand  together.  City  of  New 
York  v.  Hyatt,  3  E.  D.  Smith  (N. 
Y.)  156;  Russ  v.  City  of  New  York, 
12  N.  Y.  Leg.  Obs.  38;  People  v. 
Daley,  37  Hun  (N.  Y.)  461. 

In  Trustees  of  Erie  Academy  v. 
City  of  Erie,  31  Pa.  515,  it  is  held 
that  a  change  in  the  form  of  gov- 


ernment of  a  public  corporation  does 
not    necessarily    abrogate    existing 
laws  passed  by  such  corporation. 
Tripp   v.  City  of  Yankton,   10   S. 

D.  516,  74  N.  W.  447.     A  city  fail- 
ing to  organize  under  laws  of  South 
Dakota  of  1890,  c.  37,  still  retains 
its  special  charter  theretofore  grant- 
ed. 

Burk  v.  State,  73  Tenn.  (5  Lea) 
349.  Where  a  town  organizes  as  a 
corporation  under  the  general  law, 
and  subsequently  is  granted  a  spe- 
cial charter,  upon  its  repeal  it  is  no 
longer  an  "incorporated"  town. 

Somo  Lumber  Co.  v.  Lincoln  Coun- 
ty, 110  Wis.  286,  85  N.  W.  1023. 

IDT  Martin  v.  Board  of  Election 
Com'rs  of  San  Francisco,  126  Cal. 
404;  Braman  v.  City  of  New  Lon- 
don, 74  Conn.  695,  51  Atl.  1082; 
Horn  v.  State  (Ga.)  40  S.  E.  297; 
Mattox  v.  State,  115  Ga.  212,  41  S. 

E.  709;  Guild  v.  City  of  Chicago,  82 
111.  472;  Allen  v.  People,  84  111.  502; 
Crook  v.  People,  106  111.  237;  Kelly 
v.  Gahn,  112  111.  23;  State  v.  Harris, 
10  Iowa,  441.    Contra,  City  of  Coving- 
ton  v.  District  of  Highlands,  24  Ky. 
L.   R.   433,   68   S.  W.    669;    Camp  v. 
City   of  Minneapolis,   33   Minn.  461. 
A    special     act     consolidating    two 
cities  held  not  to  extend  the  ordi- 
nances  of  each  city   over  the  con- 
solidated city,  but  to   confine  their 
operation  within  their  former  terri- 
torial  limits   until   changed   by  the 
new   city   council.     State   Board   of 


54  CORPORATE  LIFE;  EXISTENCE.  §   3! 

implication  and  the  authorities  hold  without  substantial  dissent 
that  unless  the  intention  of  tHe  legislature  to  repeal  a  charter  or 
one  of  its  provisions  is  clearly  shown  by  all  the  circumstances 
and  conditions  attendant  upon  the  legislation,  a  repeal  by  im- 
plication will  not  be  allowed.108 

In  Washington  an  act  was  passed  in  1893,  providing  for  the 
reincorporation  of  all  cities  and  towns  which  had  maintained  or- 
ganized governments  under  the  void  law  of  March  27,  1890. 
This  law  was  held  valid  because,  as  was  said,  "it  does  not  seek  to 
legalize  void  incorporations  but  to  legislate  as  to  existing  con- 
stituted bodies  maintaining  the  character  of  municipal  corpora- 
tions under  claim  of  authority."109 

§  31.    Effect  of  repeal. 

In  Tennessee  the  city  of  Memphis  and  other  cities  were  abol- 
ished by  legislative  enactment,  and  taxing  districts,  public  quasi 
corporations,  were  established  with  most  of  the  powers  of  the 
dissolved  municipal  corporations.  Creditors  brought  suit  to  en- 
force their  claims  and  the  court  held  that  these  taxing  districts 
were  in  practical  effect  municipal  corporations  and  as  such  they 
had  both  the  liabilities  and  the  rights  of  the  municipal  corpora- 
tions they  were  organized  to  supersede.110 

Education  v.  City   of  Aberdeen,   56  Buford  v.  State,  72  Tex.  182;  Har- 

Miss.  518.  ness  v.  State,  76  Tex.  566. 

The  express   repeal   of   a  charter  ios  Smith,   Mun.    Corp.    §    99,   and 

does  not  revive  an  original  charter  many    cases    there    cited;     Cooley, 

but  destroys  the  corporate  existence  Const.  Lim.   183;    People  v.   Clunie, 

of  the  village.     State  v.  Village  of  70  Cal.  504;  McGarty  v.  Deming,  51 

Reads,  76  Minn.  69,  78  N.  W.  883.  Conn.  422;  City  of  Griffin  v.  Inman, 

In  North  Carolina  the  same  doc-  57  Ga.  370;   City  of  East  St.  Louis 

trine  is  held.    Lilly  v.  Taylor,  88  N.  v.    Maxwell,    99    111.    439;    Bond    v. 

C.  489.     Jersey  City  v.  Jersey  City  Hiestand,  20  La.  Ann.  139;   City  of 

&  B.  R.  Co.,  20  N.  J.  Eq.   (5  C.  E.  Cumberland    v.    Magruder,    34    Md. 

Green)    360;    Erie  v.  Bootz,   72  Pa.  381;   Fish  v.  Branin,  23  N.  J.  Law 

196;  McFate's  Appeal,  105  Pa.  323.  (3  Zab.)   484.     See,  also,  cases  cited 

As  to  organization  into  taxing  dis-  in  §  28. 

tricts,  under  Tennessee  Code,  §  1667,  109  Laws  1893,  c.  80;  Town  of  Med- 

of   towns   or   cities   whose   charters  ical   Lake   v.    Smith,   7   Wash.    195; 

have   been   repealed,    see   Pepper   v.  Town  of  Medical  Lake  v.  Landis,  7 

Smith,  83  Tenn.  (15  Lea)  551;  Ruohs  Wash.  615;  City  of  Pullman  v.  Hun- 

v.  Town  of  Athens,  91  Tenn.  20,  18  gate,  8  Wash.  519;   State  v.  City  of 

S.  W.  400;  O'Connor  v.  City  of  Mem-  Centralia,   8  Wash.  659. 

phis,  74  Tenn.  (6  Lea)   730.  no  uhl  v.  Commissioners  of  Tax- 


§   31  CREATION    AND    DISSOLUTION.  55 

In  Alabama  the  state  legislature  dissolved  the  city  of  Mobile 
and  created  the  corporation  of  the  Port  of  Mobile.  This  in- 
cluded substantially  the  same  area  and  population  as  the  city 
which  it  superseded.  The  port  was  vested  with  all  the  property 
of  the  city  and  the  act  of  incorporation  followed  immediately  the 
act  of  dissolution.  Creditors  of  the  city  brought  suit  against 
the  port  and  in  deciding  that  the  port  was  liable  the  supreme 
court  of  the  United  States  said:  "Where  the  legislature  of  a 
state  has  given  a  local  community,  living  within  designated 
boundaries,  a  municipal  organization,  and  by  a  subsequent  act 
or  series  of  acts,  repeals  its  charter  and  dissolves  the  corpora- 
tion and  incorporates  substantially  the  same  people  as  a  munic- 
ipal body  under  a  new  name  for  the  same  general  purpose,  and 
the  general  mass  of  the  taxable  property  of  the  old  corporation 
is  included  within  the  limits  of  the  new,  and  the  property  of 
the  old  corporation  used  for  public  purposes  is  transferred  with- 
out consideration  to  the  new  corporation  for  the  same  public 
uses,  the  latter  *  *  *  is  the  successor  of  the  former  and 
liable  for  its  debts;  and  if  any  part  of  the  creditors  of  the  old 
corporation  are  left  without  provision  for  the  payment  of  their 
claims,  they  can  enforce  satisfaction  out  of  the  new."111  How- 
ing  Dist.,  74  Tenn.  (6  Lea)  610;  the  new  charter  and  different  officers 
Lea  v.  State,  78  Tenn.  (10  Lea)  478;  administer  its  affairs;  and  in  the 
State  v.  Taxing  Dist.,  84  Tenn.  (16  absence  of  express  provision  for 
Lea)  240.  As  emphasizing  certain  their  payment  otherwise,  it  will  also 
phases  of  the  litigation,  the  result  be  presumed  in  such  case  that  the 
of  such  legislation,  see  Meriwether  legislature  intended  that  the  liabil- 
v.  Garrett,  102  U.  S.  472.  ities  as  well  as  the  rights  of  prop- 

in  Port  of  Mobile  v.  Watson,  116  erty  of  the  corporation  in  its  old 
U.  S.  289.  In  Broughton  v.  City  of  form  should  accompany  the  corpora- 
Pensacola,  93  U.  S.  266,  it  was  said  tion  in  its  re-organization."  In  O'Con- 
by  Mr.  Justice  Field  that  "When  a  nor  v.  City  of  Memphis,  74  Tenn.  (6 
new  form  is  given  to  an  old  munici-  Lea)  730,  the  supreme  court  of  Ten- 
pal  corporation,  or  such  a  corpora-  nessee  held  that  "neither  the  repeal 
tion  is  reorganized  under  a  new  of  the  charter  of  a  municipal  cor- 
charter,  taking  in  Its  new  organiza-  poration,  nor  a  change  of  its  name, 
tion  the  place  of  the  old  one,  em-  nor  an  increase  or  diminution  of 
bracing  substantially  the  same  cor-  its  territory  or  population,  nor  a 
porators  and  the  same  territory,  it  change  in  its  mode  of  government, 
will  be  presumed  that  the  legislature  nor  all  of  these  things  combined, 
intended  a  continued  existence  of  will  destroy  the  identity,  continuity 
the  same  corporation,  although  dif-  or  succession  of  the  corporation  if 
ferent  powers  are  possessed  under  the  people  and  territory  reincor- 


56  CORPORATE  LIFE;  EXISTENCE.  §   31 

ever  clearly  it  is  established  that  the  legislature  has  the  right 
to  alter,  amend  or  repeal  the  charter  of  a  public  corporation  or 
pass  legislation  affecting  the  political  rights  of  its  citizens  ex- 
cept as  limited  by  constitutional  provisions,  there  is  grave  doubt 
as  to  its  right  to  deprive  the  people  residing  within  certain  ter- 
ritorial limits  of  property  or  property  rights  which  may  have 
been  acquired  by  them  through  corporate  organization.112  Like 
results,  though  in  a  varying  degree,  are  affected  through  the 
amendment  or  repeal  of  the  charter  of  a  public  corporation. 
Where  such  action  deals  with  political  rights  or  conditions,  as 
already  stated,  it  is  within  the  power  of  the  legislature  or  of  the 
sovereign  to  deal  arbitrarily  and  alter,  amend  or  repeal  at  pleas- 
ure. The  grant  of  charter  rights  usually,  however,  not  only  con- 
fers political  and  governmental  powers,  but  in  some  degree  or  in 
some  respect  may  operate,  directly  or  indirectly,  as  the  grant  of 
a  property,  a  vested  or  a  contract  right  to  third  persons.  In 
such  cases  the  courts  have  held  almost  without  dissent  that 
where  such  rights  are  impaired  or  destroyed,  the  legislation  in 
question  is  void  as  violating  those  provisions  of  the  Federal  and 
state  constitutions  protecting  contract  obligations  and  property 
or  vested  rights.  As  said  in  the  Tennessee  case:113  "Neither  the 
repeal  of  the  charter  of  a  municipal  corporation  nor  a  change 
of  its  name  nor  an  increase  or  diminution  of  its  territory  or 
population  nor  a  change  in  its  mode  of  government  nor  all  these 
combined  will  destroy  the  identity,  continuity  or  succession  of 
the  corporation,  if  the  people  and  territory  reincorporated  con- 
stitute an  integral  part  of  the  corporation  abolished."114 

porated  constituted  an  integral  part  Mich.  228;  City  of  New  York  v.  Sec- 
of  the  corporation  abolished.  *  *  *  ond  Ave.  R.  Co.,  32  N.  Y.  261;  Peo- 
The  corporators  and  the  territory  pie  v.  O'Brien,  111  N.  Y.  1;  Town 
are  the  essential  constituents  of  the  of  Montpelier  v.  Town  of  East  Mont- 
corporation  and  rights  and  liabili-  pelier,  29  Vt.  12;  Dillon,  Mun.  Corp. 
ties  naturally  adhere  to  them."  (4th  Ed.)  §  68a. 

112  Terrett  v.  Taylor,  9  Cranch  (U. 

us  0  Connor  v.   City  of  Memphis, 
S.)   43;   Trustees  of  Dartmouth  Col- 

,TT   a  .     74  Tenn.   (6  Lea)    730. 
lege  v.  Woodward,  4  Wheat.  (U.  S.) 

618,    694;    Smith    v.    Morse,    2    Cal.  "*  Girard  v.  City  of  Philadelphia, 

524;    Grogan  v.   City   of   San   Fran-  74  U.  S.  (7  Wall.)  1;  Morgan  v.  City 

Cisco,  18  Cal.  590;   Richland  County  &  Town  of  Beloit,  74  U.  S.  (7  Wall.) 

v.  Lawrence  County,  12  111.  1;   Peo-  613;   Butz  v.  City  of  Muscatine,  75 

pie  v.  Hurlbut,  24  Mich.  44;   People  U.  S.   (8  Wall.)   575;   Curran  v.  Ar- 

v.   Common   Council   of   Detroit,   28  kansas,  15  How.   (U.  S.)   312;  Lara- 


§  31 


CREATION    AND    DISSOLUTION. 


57 


The  power  of  taxation  existing  when  bonds  are  issued  by  a 
municipal  corporation  as  duly  authorized,  and  which  is  the  only 
resource  for  their  payment,  is  considered  such  a  contract  obliga- 
tion, and  any  law  which  withdraws  or  limits  this  taxing  power 
and  leaves  no  adequate  means  for  payment  is  null  and  void  as 
violating  the  principle  stated  above.115  The  repeal  of  a  charter 


mie  County  Com'rs  v.  Albany  Coun- 
ty Com'rs,  92  U.  S.  307;  Broughton 
v.  City  of  Pensacola,  93  U.  S.  266; 
Town  of  Mt.  Pleasant  v.  Beckwith, 
100  U.  S.  514. 

Port  of  Mobile  v.  Watson,  116  U. 
S.  289.  "The  laws  which  establish 
local  municipal  corporations  cannot 
be  altered  or  repealed  so  as  to  in- 
vade the  constitutional  rights  of 
creditors.  So  far  as  such  corpora- 
tions are  invested  with  subordinate 
legislative  powers  for  local  purposes, 
they  are  the  mere  instrumentalities 
of  the  states  for  the  convenient  ad- 
ministration of  their  affairs  and  are 
subject  to  legislative  control.  But 
when  empowered  to  take  stock  in  or 
otherwise  aid  a  railroad  company 
and  they  issue  their  bonds  in  pay- 
ment of  the  stock  taken  or  to  carry 
out  any  other  authorized  contract  in 
aid  of  the  railroad  company,  they 
are  to  that  extent  to  be  deemed 
private  corporations  and  their  obli- 
gations are  secured  by  all  the  guar- 
antees which  protect  the  engage- 
ments of  private  individuals.  There- 
fore, the  remedies  for  the  enforce- 
ment of  such  obligations  assumed  by 
a  municipal  corporation  which  ex- 
isted when  the  contract  was  made 
must  be  left  unimpaired  by  the  leg- 
islature or  if  they  are  changed  a 
substantial  equivalent  must  be  pro- 
vided." 

U.  S.  v.  Port  of  Mobile,  12  Fed. 
768;  Amy  v.  City  of  Selma,  77  Ala. 
103;  New  Orleans,  M.  &  C.  R.  Co. 
v.  City  of  New  Orleans,  26  La.  Ann. 


478;  Coulter  v.  Robertson,  24  Miss. 
278;  Blake  v.  Portsmouth  &  C.  R. 
Co.,  39  N.  H.  435;  Broadfoot  v.  City 
of  Fayetteville,  124  N.  C.  478;  Peo- 
ple v.  Morris,  13  Wend.  (N.  Y.)  325. 
See,  also,  note  in  2  Mun.  Corp.  Cas. 
540. 

us  Von  Hoffman  v.  City  of  Quincy, 
71  U.  S.  (4' Wall.)  535;  City  of  Ga- 
lena v.  Amy,  72  U.  S.  (5  Wall.)  705; 
Board  of  Liquidation  v.  McComb,  92 
U.  S.  531;  Edwards  v.  Kearzey,  96 
U.  S.  595. 

Louisiana  v.  City  of  New  Orleans, 
102  U.  S.  203.  "The  obligation  of 
a  contract  in  the  constitutional 
sense  is  the  means  provided  by  law 
by  which  it  can  be  enforced;  by 
which  the  parties  can  be  obliged  to 
perform  it.  Whatever  legislation 
lessens  the  efficacy  of  these  means, 
impairs  the  obligation.  If  it  tends 
to  postpone  or  retard  the  enforce- 
ment of  the  contract,  the  obligation 
of  the  latter  is  to  that  extent  weak- 
ened; The  Latin  proverb  Qui  cito 
dat  bis  dat — He  who  gives  quickly 
gives  twice  has  its  counterpart  in 
a  maxim  equally  sound,  Qui  serius 
solvit,  minus  solvit, — He  who  pays 
too  late  pays  less.  Any  authorization 
of  the  postponement  of  payment  or 
of  means  by  which  such  postpone- 
ment may  be  effected  is  in  conflict 
with  the  constitutional  inhibition." 

Louisiana  v.  Pilsbury,  105  U.  S. 
278;  Rails  County  Court  T.  U.  S.,  105 
U.  S.  733;  Louisiana  v.  City  of  New 
Orleans,  109  U.  S.  285;  Louisiana  v. 
Police  Jury  of  St.  Martin's  Parish, 


58  CORPORATE  LIFE;  EXISTENCE.  §   32 

and  reincorporation,  either  under  general  laws  or  a  new  charter, 
does  not  destroy  the  rights  of  the  corporation  to  collect  taxes  or 
debts  due  it  arising  under  the  provisions  of  the  old  organiza- 
tion,116 and,  as  has  been  seen,  it  does  not  cancel  old  obligations. 

§  32.    Corporate  existence,  and  the  doctrine  of  collateral  attack. 

A  public  corporation  is  created  by  direct  act  of  the  sovereign 
or  indirectly  through  a  delegated  body,  by  the  granting  of  a 
charter,  which  is  its  written  authority  to  act  as  a  governmental 
agent,  and  exercise  and  perform  the  appurtenant  powers  and 
duties.  The  corporation  may  be  organized  under  laws  subse- 
quently declared  unconstitutional  or  void,  or  the  formal  steps 
in  the  organization  may  be  imperfectly  or  irregularly  taken,  the 
condition  in  either  case  raising  a  doubt  as  to  the  legal  existence 
of  the  corporation,  this  doubt  with  an  adverse  decision  upon  the 
question  being  resolved  into  a  certainty.  The  corporation  mean- 
while has  performed  its  duties  and  exercised  its  powers,  it  has 
levied  and  collected  taxes,  constructed  public  improvements,  in- 
curred debts  and  liabilities,  and  entered  into  contract  relations 
with  third  parties  who  have  acted  in  good  faith  and  upon  the 
assumption  that  the  corporation  possessed  the  necessary  powers. 
The  legality  of  the  existence  of  the  corporation  or  its  right  to 
perform  these  duties  and  exercise  these  powers  is  called  in  ques- 
tion. What  is  the  effect  upon  past  acts  and  the  relations  which 
exist  as  their  result?  And,  again,  the  proposition  may  present 
itself, — in  what  manner,  by  whom,  and  at  what  time  can  the 
question  of  legal  right  be  raised?  The  rule  of  law  invariably  is 
that  the  state  alone  can  question  the  right  of  the  public  corpora- 
tion to  exist  and  perform  its  duties  and  exercise  its  rights,  and 

111  U.  S.  716;  Seibert  v.  Lewis,  122  v.  City  of  Fayetteville,  124  N.  C. 
U.  S.  284;  Martin  v.  Somerville  478;  Basset  v.  City  of  El  Paso 
Water-Power  Co.,  3  Wall.  Jr.  206,  (Tex.)  30  S.  W.  893;  State  v.  Corn- 
Fed.  Gas.  No.  9,165;  Fazende  v.  City  mon  Council  of  Madison,  15  WIs. 
of  Houston,  34  Fed.  95;  Edwards  v.  33;  Terry  v.  Wisconsin  M.  &  F.  Ins. 
Williamson,  70  Ala.  145;  Amy  v.  Co.  Bank,  18  Wis.  87;  Smith  v.  City 
City  of  Selma,  77  Ala.  103;  State  v.  of  Appleton,  19  Wis.  468. 
City  of  New  Orleans,  37  La.  Ann.  us  Milster  v.  City  of  Spartanburg 
13.  The  principle  also  applies  to  (S.  C.)  46  S.  E.  539;  Bennison  v. 
the  amendment  of  a  state  constitu-  City  of  Galveston  (Tex.  Civ.  App.) 
tion.  Munday  v.  Assessors  of  Rah-  78  S.  W.  1089. 
way,  43  N.  J.  Law,  338;  Broadfoot 


§  32 


CREATION    AND    DISSOLUTION. 


59 


then  in  a  proceeding  brought  for  that  purpose.  And  also  that 
the  question  of  legal  corporate  existence  cannot  be  raised  in  a 
case  or  proceeding  as  collateral  to  the  main  issue  or  through  col- 
lateral attack.117  This  doctrine  is  adopted  to  protect  the  rights 
of  innocent  parties118  and  to  enable  the  corporation,  however 


"T  Rails  County  v.  Douglass,  105 
U.  S.  728;  Shapleigh  v.  San  Angelo, 
167  U.  S.  646;  Austrian  v.  Guy,  21 
Fed.  500;  National  L.  Ins.  Co.  of 
Montpelier  v.  City  of  Huron,  62  Fed. 
778;  Harris  v.  Nesbit,  24  Ala.  398; 
Ex  parte  Moore,  62  Ala.  471;  Town 
of  Searcy  v.  Yarnell,  47  Ark.  269; 
State  v.  North,  42  Conn.  79;  In  re 
Allison,  13  Colo.  525;  State  v.  Town 
of  Winter  Park,  25  Fla.  371;  Ket- 
tering  v.  Jacksonville,  50  111.  39; 
Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v. 
Dunn,  61  111.  App.  '227;  Town  of 
Geneva  v.  Cole,  61  111.  397;  Alder- 
man v.  School  Directors,  91  111.  179; 
People  v.  Nelson,  133  111.  565,  27  N. 
E.  217;  School  Directors  of  Union 
School  Dist.  v.  School  Directors  of 
New  Union  School  Dist.,  135  111.  464, 
28  N.  E.  49;  Cicero  v.  Williamson, 
91  Ind.  541;  Huff  v.  City  of  Lafey- 
ette,  108  Ind.  14.  Contra,  Forsythe 
v.  City  of  Hammond,  142  Ind.  505; 
State  v.  Independent  School  Dist., 
44  Iowa,  227;  State  v.  Pawnee  Coun- 
ty Com'rs,  12  Kan.  426;  People  v. 
Maynard,  15  Mich.  463;  Kayser  v. 
Bremen,  16  Mo.  88;  City  of  Tren- 
ton v.  Devorss,  70  Mo.  App.  8;  St. 
Paul  Gas  Light  Co.  v.  Village  of 
Sandstone,  73  Minn.  225;  Coler  v. 
Dwight  School  Tp.,  3  N.  D.  249,  with 
many  authorities  cited  and  collated; 
State  v.  Brown,  31  N.  J.  Law,  355; 
Borough  of  Glen  Ridge  v.  Stout,  58 
N.  J.  Law,  598,  33  Atl.  858;  State 
v.  Whitney,  41  Neb.  613;  Coast  Co. 
v.  Borough  of  Spring  Lake,  56  N.  J. 
Eq.  615,  36  Atl.  21;  State  v.  Central 
Pac.  R.,  21  Nev.  75,  25  Pac.  296; 


City  of  El  Paso  v.  Ruckman,  92  Tex. 
86,  46  S.  W.  25;  Foster  v.  Hare,  26 
Tex.  Civ.  App.  177,  62  S.  W.  541; 
Angel  v.  Town  of  Spring  City  (Tenn. 
Ch.  App.)  53  S.  W.  191,  holds  follow- 
ing the  Tennessee  cases  contrary  to 
the  general  doctrine:  Pratt  v.  Lin- 
coln County,  61  Wis.  62;  .Town  of 
Spooner  v.  Town  of  Minong,  104 
Wis.  425.  See,  also,  Stuart  v.  School 
Dist.  of  Kalamazoo,  30  Mich.  69, 
where  the  court  says:  "If  every 
municipality  must  be  subject  to  be 
called  into  court  at  any  time  to  de- 
fend its  original  organization  and 
its  franchises  at  the  will  of  any  dis- 
satisfied citizen  who  may  feel  dis- 
posed to  question  them,  and  subject 
to  dissolution,  perhaps,  or  to  be 
crippled  in  authority  and  powers  if 
defects  appear,  however  complete 
and  formal  may  have  been  the  recog- 
nition of  its  rights  and  privileges, 
on  the  part  alike  of  the  state  and 
its  citizens,  it  may  very  justly  be 
said  that  few  of  our  municipalities 
can  be  entirely  certain  of  the  ground 
they  stand  upon,  and  that  any  single 
person,  however  honastly  inclined, 
if  disposed  to  be  litigious,  or  over- 
technical  and  precise,  may  have  it 
in  his  power  in  many  cases  to  cause 
infinite  trouble,  embarrassment,  and 
mischief."  See,  also,  many  cases 
cited  in  McQuillin,  Mun.  Ord.  p.  546, 
note  86. 

us  Ashley  v.  Presque  Isle  County 
Sup'rs,  60  Fed.  55. 

Speer  v.  Kearney  County  Com'rs, 
88  Fed.  749.  In  this  case  the  Court 
said:  "Moreover  we  are  unable  to 


60 


CORPORATE  LIFE;  EXISTENCE. 


§   32 


irregularly  formed,  to  compel  obedience  and  enforce  its  rights.119 
A  public  corporation  exercises  affirmatively  certain  functions, 
or  it  may  enter  into  contract  or  other  obligations.  It  is  with 


yield  our  assent  to  the  broad  prop- 
osition that  there  can  be  no  de  facto 
corporation  under  an  unconstitu- 
tional law.  Such  a  law  passes  the 
scrutiny  and  receives  the  approval 
of  the  attorney  general  of  the  law- 
yers who  compose  the  judiciary  com- 
mittees of  the  state  legislative  bod- 
ies, of  the  legislature,  and  of  the 
governor  before  it  reaches  the  stat- 
ute book.  When  it  is  spread  upon 
that  book  it  comes  to  the  people  of 
a  state  with  the  presumption  of  val- 
idity. Courts  declare  its  invalidity 
with  hesitation  and  after  long  de- 
liberation and  much  consideration 
even  when  its  violation  of  the  or- 
ganic law  is  clear  and  never  when 
it  is  doubtful.  Until  the  judiciary 
has  declared  it  void,  men  act  and 
contract,  and  they  ought  to  act  and 
contract,  on  the  presumption  that 
it  is  valid;  and  where,  before  such 
a  declaration  is  made,  their  acts  and 
contracts  have  affected  public  inter- 
ests or  private  rights  they  must  be 
treated  as  valid  and  lawful.  The 
acts  of  a  de  facto  corporation  or 
officer  under  an  unconstitutional  law 
before  its  invalidity  is  challenged 
*  *  *  cannot  be  avoided,  as  against 
the  interests  of  the  public  or  of 
third  parties  who  have  acted  or  in- 
vested in  good  faith  in  reliance  upon 
their  validity,  by  any  ex  post  facto 
declaration  or  decision  that  the  law 
under  which  they  acted  was  void." 

State  v.  City  of  Des  Moines,  96 
Iowa,  521,  65  N.  W.  818;  People  v. 
Maynard,  15  Mich.  463;  State  v.  Rich, 
20  Mo.  393;  Town  of  Winneconne  v. 
Village  of  Winneconne,  11  Wis.  10. 

As   to   rights   of  bondholders   see 


Ashley  v.  Presque  Isle  County 
Supr's,  60  Fed.  55;  Coler  v.  Dwight 
School  Tp.,  3  N.  D.  249,  55  N.  W. 
587;  Brown  v.  Bon  Homme,  1  S.  D. 
216. 

See  Ruohs  v.  Athens,  91  Tenn. 
20,  to  the  contrary,  but  in  accord 
with  Tennessee  cases  on  the  doc- 
trine of  collateral  attack. 

n»  City  of  Carlisle  v.  Blamire,  8 
East,  487. 

In  the  levy  of  taxes.  Presque 
Isle  County  Sup'rs  v.  Thompson,  61 
Fed.  914;  Dean  v.  Davis,  51  Gal. 
406;  Trumbo  v.  People,  75  111.  561; 
People  v.  Newberry's  Trustees,  87 
111.  41;  School  Dist.  No.  49  of  Paw- 
nee County  v.  School  Dist.  No.  21, 
32  Kan.  123;  Kansas  Town  &  Land 
Co.  v.  City  of  Kensington,  6  Kan. 
App.  247;  Chicago,  St.  L.  &  N.  O. 
R.  Co.  v.  Town  of  Kent  wood,  49  'La. 
Ann.  931;  Mills  v.  Tp.  of  Richland, 
72  Mich.  100,  40  N.  W.  183;  Kewee- 
naw  Ass'n  v.  School  Dist.  of  Han- 
cock Tp.,  98  Mich.  437;  State  v. 
Mineral  Land  Co.,  84  Mo.  App.  32; 
State  v.  Central  Pac.  R.  Co.,  9  Nev. 
79;  Riverton  &  P.  Water  Company 
v.  Haig,  58  N.  J.  Law,  295;  Rellstab 
v.  Borough  of  Belmar,  58  N.  J.  Law, 
489;  Gardner  v.  Christian,  70  Hun, 
547,  24  N.  Y.  Supp.  339;  Troutman 
v.  McClesky,  7  Tex.  Civ.  App.  561; 
McCrary  v.  City  of  Comanche  (Tex. 
Civ.  App.)  34  S.  W.  679;  Eustis  v. 
City  of  Henrietta  (Tex.  Civ.  App.) 
37  S.  W.  632;  McMickle  v.  Hardin, 
25  Tex.  Civ.  App.  222,  61  S.  W.  322; 
Kuhn  v.  City  of  Port  Townsend,  12 
Wash.  605;  Frace  v.  City  of  Ta- 
coma,  16  Wash.  69;  Hornbrook  v. 
Town  of  Elm  Grove,  40  W.  Va.  543. 


§  32 


CREATION    AND.    DISSOLUTION. 


61 


regret  the  statement  is  made  that  too  often  public  corporations 
endeavor  to  avoid  or  defeat  an  honest  debt  or  a  legal  obligation 
by  the  claim  of  no  authority  or  power.  In  such  cases  the  Fed- 
eral courts  have  maintained  vigorously  the  doctrine  of  col- 
lateral attack  and  have  repeatedly  held,  that  where  there  is  a 
doubt  as  to  the  legality  of  the  creation  of  the  corporation  which 
can  only  be  raised  by  the  state,  if  the  state  fails  to  act  until  after 
debts  are  created  and  liabilities  incurred,  those  obligations  are 
not  impaired  or  destroyed  by  a  subsequent  dissolution  of  the 
corporation,120  or  the  declaration  by  a  judicial  tribunal  in  a 
proceeding  brought  for  that  purpose  that  the  corporation  was 
originally  without  legal  authority.  This  doctrine  of  collateral 
attacks  applies  also  to  official  acts  of  officers  of  public  corpora- 
tions, and  it  is  the  rule  that  in  disputes  between  private  parties 
the  validity  of  a  public  corporation  acting  under  forms  of  law 
cannot  be  called  in  question  where  its  corporate  existence  is  un- 
challenged by  the  state.121 


The  collection  of  fines.  Hamil- 
ton v.  President  &  Trustees  of 
Carthage,  24  111.  22;  Atchison,  T.  & 
S.  F.  R.  Co.  v.  Wilson,  33  Kan.  223; 
Baker  County  v.  Benson,  40  Or.  207, 
66  Pac.  815. 

The  prosecution  of  criminals.  In 
re  Short,  47  Kan.  250;  followed  in 
In  re  Rabbitt,  47  Kan.  382;  In 
re  Williams,  47  Kan.  303;  People  v. 
Smith,  131  Mich.  70,  90  N.  W.  666; 
Inhabitarts  of  Fredericktown  v. 
Fox,  84  Mo.  59;  State  v.  Fuller,  96 
Mo.  165,  9  S.  W.  583;  City  of  Bill- 
ings v.  Dunnaway,  54  Mo.  App.  1; 
City  of  Clarence  v.  Patrick,  54  Mo. 
App.  462;  Town  of  Henderson  v.  Da- 
vis, 106  N.  C.  88. 

The  construction  of  public  im- 
provements. Powell  v.  City  of 
Greensburg,  150  Ind.  148.  Or,  the 
enforcement  of  ordinances  and  the 
administration  of  public  affairs. 
Graham  v.  City  of  Greenville,  67 
Tex.  62. 

120  Shapleigh  v.  City  of  San  An- 
gelo,  167  U.  S.  646.  "The  state  be- 


ing the  creator  of  municipal  corpo- 
rations is  the  proper  party  to  im- 
peach the  validity  of  their  creation. 
If  the  state  acquiesces  in  the  valid- 
ity of  a  municipal  corporation  its 
corporate  existence  cannot  be  col- 
laterally attacked." 

Graham  v.  City  of  Greenville,  67 
Tex.  62. 

121  Union  Nat.  Bank  v.  Matthews, 
98  U.  S.  621;  Miller  v.  Perris  Irr. 
Dist.,  85  Fed.  693;  Mullikin  v.  City 
of  Bloomington,  72  Ind.  161;  State 
v.  Council,  106  Iowa,  731,  77  N.  W. 
474;  Cleveland,  C.,  C.  &  St.  L.  R.  Co. 
v.  Dunn,  63  111.  App.  531;  Menden- 
hall  v.  Burton,  42  Kan.  570,  22  Pac. 
558;  Kirkpatrick  v.  State,  5  Kan. 
673;  Village  of  Arapahoe  v.  Albee, 
24  Neb.  242;  Campbell  v.  Wainright, 
50  N.  J.  Law,  555;  State  v.  Fuller, 
96  Mo.  165;  Stuart  v.  School  Dist. 
of  Kalamazoo,  30  Mich.  69;  Jaquith 
v.  Hale,  31  Mich.  430;  State  v.  Whit- 
ney, 41  Neb.  613,  59  N.  W.  884;  State 
v.  Henderson,  145  Mo.  329,  46  S.  W. 
1076. 


62 


CORPORATE  LIFE;  EXISTENCE. 


§   33 


§  33.    The  dissolution  of  the  corporation  and  its  effects. 

Public  corporations  may  be  dissolved  through  an  act  of  the 
legislature;122  they  may  voluntarily,  under  general  laws,  sur- 
render their  charters;123  again,  under  general  laws,  they  may 
change  their  grade  or  class,  effecting  in  this  manner  a  dissolution 
of  the  old  corporation  ;124  or  the  corporation  may  be  dissolved  as 
the  result  of  a  judgment  of  ouster  in  proceedings  brought  to 
determine  its  rights  to-  corporate  existence.125  The  courts  have 
held  as  negative  propositions  that  a  corporation  will  not  be 
dissolved  by  its  failure  to  elect  officers,126  for  the  misuser  or  non- 
user  of  its  charter  rights,127  or  the  misconduct  of  its  officers. 

The  debts  and  legal  obligations  of  a  public  corporation  can- 


122  Town  of  Cicero  v.  City  of  Chi- 
cago, 182  111.  301r  State  v.   Hamil- 
ton, 40  Kan.  323,  19  Pac.  723;  Kan- 
sas  Town   &   Land   Co.   v.    City   of 
Smith    Center,    6    Kan.    App.    252; 
Woods  v.  Henry,  55  Mo.  560;   State 
v.  Honerud,   66   Minn.   32;    State  v. 
Crow  Wing  County  Ccm'rs,  66  Minn. 
519;  Town  of  Watervliet  v.  Town  of 
Colonie,  27  App.  Div.  394,  50  N.  Y. 
Supp.  487;   James  County  v.  Hamil- 
ton County,  89  Tenn.  237,  14  S.  W. 
601. 

123  state  v.  Husband,  26  Ind.  308; 
Fowler    v.    Vandal,    84    Minn.    392; 
Blauvelt  v.  Village  of  Nyack,  9  Hun 
(N.    Y.)    153;     Com.    v.    Judges    of 
Quarter  Sessions,  8  Pa.  391. 

12*  In  re  Extension  of  Boundaries 
of  Denver,  18  Colo.  288,  32  Pac.  615; 
Wiedwald  v.  Dodson,  95  Cal.  450; 
Mintzer  v.  Schilling,  117  Cal.  361, 
49  Pac.  209;  Com.  v.  Rose,  20  Ky. 
L.  R.  1220,  49  S.  W.  29. 

125  Dodge  v.  People,  113  111.  491. 
In  this  case  the  court  says:  "It  is 
proper  to  inquire  what  effect  the 
judgment  (of  ouster)  had  upon  the 
village  itself.  There  is  no  room  for 
doubt  on  this  point.  The  authori- 
ties are  clear  that  its  immediate  ef- 
fect was  to  dissolve  the  corporation, 


whether  it  existed  de  jure  or  de 
facto, — or  in  other  words  its  effect 
was  to  completely  '  extinguish  and 
annihilate  the  artificial  municipal 
body  which  had  theretofore  existed 
by  the  name  of  the  village  of  Fideli- 
ty, together  with  its  rights,  liberties 
and  franchises.  Or  differently  stat- 
ed, its  effect  was  the  immediate 
death  of  the  artificial  being  followed 
by  all  the  consequences  which  the 
law  annexes  to  such  a  death.  As  in 
the  case  of  a  natural  person  its 
death  operated  as  an  absolute  revo- 
cation of  all  power  and  authority  on 
the  part  of  others  to  act  in  its  name 
or  on  its  behalf." 

126  Welch    v.    City    of    Ste.    Gene- 
vieve,  1  Dill.  130,  Fed.  Cas.  No.  17,- 
372;    State   v.   Dunson,   71    Tex.    65, 
9   S.   W.   103;    Buford   v.   State,   72 
Tex.   182;    State  v.  Hoff   (Tex.   Civ. 
App.)  29  S.  W.  672. 

127  Welch   v.    City   of    Ste.    Gene- 
vieve,  1  Dill.  130,  Fed.  Cas.  No.  17,- 
372;   Butler  v.  Walker,  98  Ala.  358, 
13  So.  261;   Swamp  Land  Dist.  No. 
150  v.  Silver,  98  Cal.  51,  32  Pac.  866; 
People  v.  Bancroft,  2  Idaho,  1077,  29 
Pac.  112;   Cain  v.  Brown,  111  Mich. 
657,  70  N.  W.  337;  Largen  v.  State. 
76  Tex.  323. 


§   34  CREATION    AND    DISSOLUTION.  63 

not  be  impaired  or  destroyed  by  a  change  in  the  grade  or  class 
of  a  municipal  organization,  or  through  its  dissolution.128  The 
duty  of  their  payment  or  performance  devolves  upon  the  terri- 
tory succeeding  to  the  old  corporation.  Property  belonging  to 
the  corporation  dissolved  usually  passes  to  and  under  the  con- 
trol of  the  new  organization  embracing  the  identical  territory. 
In  Nevada  it  is  held  that  where  legislation  looking  to  the  dis- 
incorporation  of  a  town  provides  for  the  filing  of  claims  within 
a  certain  time,  its  constitutionality  cannot  be  raised  by  one  not 
having  a  claim.120 

§  34.    Forfeiture  of  charter. 

The  charter  of  a  private  corporation  in  the  proper  action  may 
be  forfeited  by  judicial  decree  for  the  commission  of  acts  by 
the  corporation  contrary  to  the  provisions  of  general  statutes 
or  express  provisions  of  its  charter.  The  act  of  forfeiture  is 
equivalent  to  the  taking  of  corporate  life,  as  without  it,  it  can- 
not legally  exist.  Courts  are  slow  to  inflict  a  penalty  which 
represents  the  extreme  rigor  of  the  law.  As  said  in  a  New  York 
case:130  "Its  infliction  must  rest  upon  grave  cause  and  be  war- 
ranted by  material  misconduct.  *  *  *  The  state  as  prose- 
cutor must  show  on  the  part  of  the  corporation  accused  some 
sin  against  the  law  of  its  being  which  has  produced  or  tends  to 
produce  injury  to  the  public.  The  transgression  must  not  be 
merely  formal  or  incidental,  but  material  and  serious  and  such 

128  Shapleigh  v.   City  of   San  An-  will  not  consider  an  objection  made 
gelo,  l')7  U.  S.  646;   City  of  Uvalde  to  the  constitutionality  of  an  act  of 
v.  Spier,  91  Fed.  594;   Amy  v.  City  the    legislature    by    a    party   whose 
of  Selma,  77  Ala.  103;   Vandriss  v.  rights  it  does  not  affect  and  who  has, 
Hill,  58  Kan.  611;   Overseers  of  the  therefore,   no   interest   in   defeating 
Poor  v.  Sears,  39  Mass.    (22  Pick.)  it.     It  is  only  when  some  person  at- 
122;    Ross    v.    Wimberly,    60    Miss,  tempts  to  resist  its  operation,  and 
345;    Clarke   v.   Reeves   County,    25  calls  in  the  aid  of  the  judicial  pow- 
Tex.   Civ.   App.  463,   61  S.  W.   98^  er  to  pronounce  it  void  as  to  him, 
Little   v.   Union  Tp.  Committee,   40  his  property  or  his  rights,  that  the 
N.  J.  Law,  397;   Shankland  v.  Phil-  objection  to  the  unconstitutionality 
lips,    3    Tenn.    Ch.    556.     See,    also,  of  a  legislative  act  can  be  presented 
cases  cited  in  notes  to  §§  45,  46  and  and  sustained   (Cooley,  Const.  Lim. 
96.  196,  197)." 

129  in    re    Sticknoth's    Estate,     7  130  People   v.   North   River   Sugar 
Nev.  223.  Refining  Co.,  121  N.  Y.  582. 

State  v.  Beck,  25  Nev.  68.    "Courts 


64  CORPORATE  LIFE;  EXISTENCE.  §   35 

as  to  harm  or  menace  the  public  welfare,  for  the  state  does  not 
concern  itself  with  the  quarrels  of  private  litigants;  it  furnishes 
for  them  sufficient  courts  and  remedies,  but  intervenes  as  a  party 
only  where  some  public  interest  requires  its  action.  Corpora- 
tions may  and  often  do  exceed  their  authority  where  only  pri- 
vate rights  are  affected.  When  these  are  adjusted  all  mischief 
ends  and  all  harm  is  averted.  But  where  the  transgression  has 
a  wider  scope  and  threatens  the  welfare  of  the  people,  they  may 
summon  the  offender  to  answer  for  the  abuse  of  its  franchise  or 
the  violation  of  its  corporate  duty."  A  public  corporation,  it 
will  be  remembered,  is  a  governmental  institution  or  agency  and 
created  for  the  sole  purpose  of  carrying  out  some  aim  of  gov- 
ernment resulting  in  the  advantage  and  benefit  of  society.  Be- 
cause of  the  material  and  the  essential  difference  between  a 
public  and  a  private  corporation,  the  courts  generally  hold  in 
this  country,  at  least,  that  the  charter  of  a  public  corporation 
cannot  be  forfeited.  The  government  of  a  particular  agency  of 
the  sovereign  may  change  its  form,  but  under  existing  condi- 
tions and  political  theories,  it  is  legally  impossible  that  a  par- 
ticular district,  however  sparse  or  dense  its  population,  can  ex- 
ist without  some  form  of  government.131  In  England  the  earlier 
cases  held  that  the  charter  of  a  public  corporation,  like  that  of  a 
private,  could  be  forfeited  by  the  sovereign  in  the  proper  pro- 
ceedings.132 The  universal  rule  obtains  that  an  incorporated  town 
or  city  retains  corporate  capacity  until  its  charter  has  been  de- 
clared forfeited  in  a  direct  judicial  proceeding  looking  to  that 
end.  The  forfeiture  of  a  charter  cannot  be  declared  in  a  col- 
lateral proceeding.138 

II.  TERRITORIAL  CHANGES  AND  THEIE  EFFECT. 
§  35.    Boundaries;  their  enlargement. 

A  public  corporation  is  the  organization  of  a  certain  geograph- 
ical district  under  authority  of  law  for  the  purpose,  if  a  public 

isi  Port  of  Mobile  v.  U.  S.,  116  U.  Smith's  Case,  4  Mod.  55;  Rex  v. 
S.  289;  Harris  v.  Nesbit,  24  Ala.  398;  Saunders,  3  East,  119;  Rex  v.  In- 
State  v.  Stevens,  21  Kan.  210;  At-  habitants  of  Kent,  13  East,  220; 
torney  General  v.  City  of  Salem,  Lyme  Regis  v.  Henley,  2  Clark  &  F. 
103  Mass.  138;  Attorney  General  v.  331;  Attorney  General  v.  Shrews- 
City  of  Boston,  123  Mass.  460;  Dil-  bury  Corp.,  6  Beav.  220. 
Ion,  Mun.  Corp.  (4th  Ed.)  §  168.  iss  Harris  v.  Nesbit,  24  Ala.  398; 

132  Rex   v.  Grosvenor,  7  Mod.  198;  Whalin  v.  City  of  Macomb,   76  111. 


§35 


TERRITORIAL  CHANGES. 


65 


or  quasi  public  corporation,  of  acting  as  a  governmental  agent, — 
carrying  out  exclusively  some  one  or  more  of  the  functions  of 
government;  or,  if  a  municipal  corporation,  of  combining  with 
the  above  additional  powers  or  privileges  and  of  legislating  up- 
on matters  more  particularly  affecting  the  conditions  and 
convenience  of  those  residing  within  its  limits.  The  corpora- 
tion in  both  instances  includes,  within  its  jurisdiction  and  con- 
trol, a  certain  geographical  area.  The  fact  that  at  the  time  of 
its  organization  it  includes  or  is  included  within  certain  limits 
does  not  prevent  the  passage  of  future  legislation  enlarging 
boundaries  or  dividing  territory,  or  preclude  annexation  or 
division  under  existing  laws.  To  state  the  principle  more  con- 
cisely, a  public  corporation,  of  whatever  class,  may  have  its 
territorial  limits  under  authority  of  law,  arbitrarily  or  otherwise 
enlarged  or  reduced. 

The  paramount  question,  if  action  is  taken  of  this  character, 
is  that  of  legislative  authority,134  and  the  extent  and  manner  of 


49;  Hornbrook  v.  Town  of  Elm 
Grove,  40  W.  Va.  543.  See,  also, 
cases  cited  §  32,  note  46. 

is*  U.  S.  v.  City  of  Memphis,  97 
U.  S.  284;  Paxson  v.  Holt,  40  Cal. 
466;  People  v.  City  of  Oakland,  92 
Cal.  .611;  People  v.  City  of  Oakland, 
123  Cal.  598;  People  v.  Fleming,  10 
Colo.  553,  16  Pac.  298;  City  of  Jack- 
sonville v.  L'Engle,  20  Fla.  344; 
Saunders  v.  Provisional  Municipali- 
ty of  Pensacola,  24  Fla.  226,  4  So. 
801. 

City  of  Brunswick  v.  Finney,  54 
Ga.  317.  The  authority  for  annexa- 
tion may  be  made  subject  to  the  con- 
dition that  the  people  affected  give 
their  consent. 

City  of  Burlington  v.  Leebrick,  43 
Iowa,  252.  The  constitutional  ob- 
jection held  not  good  that  legislative 
powers  are  conferred  upon  the  cir- 
cuit court  through  Iowa  Code,  §  431, 
providing  that  cities  may  institute 
proceedings  in  the  circuit  court  for 
the  annexation  of  contiguous  terri- 
tory under  certain  conditions. 


And  the  same  is  held  in  Kansas. 
Eskridge  v.  City  of  Emporia,  63 
Kan.  368,  65  Pac.  694. 

Defects  in  annexation  proceed- 
ings held  cured  by  subsequent  legis- 
lation. Edmunds  v.  Gookins,  24 
Ind.  169;  Taylor  v.  City  of  Ft. 
Wayne,  47  Ind.  274. 

The  territory  annexed  should  be 
platted.  Paul  v.  Town  of  Walker- 
ton,  120  Ind.  565,  50  N.  E.  725;  Pres- 
cott  v.  City  of  Chicago,  60  111.  121. 

Village  of  Hyde  Park  v.  City  of 
Chicago,  124  111.  156,  16  N.  E.  222. 
Where  an  act  giving  the  power  to 
extend  the  limits  of  an  incorporated 
city  so  as  to  include  an  adjoining 
incorporated  town  is  held  unconsti- 
tutional, an  election  held  pursuant 
to  such  act  will  not  operate  as  a 
consolidation  of  the  two  towns. 

Town  of  Cicero  v.  City  of  Chicago, 
182  111.  301;  People  v.  Binns,  192  111. 
68;  Pence  v.  City  of  Frankfort,  101 
Ky.  534,  41  S.  W.  1011;  Lewis  v. 
Town  of  Brandenburg,  20  Ky.  L.  R. 
1011,  47  S.  W.  862,  48  S.  W.  978; 


Abb.  Corp.— 5. 


56  CORPORATE  LIFE;  EXISTENCE.  §  35 

such  annexation  is  a  question  solely  within  the  discretion  of  the 
legislature  except  as  restrained  by  constitutional  provisions1" 
with  which  the  courts  cannot  interfere.138 

Other  necessary  acts  and  proceedings.  We  have  for  secondary 
considerations,  provided  authority  exists,  those  which  go  to  a 
determination  of  the  questions  what  territory  can  be  annexed; 
the  formal  proceedings  as  provided  by  law  or  custom,  namely, 
the  preparation  and  filing  of  a  petition  signed  by  qualified  voters 
or  by  property  owners  residing  within  the  limits  of  the  proposed 

Walters  v.  Richardson,  93  Ky.  374;  act  to  define  the  city  limits,"   the 

Shawnee   County  Com'rs  v.  Carter,  word  "define"  not  being  confined  in 

2  Kan.  115;   Atchison  N.  R.  Co.  v.  meaning  to   making  clear  and   cer- 

Maquilkin,  12  Kan.  301.  tain    what   was    ambiguous    before. 

Where  such   authority  applies  to  Norris   v.    Town    of    Smithville,    31 

but  three  cities  in  state,  held  uncon-  Tenn.  (1  Swan)  164;  People  v.  Ma- 

stitutional     as     special     legislation,  bie,  73  Hun,  495,  26  N.  Y.  Supp.  450; 

City  of  Topeka  v.  Gillett,  32  Kan.  People  v.    Town   of   Hempstead,   21 

4?X;  In  re  Hall,  38  Kan.  670,  17  Pac.  App.  Diy.  156,  47  N.  Y.  Supp.  409; 

6<f9;   City  of  Emporia  v.  Smith,  42  Metcalf  v.   State,   49   Ohio   St.   586; 

Kan.  433,  22  Pac.  616;  State  v.  Kan-  Shugars   v.    Williams,    50    Ohio   St. 

sas   City,   50   Kan.   508;    Stewart  v.  297;   State  v.  City  of  Cincinnati,  52 

Adams,  50  Kan.  568;   Succession  of  Ohio  St.  419;  Ladd  v.  City  of  Port- 

Teaulet,  28  La.  Ann.  42.  land,   32  Or.  271;   Baker  County  v. 

City  of  Monroe  v.  Police  Jury  of  Benson,    40    Or.    207,    66    Pac.    815; 

Ouachita  Parish,  47  La.  Ann.  1061.  Smith    v.    McCarthy,    56    Pa.    359; 

Where  the  limits  of  the  proposed  an-  Williams   v.   City    of   Nashville,   89 

nexation  are  determined  by  the  ex-  Tenn.  487,  15  S.  W.  364;  McCallie  v. 

tension  of  a  street,  this  must  be  in  City    of   Chattanooga,   40    Tenn.    (3 

its  original  direction.  Head)  318;  Roby  v.  Sheppard,  42  W. 

The  act  providing  for  the  annex-  Va.  286;  King  County  Com'rs  v.  Da- 

ation  of  Charlestown  to  Boston,  St.  vies,  1  Wash.  290,  24  Pac.  540.     See, 

1854,   c.   433,   held   unconstitutional,  also,  cases  cited  in  note  on  power  of 

Warren  v.  City  of  Charlestown,  68  municipal  corporations  to  annex  ter- 

Mass.  (2  Gray)  84.  ritory,    6   L.   R.   A.    266,    11    L.   R. 

But  Mass.  St.  1873,  cc.  286  and  314,  A.   778,  and   exhaustive  note   in  27 

to  the  same  effect,  held  valid.     Stone  L.  R.  A.  737. 

v.    City    of    Charleston,    114    Mass.        iss  Daly  v.   Morgan,   69   Md.   460; 

214;  Williams  v.  Raynham,  34  Mass.  Opinion    of    Justices,    60    Mass.    (6 

(17  Pick.)   344;  Chandler  v.  City  of  Cush.)    580;    Village  of  Hartington 

Boston,  112  Mass.  200;  Daly  v.  Mor-  v.  Luge,  33  Neb.  623,  50  N.  W.  957. 
gan,  69  Md.  460;  Kansas  City  v.  ise  Madrey  v.  Cox,  73  Tex.  538, 

Stegmiller,   151    Mo.    189;    State   v.  and   cases   cited   in  preceding  note. 

Henderson,  145  Mo.   329;   People  v.  But   see   Fulton   v.   City  of   Daven- 

Bradley,  36  Mich.  447.     A  city  may  port,  17  Iowa,  404;  Cheaney  v.  Hoos- 

be  enlarged  by  an  act  entitled  "an  er,  48  Ky.  (9  B.  Mon.)  330. 


§  36 


TERRITORIAL  CHANGES. 


territory;  the  notice  which  the  law  requires  should  be  given  to 
all  whose  rights  may  be  affected  by  the  proposed  annexation; 
the  objections  of  parties  either  to  the  invoked  authority,  the 
petition,  or  the  manner  and  time  of  the  notice;  the  considera- 
tion of  this  petition  or  these  objections  by  some  duly  authorized 
official  body  or  officer;  and  the  effect  of  such  annexation  upon 
property  within  the  limits  of  the  territory  annexed  or  upon 
political  rights  of  residents,  which  will  all  be  considered  in  suc- 
ceeding sections. 

In  New  Jersey  a  constitutional  provision  limits  to  general  laws 
the  power  of  regulating  the  internal  affairs  of  towns  and  coun- 
ties, and  it  is  there  held  that  the  passage  of  special  legislation 
providing  for  the  annexation  of  a  town  or  city  does  not  con- 
stitute a  regulation  of  the  internal  affairs  of  such  communities 
within  the  meaning  of  the  constitutional  provision  and  therefore 
is  valid.137 

§  36.    Location  or  character  of  territory  annexed. 

The  next  question  to  be  considered  on  the  annexation  of  terri- 
tory to  an  existing  organization  is  the  location  of  the  land 
sought  to  be  annexed.  The  mere  fact  that  the  municipal  cor- 
poration may  desire  to  enlarge  its  boundaries  does  not  give  it 
that  right  irrespective  of  the  character  or  location  of  prospective 
territory,  and  its  annexation  seems  to  depend  on  its  location, 
whether  it  is  "contiguous"  or  "adjacent";138  the  benefit  it  may 

is?  Miller  v.   City  of  Camden,   64  34  Pac.  497;  City  of  Denver  v.  Cou- 

N.  J.  Law,  722,  44  Atl.  961;  affirmed  lehan,    20    Colo.    471,   39    Pac.    425; 

64   N.    J.   Law,   722,   46    Atl.    1100;  Murray  v.  City  of  Virginia,  91  111. 

Miller  v.  Greenwalt,  64  N.  J.  Law,  558;   City  of  Evansville  v.  Page,  23 

197,   44   Atl.   880;    Hufty   v.   Green-  Ind.    525;    City   of   Peru   v.   Bearss, 

wait,  64  N.  J.  Law,  197,  44  Atl.  880.  55  Ind.  576;   Stilz  v.  City  of  Indian- 

issVogel   v.   City  of  Little   Rock,  apolis,  55  Ind.  515;   Truax  v.  Pool, 

54  Ark.  335,  15  S.  W.  836,  and  Vestal  46  Iowa,  256;  Tabor  &  N.  R.  Co.  T. 

v.  City  of  Little  Rock,  54  Ark.  321,  Dyson,  86  Iowa,  310;  Hurla  v.  Kan- 

15  S.  W.  891,  16  S.  W.  291.    Terri-  sas  City,  46  Kan.  738,  27  Pac.  143; 

tory  separated  from  a  city  by  a  nav-  Tilford   v.  City  of  Olathe,  44  Kan. 

igable  stream   held  to  be  "contigu-  721. 

ous."  People  v.  Holihan,  29   Mich.  116. 

Woodruff     T.     City     of     Eureka  The  boundaries  of  a  city  cannot  be 

Springs,  55  Ark.  618;  People  v.  City  enlarged  by  the  annexation  of  parts 

of  Oakland,  123  Cal.  598;   Town  of  of   adjoining   townships   when    this 

Valverde  v.  Shattuck,  19  Colo.  104,  would  alter  the  boundaries  of  repre- 


68 


CORPORATE  LIFE;  EXISTENCE. 


§    -6 


derive  from  the  imposition  of  its  new  form  of  government  ;139  and 
whether  or  not,  as  has  already  been  suggested,  its  value  is  en- 
hanced to  such  a  degree  by  the  existence  of  a  center  of  popula- 
tion near  by  that  it  should  justly  share  its  proportion  of  the  bur- 
dens of  such  municipality.140 

In  Kentucky  and  Iowa  it  is  held  independent  of  statute  that 
while  the  power  of  the  corporation  to  extend  its  boundaries  will 
not  be  interfered  with  or  limited  by  the  fact  that  the  rate  of 
taxation  inside  the  city  limits  is  higher  than  that  in  the  territory 
annexed,  yet  in  the  exercise  of  such  power  it  is  required  that 
the  city  must  establish  a  special  rate  of  taxation  for  the  territory 
so  annexed  in  order  to  avoid  any  unjust  increase  of  the  burden 
of  taxation  disproportionate  to  the  benefits  received.141 


sentative  districts,  such  alteration 
being  forbidden  by  the  constitution. 

Warren  v.  Barber  Asphalt  Pav. 
Co.,  115  Mo.  572,  22  S.  W.  490;  City 
of  St.  Louis  v.  Allen,  13  Mo.  400. 

People  v.  Prillen,  73  App.  Div. 
207,  76  N.  Y.  Supp.  821.  N.  Y.  Con- 
solidation Laws  of  1882,  chap.  410, 
construed  as  to  authority  for  licens- 
ing engineers.  City  of  Omaha  v. 
City  of  South  Omaha,  31  Neb.  378, 
47  N.  W.  1113;  State  v.  Van  Camp, 
36  Neb.  9,  91,  54  N.  W.  113;  Blanch- 
ard  v.  Bissell,  11  Ohio  St.  96;  Ap- 
peal of  Brinton,  142  Pa.  511;  Union 
County  v.  Knox  County,  90  Tenn. 
541;  State  v.  City  of  Waxahaehie, 
81  Tex.  626.  See,  also,  33  Am.  & 
Eng.  Corp.  Cas. 

i3»  Paul  v.  Town  of  Walkerton, 
150  Ind.  565,  50  N.  E.  725. 

Lake  Erie  &  W.  R.  Co.  v.  City  of 
Alexandria,  153  Ind.  521.  In  this 
case  the  reasons  given,  in  affirming 
an  order  annexing  territory,  set  out 
quite  clearly  necessary  conditions 
coming  within  the  rules  suggested 
in  the  text.  It  was  alleged  in  the 
petition  that  certain  territory  re- 
quired better  police  surveillance 
than  could  be  given  without  munic- 
ipal control,  that  property  and  resi- 


dents within  that  territory  enjoyed 
police  protection  without  the  pay- 
ment of  taxes  therefor,  and  further, 
that  the  territory  needed  water, 
sewage  and  improved  street  facili- 
ties, which  could  only  be  secured 
through  municipal  organization. 

Town  of  Latonia  v.  Hopkins,  104 
Ky.  419,  47  S.  W.  248;  Specht  v. 
City  of  Louisville,  22  Ky.  L.  R.  699, 
58  S.  W.  607;  Copeland  v.  City  of 
St.  Joseph,  126  Mo.  417;  Parker  v. 
Zeisler,  73  Mo.  App.  537;  Kansas 
City  v.  Stegmiller,  151  Mo.  189;  Vil- 
lage of  Hartington  v.  Luge,  33  Neb. 
623,  50  N.  W.  957;  Village  of  Syra- 
cuse v.  Mapes,  55  Neb.  738,  76  N.  W. 
458:  Jones  v.  City  of  Memphis, 
101  Tenn.  188,  47  S.  W.  138. 

no  Village  of  Syracuse  v.  Mapes, 
55  Neb.  738,  76  N.  W.  458. 

City  of  East  Dallas  v.  State,  73 
Tex.  370.  Where  the  court  referred 
to  "A  tendency  on  the  part  of  thriv- 
ing and  ambitious  cities  to  extend 
the  limits  of  the  municipality  be- 
yond the  urban  population  and  to 
subject  to  taxation  persons  and 
property  who  neither  need  nor  re- 
ceive any  protection  from  the  city 
government." 

1*1  Maltus   v.    Shields,   59    Ky.    (2 


§    36  TERRITORIAL  CHANGES.  69 

"That  injustice  may  be  and  has  sometimes  been  done  by  the 
annexation  of  territory  to  a  town  which  has  contracted  an  im- 
provident debt  is  no  doubt  true ;  and  sometimes,  and  perhaps 
more  frequently,  the  owners  of  contiguous  territory  have  had 
the  benefit,  by  reflected  value  and  convenience,  of  expenditures 
for  which  they  have  not  contributed  anything.  The  question 
is  one  beyond  the  reach  of  practical  consideration,  in  the  ab- 
sence of  any  statute;  and  it  would  require  a  very  artificial  and 
unsound  mode  of  reasoning  to  hold  that  territory  could  not  be 
annexed  to  a  town  which  owed  debts  until  the  owners  of  such 
territory  were  paid  a  compensation  in  money  for  a  proportional 
part  of  such  debts,  on  the  ground  that  the  property  annexed 
was  condemned  for  public  use."142  Territory  may  be  enlarged 
by  the  annexation  of  contiguous  land  notwithstanding  the  re- 
monstrances of  the  people  residing  within  such  territory  unless 
the  constitution  or  general  statutes  of  the  state  require  that  the 
consent  of  all  the  inhabitants  shall  be  first  obtained.  This  con- 
sent is  frequently  required  as  a  condition  precedent  to  annexa- 
tion.143 Another  question  sometimes  considered  by  the  courts  is 
its  availability  for  certain  uses;  is  it  fit  for  platting  or  other 
urban  purposes,  or  is  a  strictly  rural  use  the  only  one  to  which 
it  can  be  put?144  Another  limitation  upon  the  power  to  annex 

Mete.)  553;  Louisville  Bridge  Co.  v.  Evansville  v.  Page,  23  Ind.  525; 

City  of  Louisville,  81  Ky.  189;  Dei-  Chandler  v.  City  of  Kokomo,  137 

man  v.  City  of  Ft.  Madison,  30  Iowa,  Ind.  295,  36  N.  E.  847;  Pittsburgh, 

542;  Butler  v.  City  of  Muscatine,  11  C.,  C.  &  St.  L.  R.  Co.  v.  City  of  In- 

lowa,  433.  dianapolis,  147  Ind.  292,  46  N.  E. 

142  powers  v.  Wood  County  641;  Glover  v.  City  of  Terre  Haute, 

Com'rs,  8  Ohio  St.  286.  129  Ind.  593;  Forsythe  v.  City  of 

1*3  village  of  Hartington  v.  Luge,  Hammond,  142  Ind.  505;  Lake  Erie 

33  Neb.  623,  50  N.  W.  957;  City  of  &  W.  R.  Co.  v.  City  of  Alexandria, 

Topeka  v.  Gillett,  32  Kan.  431;  153  Ind.  521;  Glass  v.  City  of  Cedar 

Opinion  of  Justices,  60  Mass.  (6  Rapids,  68  Iowa,  207;  City  of  Em- 

Cush.)  580;  Stone  v.  City  of  Charles-  poria  v.  Smith,  42  Kan.  433,  22  Pac. 

town,  114  Mass.  214;  Daly  v.  Mor-  616;  Union  Pac.  R.  Co.  v.  Kansas 

gan,  69  Md.  460;  City  of  St.  Louis  City,  42  Kan.  497,  22  Pac.  633;  Til- 

v.  Russell,  9  Mo.  507;  City  of  East  ford  v.  City  of  Olathe,  44  Kan.  721; 

Dallas  v.  State,  73  Tex.  371.  following  City  of  Emporia  v.  Smith, 

I"  Clark  v.  Kansas  City,  176  U.  S.  42  Kan.  433,  22  Pac.  616;  Eskridge 

114;  Vestal  v.  City  of  Little  Rock,  v.  City  of  Emporia,  63  Kan.  368,  65 

54  Ark.  321,  15  S.  W.  891,  16  S.  W.  Pac.  694;  Yancey  v.  Town  of  Fair- 

291;  City  of  Eureka  Springs  v.  view,  23  Ky.  L.  R.  2087,  66  S.  W. 

Woodruff,  55  Ark.  616;  City  of  636;  Copeland  v.  City  of  St.  Joseph, 


70  CORPORATE  LIFE;  EXISTENCE.  §   37 

may  lie  in  the  fact  that  the  territory  sought  to  be  included 
forms  in  itself  an  organization  of  a  municipal  or  public  quasi 
corporation  nature.145 

Many  of  the  cases  cited,  following  a  statutory  provision,  hold 
that  annexation  of  lands  not  ordinarily  coming  within  the  rule 
may  be  effected  where  the  owners  of  such  lands  petition  or  vote 
for  annexation.  This  is  especially  true  in  cases  where  as  a  con- 
sequence municipal  taxes  may  be  or  are  imposed  on  lands  strictly 
rural  in  character  and  therefore  not  capable  of  receiving  the 
benefits  or  advantages  usually  derived  from  municipal  organiza- 
tion.146 

§  37.    The  petition  for  annexation. 

It  is  difficult  to  state  a  general  rule  or  principle  of  law  which 
shall  govern  the  formulating  of  a  petition  having  for  its  purpose 
the  annexation  of  territory  to  an  existing  public  corporation. 
This  difficulty  arises  from  the  fact  that  proceedings  looking  to 
this  end  .are  usually  statutory  in  their  character.  It  might  be 
said  that  in  the  construction  of  such  provisions  that  rule  should 
be  given  which  applies  to  all  rights  created  by  statute,  namely, 
the  rule  of  strict  construction.  The  petition  is  usually  held 
jurisdictional,  and  noncompliance  with  the  statutes  in  form  and 
averments  is  generally  held  fatal.147  If  there  are  statutory  pro- 

126  Mo.  417;  State  v.  Dimond,  44  ity  see  Finley  v.  Dietrick,  12  Iowa, 
Neb.  154;  City  of  Wahoo  v.  Tharp,  516;  Traux  v.  Pool,  46  Iowa,  256. 
45  Neb.  563;  Chicago,  B.  &  Q.  R.  KT  People  v.  City  of  Oakland,  123 
Co.  v.  Nebraska  City,  53  Neb.  453,  Cal.  598;  Forsythe  v.  City  of  Ham- 
73  N.  W.  952.  mond,  142  Ind.  505,  40  N.  E.  267,  41 
i«  McAskie's  Appeal,  154  Pa.  24.  N.  E.  950;  Elston  v.  Trustees  of 
i*«  People  v.  Bennett,  29  Mich.  Crawfordsville,  20  Ind.  272;  In  re 
451;  In  re  Borough  of  Camp  Hill,  Chester  Tp.,  174  Pa.  177;  Paul  v. 
142  Pa.  511,  21  Atl.  978;  In  re  Town  of  Walkerton,  150  Ind.  565, 
Borough  of  Little  Meadows,  28  Pa.  50  N.  E.  725;  Layton  v.  City  of  Mon- 
256;  In  re  Borough  of  Blooming  roe,  50  La.  Ann.  121;  State  v.  Crow 
Valley,  56  Pa.  66;  Kelly  v.  City  of  Wing  County  Com'rs,  66  Minn.  519, 
Pittsburgh,  85  Pa.  170;  Hewitt's  Ap-  68  N.  W.  767,  69  N.  W.  925,  73  N. 
peal,  88  Pa.  55;  City  of  East  Dallas  W.  631;  Graham  v.  City  of  Green- 
v.  State,  73  Tex.  371;  State  v.  Town  ville,  67  Tex.  62;  Mason  v.  City  of 
of  Baird,  79  Tex.  63.  See,  also,  cases  Loudon,  67  Tenn.  (8  Baxt.)  94;  Arm- 
cited  in  preceding  note.  strong  v.  City  of  Topeka,  36  Kan. 
As  to  the  effect  upon  a  homestead  432,  13  Pac.  843.  See,  also,  notes 
through  annexation  to  a  municipal-  in  33  Am.  &  Eng.  Corp.  Gas. 


§   37  TERRITORIAL  CHANGES.  71 

visions  permitting  an  amendment  of  such  petition  by  a  court 
having  jurisdiction,  an  order  of  this  court  must  be  .obtained 
before  the  amendment  will  be  valid,  and  then  only  upon  terms 
permitting  those  who  may  object  to  be  heard.148 

The  determination  by  an  authorized  official  body  that  the 
petition  contains  the  necessary  legal  averments  and  is  signed 
by  the  required  number  of  properly  qualified  voters,  is  usually 
held  by  the  courts  to  be  conclusive  in  the  absence  of  fraud,  and 
such  is  ordinarily  the  presumption  of  law.149  It  thereupon  be- 
comes the  duty  of  such  body,  when  the  annexation  of  territory 
is  dependent  upon  the  consent  of  the  people,  to  order  an  election 
for  such  purpose.150 

In  dealing  with  the  presumption  of  law  in  such  cases,  the  court 
in  the  Crow  Wing  County  case  cited  said:  "Respondents  further 
contend  that  the  finding  of  the  commission  followed  as  it  is  by 
the  proclamation  of  the  governor  is  conclusive,  and  that  the 
courts  cannot  in  any  manner  review  such  finding.  Undoubtedly 
every  presumption  is  in  favor  of  such  finding  and  proclamation ; 
and  until  the  relator  is  able  to  prove  that  there  were  neither 
facts  nor  proper  evidence  of  facts  to  support  such  finding  it  must 
stand.  But  if  it  sufficiently  appears  that  the  finding  is  wholly 
unsupported  either  by  the  actual  existing  facts  or  the  proper 
evidence  thereof,  the  relator  should  have  judgment.  We  are 
also  of  the  opinion  that  false,  ex  parte  affidavits  as  to  the  number 
of  voters  residing  in  the  territory  in  question,  or  as  to  any  other 
fact,  are  not  competent  and  sufficient  evidence  to  sustain  such 
findings,  and  neither  is  the  false  report  of  some  private  citizen 
sent  by  the  commission  to  ascertain  the  facts.  As  the  statute 
does  not  provide  for  any  hearing  on  notice  before  the  commis- 
sion but  leaves  the  latter  to  ascertain  in  its  own  way  whether 

i«  Vogel  v.  City  of  Little  Rock,  55  19   Ky.   L.   R.   1766,   44   S.    W.    387; 

Ark.  609;   Woodruff  v.  City  of  Eu-  State  v.  Crow  Wing  County  Com'rs, 

reka  Springs,  55  Ark.  616;    Shugars  66  Minn.  519,  68  N.  W.  767,   69  N. 

v.  Williams,  50  Ohio  St.  297,  34  N.  W.    925,    73   N.    W.    631.     This    pre- 

E.  248.     See,  also,  notes  33   Am.  &  sumption  may  be  rebutted  by  com- 

Eng.  Corp.  Gas.  petent  evidence.     Hunter  v.  Senn,  61 

1*9  People  v.  City  of  Los  Angeles,  S.  C.  44. 

133  Cal.  338,  65  Pac.  749;   Windfall        iso  Roberts  v.  People,  93  111.  App. 

Mfg.   Co.    v.    Emery,    142   Ind.   456;  645;    Young  v.  Carey,  184   111.   613; 

People  v.  City  of  Peoria,  166  111.  517;  Shank  v.  Town  of  Ravenswood,  43 

Town  of  Williamstown  v.  Matthews,  W.  Va.  242,  27  S.  E.  223. 


72  CORPORATE  LIFE;  EXISTENCE.  §   39 

the  petitions  are  conformable  to  law,  the  relator  must  show  not 
only  that  there  was  no  competent  evidence  before  the  commis- 
sion to  sustain  the  finding,  but  also  that  the  actual  facts  do  not 
sustain  such  finding."161 

"Where  territory  to  be  annexed  must  be  contiguous  or  adjacent, 
it  is  necessary  to  recite  in  the  petition  that  land  about  to  be  an- 
nexed is  of  such  character.152  It  is  usually  necessary  to  include 
in  the  petition  averments  to  the^effect  that  the  territory  sought 
to  be  annexed  will,  because  of  its  character  or  location,  be  bene- 
fited by  the  annexation.153 

§  38.    Notice  necessary. 

The  usual  rules  that  govern  the  giving  of  notice  obtain  here 
as  to  those  whose  rights  may  be  affected  by  the  annexation  of 
territory,  and  it  can  be  said  that  such  proceedings  will  not  be 
held  legal  and  binding  upon  those  not  receiving  notice  of  their 
pendency  in  the  manner  required  by  law,  usually  by  publication, 
posting  or  personal  service.154 

§  39.    Objections  to  annexation. 

Objections  to  the  annexation  of  territory  may  be  filed  at  the 
proper  time  by  those  whose  rights  are  injuriously  affected.  These 
objections  may  go  either  to  the  jurisdiction  of  the  tribunal  then 
passing  upon  the  question,  or  to  the  merits  of  the  proceeding. 
In  order  that  territory  can  be  annexed,  certain  conditions  and 
facts  must  exist ;  some  of  these  conditions  created  by  law,  others 
arising  from  the  application  of  fundamental  principles.155  The 

"I  State  v.  Crow  Wing  County  v.  Town  of  Westport,  116  Mo.  582, 

Com'rs,  66  Minn.  519,  68  N.  W.  767,  22  S.  W.  888;  Pelton  v.  Ottawa 

69  N.  W.  925,  73  N.  W.  631.  County  Sup'rs,  52  Mich.  517;  Gotts- 

152  Chandler  v.  City  of  Kokomo,  chalk  v.  Becher,  32  Neb.  653;  Mc- 

137  Ind.  295,  36  N.  E.  847;  State  v.  Fate's  Appeal,  105  Pa.  323;  In  re 

Town  of  Westport,  116  Mo.  582;  In  Borough  of  Camp  Hill,  142  Pa.  511. 

re  Heidler,  122  Pa.  653.  IBS  Windfall  Mfg.  Co.  v.  Emery, 

iss  Village  of  Hardington  v.  Luge,  142  Ind.  456;  Hiatt  v.  Town  of  Dar- 

33  Neb.  623.  lington,  152  Ind.  570;  Town  of  La- 

i54Gunter  v.  City  of  Fayetteville,  tonia  v.  Hopkins,  20  Ky.  L.  R.  620, 

56  Ark.  202;  Ford  v.  Town  of  North  47  S.  W.  248;  City  of  Lebanon  v. 

Des  Moines,  80  Iowa,  626,  45  N.  W.  Creel,  22  Ky.  L.  R.  865,  59  S.  W.  16; 

1031;  City  of  Bloomington  v.  Dunn,  City  of  Louisville  v.  Town  of  Cres- 

27  Ind.  App.  81,  60  N.  E.  958;  State  cent  Hill,  21  Ky.  L.  R.  755,  52  S.  W. 


§   40  TERRITORIAL  CHANGES.  73 

principle  of  estoppel  as  well  as  laches  applies  to  objections  or 
attacks  made  upon  the  validity  of  annexation  proceedings.15' 

§  40.    Official  declaration. 

A  declaration  or  order  by  the  proper  authorities  may  be  re- 
quired by  statute  before  territory  sought  to  be  annexed  becomes 
a  part  of  the  corporation  seeking  such  annexation  or  falls  within 
its  jurisdiction  for  the  purpose  of  levying  municipal  taxes  or 
exercising  municipal  control.157 

The  right  of  appeal.  In  case  of  an  adverse  decision,  property 
owners  should  have  the  privilege  and  right  of  appeal,  and  this 
is  especially  true  where  the  tribunal  passing  upon  the  matter  is 
of  a  ministerial  or  quasi  judicial  character  or  an  inferior  judicial 
body.  If  this  rule  did  not  exist,  the  confiscation  of  property 
might  be  arbitrarily  and  effectually  accomplished  without  an 
opportunity  for  the  correction  of  the  wrong.158  The  appeal  is 
usually  a  trial  de  novo  upon  the  questions  which  can  be  and  are 
raised.  As  already  suggested  the  findings  or  conclusion  of  the 
inferior  body,  in  certain  respects,  may  be  conclusive,  except  in 
cases  of  fraud.  One's  right  to  appeal  cannot  be  questioned  or 
denied  on  the  ground  that  his  interest  may  be  trifling. 

In  an  Iowa  case  the  court  said:  "The  assessed  valuation  of 
the  land  is  $80  and  the  taxes  thereon  amount  to  $1.31.  This  is 
thought  to  be  too  trifling  to  permit  an  action.  The  law  provides 

1054;  Summers  v.  Town  of  Elsmere,  Cobb  v.  Kingman,  15  Mass.  197. 
21  Ky.  L.  R.  1525,  55  S.  W.  682;  In  In  this  case  there  had  been  an  ac- 
re Robinson's  First  Addition  to  City  quiescence  for  eighty  years  in  exist- 
of  Hutchinson,  62  Kan.  426,  63  Pac.  ing  conditions. 

426;   Felix  v.  Wagner,  39  La.  Ann.  Gottschalk  v.  Becher,  32  Neb.  653; 

391;    City  of  Pittsburg's  Appeal,  79  In  re  Borough  of  Camp  Hill,  142  Pa. 

Pa.    317;     In    re    Incorporation    of  511,  21  Atl.  978;  Sherry  v.  Gilmore, 

Borough  of  Edgewood,  130  Pa.  348,  58  Wis.  324. 

18  Atl.  646;  In  re  Borough  of  War-  IBT  Murray  v.  City  of  Virginia,  91 

ren,  168  Pa.  441.  111.  558. 

IKS  Black  v.  Town  of  Brinkley,  54  IBS  Phillips  v.  Corbin,  8  Colo.  App. 

Ark.  372,  15  S.  W.  1030.    A  delay  of  346;   Wilcox  v.  City  of  Tipton,  143 

eight  months  regarded  as  laches.  Ind.  241;   Forsythe  v.  City  of  Ham 

State  v.  City   of  Des  Moines,   69  mond,  142  Ind.  505;  Paul  v.  Town  of 

Iowa,  521,  65  N.  W.  818.     The  prin-  Walkerton,   150   Ind.   565,   50   N.  E. 

ciple  of  estoppel  applies  even  where  725;  Lewis  v.  Town  of  Brandenburg, 

the  original  authority  was  unconsti-  20  Ky.  L.  R.  1011,  47  S.  W.  862,  48 

tutional.  S.  W.  978. 


74  CORPORATE  LIFE;  EXISTENCE.  §   41 

that  any  citizen  having  an  interest  in  the  question  may  prose- 
cute the  action  to  final  judgment.  The  law  was  complied  with 
*  *  *  and  this  is  conclusive  upon  us."™9  However,  the 
statutes  in  some  cases  limit  such  right  of  appeal  to  citizens  and 
freeholders  of  the  territory  sought  to  be  included.160 

§  41.    The  effect  of  annexation  upon  those  concerned. 

Upon  the  annexation  of  territory  to  a  public  corporation  al- 
ready organized,  existing  rights  either  of  the  corporation  itself, 
of  those  residing  within  its  limits,  or  of  those  who  have  had 
dealings  with  the  corporation,  may  be  affected  by  such  action.181 
There  may  be  suits  pending  by  or  against  the  corporation,  and 
it  is  held  that  such  annexation  does  not  or  cannot  affect  or 
change  the  rights  or  status  of  the  parties.168  The  territory  an- 
nexed may  have  been  a  public  quasi  or  a  municipal  corporation 
with  obligations,  liabilities  or  contract  rights  existing  in  favor 
of  private  parties.  The  rule  of  law  is  uniform  that  no  organized 
territory  can  avoid  or  defeat  such  rights  and  obligations  by  a 
change  in  its  form  of  government,  or  even  through  its  dissolu- 
tion. Even  the  Igislature  cannot  authorize  or  permit  the  de- 
struction of  contract  rights  or  of  legal  obligations  through  such 
proceedings  by  dishonest  public  corporations.183  This  subject 
will  be  considered  at  greater  length  in  succeeding  sections. 

It  seems  to  be  also  the  general  rule  that  in  cases  of  annexation 

IBS  state  v.  City  of  Des  Moines,  96  So.   382;    Inhabitants   of    Wilton   v. 

Iowa,  521,  65  N.  W.  818.  Inhabitants  of  New  Vineyard,  43  Me. 

leo  Pittsburgh,  C.,  C.  &  St.  L.  R.  315 ;    Inhabitants   of  Castine   v.   In- 

Co.  v.  City  of  Indianapolis,  147  Ind.  habitants  of  Winterport,  56  Me.  319; 

292,  46  N.  E.  641.  Miller  v.  Greenwalt,   64  N.  J.  Law, 

lei  People  v.  City  of  Oakland,  123  197,   44   Atl.    880;    Miller  v.    Green- 

Cal.  598.     Held  here  that  the  annex-  wait,  64  N.  J.  Law,  722,  46  Atl.  1100; 

ation  of  new  territory  would  not  be  Wright  v.   City   of  Mt.   Vernon,   44 

considered  an  amendment  to  a  city's  App.  Div.  574,  60  N.  Y.  Supp.  1017. 

charter.  162  People  v.  City  &  County  of  San 

Edmunds  v.  Gookins,  20  Ind.  477;  Francisco  Sup'rs,  21  Cal.  668. 

Harrison  v.  People,  97  111.  App.  421 ;  lea  D'Esterre  v.  City  of  New  York 

City  of  East  St.  Louis  v.  Rhein,  139-  (C.  C.  A.)  104  Fed.  605;  Burlington 

111.  116,  28  N.  E.  1089;  Morris  Coun-  Sav.   Bank  v.   City  of  Clinton,   106 

ty  Com'rs  v.  Hinchman,  29  Kan.  90;  Fed.  269;   Kearny  County  Com'rs  v. 

Pence  v.  City  of  Frankfort,  101  Ky.  Vandriss    (C.  C.  A.)    115  Fed.   866; 

634,  41  S.  W.  1011;   Dees  v.  City  of  Henderson  v.  City  of  New  York,  66 

Lake  Charles,   50  La.   Ann.   356,   23  App.  Div.  180,  72  N.  Y.   Supp.   609. 


§  42  TERRITORIAL  CHANGES.  75 

of  organized  territory,  its  powers  cannot  be  diminished  through 
the  fact  that  in  some  respects  the  powers  of  the  municipality  to 
which  it  is  annexed  may  be  less,  though  this  may  be  regulated 
by  statutory  provisions.164 

The  consolidation  of  territory  into  municipal  organizations 
usually  does  not  affect  the  lines  of  highway,  parish,  school, 
judicial  or  legislative  districts  embraced  within  such  territory, 
but  these  continue  the  same  as  before  the  consolidation  or  an- 
nexation.165 

The  control  of  public  property  passes  upon  the  consolidation 
of  municipalities  to  the  consolidated  organization.  It  does  not 
remain,  as  a  rule,  with  the  corporations  consolidating.  These, 
for  purposes  of  regulation  and  ownership,  pass  out  of  exist- 
ence.166 

So  long  as  the  corporation  retains  the  same  identity,  its  claim 
and  title  to  property  remain  unaffected.167 

§  42.    Division  of  public  corporations  and  the  authority. 

A  municipal  corporation  proper  partakes  both  of  the  nature 
of  a  public  and  private  corporation.  It  is  public  in  that  it  is  a 
governmental  agent  performing  public  duties  as  directed  by  the 
legislature,  receiving  and  holding  its  charter  and  powers  at  the 
will  of  the  legislature;  a  private  corporation,  but  differing  from 
others,  in  that  it  is  one  organized  for  the  better  comfort,  ad- 
vantage and  convenience  of  those  residing  within  its  limits.  The 
wants  of  centers  of  population  are  many  and  complex  compared 

164  City  of  Chicago  v.   Weber,  94  Overseers  of  Poor  v.  Sears,  39  Mass. 

111.    App.   561;    People   v.   Harrison,  (22  Pick.)  122.     See  cases  cited  §  85. 

191  111.  257;  People  v.  Roosevelt,  24  iee  Wright  v.  City  of  Mt.  Vernon, 

App.  Div.  17,  48  N.  Y.  Supp.  1043;  44   App.    Div.    574,    60   N.    Y.    Supp. 

Glentz  v.  State,  38  Wis.  549;  Bronx  1017;    Inhabitants   of   Bloomfield   v. 

Gas  &  Elec.  Co.  v.  City  of  New  York,  Borough  of  Glen  Ridge,  54  N.  J.  Eq. 

17  Misc.  433,  41  N.  Y.  Supp.  358.  276,  33  Atl.  925;   Wabash  R.  Co.  v. 

IBS  Kentucky   Wagon    Mfg.    Co.    v.  City  of  Defiance,  52  Ohio  St.  262,  40 

City  of  Louisville,  20  Ky.  L.  R.  408,  N.  E.  89. 

46   S.   W.  499;    Harrisson  v.   Hern-  "7  Heizer  v.   Yohn,   37  Ind.   415; 

sheim,  28  La.  Ann.  881.     The  juris-  Springwells   Tp.   v.   Wayne   County 

diction  of  state  courts  is  never  af-  Treasurer,  58  Mich.   240;   Norris  v. 

fected  by  changes  in  the  boundaries  Town    of    Smithville,    31    Tenn.    (1 

of  municipal  corporations.  Swan)    164;   Town  of  Milwaukee  v. 

Dillingham  v.  Snow,  5  Mass.  547;  City  of  Milwaukee,  12  Wis.  93. 


76  CORPORATE  LIFE;  EXISTENCE.  §   43 

with  the  needs  of  country  sparsely  settled.  Cities,  towns  and 
villages  must  have  water  and  sewerage  facilities  to  preserve  the 
health  of  their  inhabitants,  fire  and  police  departments  to  pro- 
tect the  property  and  lives  of  those  residing  or  coming  within 
their  borders,  and  in  addition  to  these  elementary  desires,  facili- 
ties for  rapid  transportation  from  one  part  of  the  territory  to 
another,  and  others  ordinarily  termed  public  utilities,  the  char- 
acter and  control  of  which  are  questions  of  practical  economics 
and  politics  rather  than  of  law. 

From  the  ideas  suggested  in  the  preceding  paragraph  it  will 
be  seen  that  a  necessity  may  exist  for  division  of  organization. 
Territory  becomes  more  densely  populated,  and,  in  order  that 
this  center  of  population  shall  be  better  governed  and  property 
better  protected,  there  arises  a  demand  for  a  change  in  the  grade 
of  governmental  organization  or  for  a  concentration  of  govern- 
ment. 

A  public  corporation  being  an  artificial  person  exists  wholly  at 
the  pleasure  of  the  sovereign.  This  principle  applies  to  all  of 
its  rights,  powers  and  liabilities,  its  boundaries,  its  revenues, 
its  mode  of  organization,  and  its  municipal  life.  In  order  there- 
fore that  territory  may  be  divided,  as  in  the  case  of  the  annexa- 
tion or  consolidation  of  adjoining  districts,  there  must  exist  the 
legal  authority  for  such  division;  and  we  may  find  this  authority 
either  in  the  general  statutes  of  a  state  or  in  a  special  act  passed 
on  a  particular  occasion  to  meet  a  peculiar  need.188 

It  is  within  the  discretion  of  the  legislature,  limited  only  by 
constitutional  provisions,  to  provide  the  mode  of  division,  either 
by  means  of  an  election169  held  in  the  manner  and  at  the  time 

lessee  chap.  Ill  on  legislative  154;  State  v.  Clark,  59  Neb.  702,  82 

control,  post.  N.  W.  8;  citing  17  Neb.  188;  22  Neb. 

169  Van  Dusen  v.  Fridley,  6  Dak.  158;  26  Neb.  521;  29  Neb.  460;  43 

322;  People  v.  George,  2  Idaho,  813,  Neb.  635;  50  Neb.  130,  620;  and  51 

26  Pac.  983;  People  v.  Reynolds,  10  Neb.  801;  State  v.  Armstrong,  30 

111.  1;  Monk  v.  Town  of  George,  86  Neb.  493;  State  v.  Roper,  47  Neb. 

Iowa,  315.  417;  In  re  Mathews,  59  App.  Div. 

State  v.  Mantor,  14  Minn.  437  159,  69  N.  Y.  Supp.  203;  People  v. 

(Gil.  327).  Proceedings  of  county  Morrell,  21  Wend.  (N.  Y.)  563; 

commissioners  held  void  as  unau-  Sansom  v.  Mercer,  68  Tex.  488,  5  S. 

thorized  by  law.  W.  62;  Freemont  County  Com'rs  v. 

State  v.  Nelson,  34  Neb.  162,  51  N.  Perkins,  5  Wyo.  166,  38  Pac.  915. 

W.  648;  State  v.  Dimond,  44  Neb.  See,  also,  cases  cited,  §  85. 


§  42 


TERRITORIAL  CHANGES. 


77 


provided,  and  upon  the  consent  at  this  election  of  a  certain  per- 
centage of  the  duly  qualified  voters  of  the  district  affected,170 
or  it  may  provide  arbitrarily  and  directly  for  the  division  of  the 
territory.171  In  states  having  constitutional  provisions  prohibit- 
ing special  legislation,  such  acts  must  be  of  a  general  nature  and 
have  a  uniform  operation  throughout  the  state. 

Division  of  territory  upon  the  principles  suggested  can  be 
applied  not  only  to  the  subdivision  of  the  larger  political  organ- 
izations, but  also  to  the  division  and  rearrangement  of  what 
may  be  termed  the  ward  lines  of  an  existing  municipality.  In 
the  latter  case  the  rearrangement  of  such  lines  is  effected  through 
the  city  council,  the  local  legislative  body  of  the  municipal  cor- 
poration possessing  the  legal  authority.172 

One  of  the  fundamental  differences  between  a  municipal  cor- 
poration proper  and  a  public  or  public  quasi  corporation  is  the 
difference  in  power  as  to  the  initiation  of  action  legislative  in 
its  character,  looking  to  the  betterment  and  convenience  of  the 
people  within  its  limits.  The  city  council  or  legislative  body, 
by  whatever  name  it  may  be  known,  has  this  power  of  local 


"o  McKena  v.  Mount  Vernon,  51 
Iowa,  306;  State  v.  Cheyenne  Coun- 
ty Com'rs,  24  Neb.  40,  38  N.  W.  40; 
State  v.  Armstrong,  30  Neb.  493. 

171  People  v.  Martin,  178  111.  611. 
Seibert  v.  Swayne,  97  111.  App.  85. 

A  general  law  does  not  authorize  a 
proceeding  for  the  disconnection  of 
territory  from  a  town  incorporated 
by  a  special  act. 

State  v.  Kinsella,  14  Minn.  524 
(Gil.  395).  Provisions  for  dividing 
township  cannot  be  included  in  an 
act  entitled  "An  act  to  incorporate 
the  village  of  P." 

State  v.  Ruhe,  24  Nev.  251,  52 
Pac.  274;  People  v.  Hayt,  7  Hun  (N. 
Y.)  39. 

172  Cleveland,   C.,  C.  &   St.   L.   R. 
Co.  v.  Dunn,  61  111.  App.  227;   Peo- 
ple v.  City  of  Danville,  147  111.  127; 
Cascaden   v.   City  of  Waterloo,   106 
Iowa,  673,  77  N.  W.  333;  Inhabitants 
of  Tisbury  v.   Inhabitants  of  West 
Tisbury,    171    Mass.    201;    State    v. 


Stewart,  52  Neb.  243;  Morton  v.  Car- 
lin,  51  Neb.  202;  but  county  com- 
missioners have  no  power  to  change 
ward  lines  of  city;  State  v.  City  of 
Newark,  53  N.  J.  Law,  4,  20  Atl. 
886;  McLaughlin  v.  City  of  Newark, 
57  N.  J.  Law,  298,  30  Atl.  543;  Smith 
v.  Howell,  60  N.  J.  Law,  384. 

In  Gilhooly  v.  City  of  Elizabeth 
and  Hopper  v.  City  of  Paterson,  66 
N.  J.  Law,  484,  49  Atl.  1106,  it  ia 
held  that  a  commission  appointed 
by  the  government  to  district  or  re- 
district  wards  in  cities  is  unconsti- 
tutional as  a  regulation  of  munic- 
ipal affairs  by  commission. 

State  v.  City  of  Bayonne,  54  N.  J. 
Law,  125,  22  Atl.  1006;  McCulley  v. 
City  of  Elizabeth,  66  N.  J.  Law,  555, 
49  Atl.  686;  Griffin  v.  Wanser,  57  N. 
J.  Law,  535,  31  Atl.  222;  State  v. 
Pugh,  43  Ohio  St.  98.  See,  also, 
cases  collected  in  33  Am.  &  Eng, 
Corp.  Cas. 


78  CORPORATE  LIFE;  EXISTENCE.  §   43 

initiation  to  a  large  extent,  and  the  objection  raised  at  times 
does  not  hold  that  powers  exercised  cannot  be  legally  exercised 
because  they  are  possessed  originally  by  the  legislative  body  of 
the  sovereign  as  delegated  powers,  and  cannot  therefore  in  turn 
be  delegated  in  their  performance  to  others. 

Legal  authority  may  also  exist  for  the  division  of  districts  or- 
ganized not  only  for  municipal  purposes,  as  commonly  under- 
stood, but  also  for  judicial  or  legislative.173 

§  43.    Character  of  the  district  divided  or  disconnected. 

Granting  the  existence  of  legal  authority,  the  question  may 
arise  as  to  the  character  of  the  territory  or  districts  to  be  di- 
vided, and  if  they  possess  such  characteristics  that  under  the 
authority  granted  the  division  can  be  effected.  Territory  may 
be  disconnected  from  an  existing  municipality  when  it  fails  to 
retain  or  does  not  possess  the  characteristics  which  would  en- 
able it  in  the  first  instance  to  be  annexed  to  an  adjoining  munic- 
ipal organization.174 

The  existence  of  a  deep  wooded  ravine  is  not  such  a  natural 
division  of  territory  as  requires  separate  corporate  existence,175 
and  prohibitions  against  the  division  or  disconnection  of  terri- 
tory may  apply  to  the  area176  or  population  of  a  certain  dis- 
trict.177 And  it  has  also  been  held  that  the  owner  of  agricul- 
tural lands  included  within  the  boundaries  of  a  village  is  not 
precluded  from  maintaining  a  suit  to  have  such  lands  de- 
tached.178 

ITS  Howard  v.  McDiarmid,  26  Ark.  Geneva  v.  People,   98   111.  App.  315. 

100;    Sabin  v.  Curtis,  3  Idaho,  662,  See,  also,  33  Am.  &  Eng.  Corp.  Cas. 

32    Pac.    1130;    Alfred   v.    State,   37  ITS  in    re    Borough    of    Edgewood, 

Miss.  296;   In  re  McGinness'  Estate,  130  Pa,  348,  18  Atl.  646. 

13   Misc.   714,   35  N.  Y.   Supp.   820;  ITS  state    v.    Armstrong,    30    Neb. 

Baker  County  v.  Benson,  40  Or.  207,  493,  46  N.  W.  618;   State  v.  Merri- 

66  Pac.  815;   Galley  v.  Guichard,  27  man,  6  Wis.  14;  State  v.  Elwood,  11 

La.  Ann.  396;   State  v.  Williams,  29  Wis.  17. 

La.  Ann.  779;   Lafayette  F.  Ins.  Co.  ITT  City  of  Hastings  v.  Hansen,  44 

v.  Remmers,  29  La.  Ann.  419;  State  Neb.  704,  63  N.  W.  34. 

v.  Blasdel,  6  Nev.  40;  In  re  Judges'  ITS  Village  of  Osmond  v.  Smathers, 

Contested  Election,  109  Pa.  337.  62  Neb.  509,  87  N.  W.  310;  Village 

IT*  Rice  v.  Colorado  Smelting  Co.,  of  Osmond  v.  Matteson,  62  Neb.  512, 

28   Colo.   519,   66   Pac.   894;    Gilbert  87  N.  W.  311. 
v.  Morgan,  98  111.  App.  281;  City  of 


§  44  TERRITORIAL  CHANGES.  79 

§  44.    Mode  of  division,  with  official  declarations. 

The  division  of  territory  may  be  effected  either  on  petition 
signed  by  those  duly  qualified  by  law,  or  on  an  election  called 
and  held  in  the  statutory  manner.  The  result  to  be  judicially 
declared  by  a  judicial  or  ministerial  body  or  a  board  of  county 
commissioners,179  or  a  legislative  body,  viz.,  the  city  council  of 
an  organized  municipality.180 

In  the  Iowa  case  cited,  the  court  held  an  ordinance  fixing  the 
boundaries  invalid  because  not  adopted  by  a  majority  of  the 
whole  number  of  the  council  necessary  under  the  Iowa  code. 
The  necessity  exists  in  all  cases  for  an  official  declaration  and 
determination  of  the  result,  and  it  is  usually  held  that  where 
the  facts  as  presented  show  authority  for  a  division  or  detach- 
ment of  territory,  such  board  or  body  have  no  discretionary  pow- 
ers; neither  can  they  act  judicially  upon  matters  not  appearing 
upon  the  face  of  the  returns.181 

Upon  a  hearing  for  the  consideration  of  a  petition  for  the  dis- 
connection or  division  of  territory,  or  the  determination  of  the 
result  of  an  election  held  to  accomplish  the  same  purpose,  unless 
such  is  had  before  a  court  of  superior  jurisdiction,  the  proceed- 

179  People  v.  Binns,  192  111.  68.  As  see  contra,  Monk  v.  Town  of  George, 
to  appointment  of  commissioners  to  86  Iowa,  315,  53  N.  W.  240,  where 
divide  a  town  site  in  pursuance  of  passage  of  ordinance  disconnecting 
14  U.  S.  St.  541,  see  Allen  v.  Hous-  territory  was  sought  to  be  corn- 
ton,  21  Kan.  194\  People  v.  Car-  pelled  by  mandamus, 
penter,  24  N.  Y.  86;  Griffin  v.  Wan-  Kansas  Town  Co.  v.  McLean,  7 
ser,  57  N.  J.  Law,  535;  In  re  Exeter  Kan.  App.  101;  Town  of  South  Port- 
Borough,  8  Kulp  (Pa.)  115;  In  re  ian(j  v  Town  of  Cape  Elizabeth,  92 
Wyalusing  Tp.,  2  Serg.  &  R.  (Pa.)  Me.  328;  Inhabitants  of  Orvil  v. 
402;  In  re  Summit  Borough,  114  Pa.  Borough  of  Woodcliff,  61  N.  J.  Law, 
362;  State  v.  Rigsby,  17  Tex.  Civ.  107 ;  Brown  v.  Fowzer,  114  Pa.  446; 
App.  171,  43  S.  W.  271;  In  re  Har-  case  of  Green  Township,  9  Watts  & 
rison  Tp.,  5  Pa.  447.  S.  (Pa.)  22;  In  re  Limestone  Town- 

iso  Cascaden  v.  City  of  Waterloo,  ship,  11  Pa.  270;  In  re  Plum  Town- 

106   Iowa,   673,   77   N.  W.  333;    Me-  ship,  83   Pa.  73;    but  In  re  Gettys- 

Culley  v.   City   of  Elizabeth,   66   N.  burg,  90  Pa.  355,  and  In  re  Fifteenth 

J.   Law,   555,   49   Atl.   686;    State  v.  Ward,  11  Phila.  (Pa.)  406,  hold  that 

Darrow,  65  Minn.  419,  67  N.  W.  1012.  it  is  proper  practice  in  the  petition 

isi  City   of   Geneva   v.    People,    98  to  ask   for  a  division,   leaving  the 

111.  App.   315;   Village  of  New  Hoi-  details  as   to  the  number  of  wards 

land   v.   Holland,   99    111.  App.   251;  and   the  boundaries   thereof  to  the 

Henry  v.   Taylor,  57  Iowa,  72.     But  judgment  of  the  commissioners. 


80  CORPORATE  LIFE;  EXISTENCE.  45 

ings  are  usually  of  an  informal  nature,182  and  the  rules  of  evi- 
dence do  not  strictly  apply  to  testimony  introduced,  though 
rules  of  law  as  to  the  waiver  of  rights  by  appearance  or  trial 
usually  obtain.183  It  may  also  be  necessary  to  give  a  notice  in 
writing,  and  this  when  required  is  jurisdictional  as  to  persons 
or  property  affected.184 

§  45.    Effects  of  annexation  or  division  upon  public  property 
and  liabilities. 

A  public  corporation,  during  its  existence,  acquires  property 
and  usually  contracts  liabilities.  This  property  is  partially  or 
wholly  paid  for  through  the  levy  of  taxes  upon  taxable  interests 
within  its  jurisdiction.  In  the  annexation  of  territory,  the  ef- 
fects of  such  action  are  comparatively  few  and  unimportant. 
When  territory  is  divided,  however,  other  and  more  serious 
questions  may  arise:  The  obligations  or  liabilities  before  di- 
vision; how  apportioned,  and  if  wholly  assumed  by  part  of  the 
territory  thus  divided,  by  what  part;  and,  on  the  other  hand, 
what  part  of  the  district  thus  divided  should  retain  the  property. 
On  these  questions  many  cases  will  be  found  fixing  or  attempting 
to  fix  a  rule  as  to  the  division  of  both  liabilities  and  property, 
which  shall  be  just  and  equitable  considered  from  the  stand- 
point of  the  corporation  itself  and  private  individuals  with  con- 
tract rights  capable  of  enforcement  or  creditors  of  the  corpora- 
tion.185 

isz  in  re  Borough  of  Lansford,  141  Hope  Cemetery  v.  City  of  Boston, 
Pa.  134,  21  Atl.  503.  158  Mass.  512;  City  of  Winona  v. 

Sch°o1   Dist   No"   82'   40 


is3Luickv.TownofBelmond,109 

Iowa    361  Clother  v.  Maher,  15  Neb.  2;  School 

Dist.   No.  3  v.  Greenfield,  64  N.  H. 

i84Feiton      v.      Ottawa      County  86;   peopie  v.  Ulster  County  Sup'rs, 

Sup'rs,  52  Mich.  517.  94  N    y    267;   Dare  County  Com'rs 

iss  Town  of  Mt.  Pleasant  v.  Beck-  v.  Currituck  County  Com'rs,  95   N. 

with,  100  U.  S.  514;  Comanche  Coun-  C.  192;  Morris  v.  State,  62  Tex.  743; 

ty  Com'rs  v.  Lewis,  133  U.  S.  205;  De  Mattos  v.  City  of  New  Whatcom, 

Pepin    Tp.   v.    Sage,   129    Fed.   657;  4  Wash.  130;  Board  of  Education  of 

Perry  County  v.  Conway  County,  52  Barker  Dist.  v.  Board  of  Education 

Ark.    432;     Washington    County    v.  of  Valley  Dist.,  30  W.  Va.  430;  Rich- 

Weld  County,  12  Colo.  154;  True  v.  land  County  v.  Village  of  Richland 

Davis,  133  111.  532;  Towle  v.  Brown,  Center,    59    Wis.     599;     Knight     v. 

110  Ind.   68;   City  of  Wellington  v.  Town    of    Ashland,    61    Wis.     242; 

Wellington  Tp.,  46  Kan.  221;  Mount  Schriber  Y.  Langlade,  66  Wis.   629; 


§  46 


TERRITORIAL  CHANGES. 


§  46.    Division  or  adjustment  of  debts  and  liabilities. 

Considering  first  the  division  or  readjustment  of  indebtedness 
or  liabilities.  Sometimes,  under  laws  authorizing  division  of 
territory,  the  liabilities  of  different  portions  divided  or  annexed 
remain  the  sole  obligation  of  the  original  debtor,  and  taxes  are 
levied  by  that  corporation  upon  the  property  within  its  district 
to  apply  on  their  reduction  or  payment.  The  indebtedness  gen- 
erally follows  the  name;188  or  the  indebtedness  is  assumed  pro- 
portionately by  the  reorganized  corporations,  and  taxes  to  re- 
duce or  pay  the  same  are  assessed  and  levied  upon  all  of  the 
property  within  their  limits.187  Where  a  new  corporation  is 


Forest  County  v.  Langlade  County, 
76  Wis.  610. 

ise  Laramie  County  Com'rs  v.  Al- 
bany County  Com'rs,  92  U.  S.  307; 
Carter  County  v.  Sinton  120  U.  S. 
517;  Burlington  Sav.  Bank  v.  City 
of  Clinton,  106  Fed.  269;  Kearny 
County  Com'rs  v.  Vandriss  (C.  C. 
A.)  115  Fed.  866;  County  of  Tulare 
v.  Kings  County,  117  Cal.  195,  49 
Pac.  8;  Riverside  County  v.  San 
Bernardino  County,  134  Cal.  517,  66 
Pac.  788;  In  re  Establishment  of 
New  Counties,  9  Colo.  639;  Pierson 
Tp.  v.  Reynolds  Tp.,  49  Mich.  224; 
Rumsey  v.  Town  of  Sauk  Centre,  59 
Minn.  316,  61  N.  W.  330;  Town  of 
Humboldt  v.  City  of  Barnesville,  83 
Minn.  219,  86  N.  W.  87;  Hughes  v. 
School  Dist.  No.  29,  72  Mo.  643; 
Huffmire  v.  City  of  Brooklyn,  162 
N.  Y.  584;  Watson  v.  Pamlico  Coun- 
ty Com'rs,  82  N.  C.  17;  Vance  Coun- 
ty Com'rs  v.  Granville  County 
Com'rs,  107  N.  C.  291;  Allegheny 
City  v.  Blair,  74  Pa.  225;  Wade  v. 
Borough  of  Oakmont,  165  Pa.  479; 
Town  of  Spooner  v.  Town  of  Minong, 
104  Wis.  425;  Brewis  v.  City  &  Vil- 
lage of  Duluth,  3  McCrary,  219,  9 
Fed.  747.  See,  also,  cases  collected 
11  Am.  &  Eng.  Corp.  Gas. 

is?  D'Esterre  v.  City  of  New  York, 
104  Fed.  605;  Cash  v.  Town  of  Doug- 
Abb.  Corp. — 6. 


lasville,  94  Ga.  557;  School  Direct- 
ors v.  Miller,  49  111.  494;  Dubuque 
County  v.  Clayton  County,  3  O. 
Greene  (Iowa)  604;  Lake  Charles 
Ice,  Light  &  Waterworks  Co.  r.  City 
of  Lake  Charles,  106  La.  65;  Dyar  v. 
Village  of  Farmington,  70  Me.  515; 
Hampshire  County  v.  Franklin  Coun- 
ty, 16  Mass.  76;  Clay  County  T. 
Chickasaw  County,  76  Miss.  418,  24 
So.  975;  People  v.  Ryan,  19  Mich. 
203;  Holliday  v.  Sweet  Grass  Coun- 
ty, 19  Mont.  364,  48  Pac.  553;  Bronx 
Gas  &  Elec.  Co.  v.  City  of  New  York, 
17  Misc.  433,  41  N.  Y.  Supp.  358;  In 
re  Vacheron,  51  App.  Div.  182,  64  N. 
Y.  Supp.  503;  City  of  Dallas  v.  Bee- 
man,  23  Tex.  Civ.  App.  315;  Higgin- 
botham  v.  Com.,  25  Grat.  (Va.)  627; 
Laramie  County  Com'rs  v.  Albany 
County  Com'rs,  1  Wyo.  137;  Dous- 
man  v.  President  of  Milwaukee 
Town,  1  Pin.  (Wis.)  81. 

Pence  T.  City  of  Frankfort,  19  Ky. 
L.  R.  721,  41  S.  W.  1011.  In  this 
case  the  objection  that  the  annexed 
territory  had  no  voice  in  the  orig- 
inal incurring  of  an  indebtedness 
was  not  held  good,  for,  as  the  court 
said,  they  enjoyed  in  common  with 
others  the  public  improvements  to 
construct  which  the  debt  was  con- 
tracted. 


82  CORPORATE  LIFE;  EXISTENCE.  §  45 

organized  from  territory  formerly  comprised  within  others,  a 
law  providing  for  the  assumption  of  all  indebtedness  by  the  new 
and  that  all  existing  rights  of  action  by  or  against  either 
may  be  maintained  by  or  against  the  new  corporation,188  it  has 
been  held,  does  not  create  a  new  debt  or  renew  by  implication 
the  time  of  payment  so  as  to  affect  the  running  of  the  statute  of 
limitations  against  the  old,189  and  it  has  also  been  held  that  where 
a  part  of  a  public  corporation  is  separated  from  it,  it  is  not 
necessary  to  provide  for  a  readjustment  of  the  debts  or  a  division 
of  the  property  in  order  that  the  law  should  be  valid.190  No  ques- 
tion can  arise,  it  has  been  held  in  California,  as  to  the  adjustment 
of  the  principal  of  the  debt  claimed,  but  only  the  interest  or  a 
portion  thereof.191 

A  public  corporation  may  change  its  character  under  lawful 
authority,  passing  from  a  public  quasi  corporation  to  a  municipal 
corporation  of  the  highest  grade  or  degree  of  organization,  em- 
bracing, however,  the  same  territory.  The  rule  is  clearly  estab- 
lished that  such  change  does  not  work  a  forfeiture  of  any  rights 
existing  as  against  the  old  corporation,  or  defeat  any  of  its  lia- 
bilities, but  that,  so  far  as  its  obligations  and  liabilities  are  con- 
cerned, the  new  corporation  is  liable  for  the  debts  of  the  old. 
The  transition  does  not  work  the  dissolution  of  the  civil  life  of 
the  corporation  so  as  to  extinguish  its  indebtedness.  The  obli- 
gations remain  the  same  and  are  not  impaired  or  destroyed.192 

iss  Huff  mire  v.  City  of  Brooklyn,  22  Fed.  421;  Hill  v.  City  of  Kahoka, 

162  N.  Y.  584.  35  Fed.  32;   Pacific  Imp.  Co.  v.  City 

iss  Robertson  v.  Elaine  County,  85  of  Clarksdale,  74  Fed.  528. 

Fed.   735;    Gibbs   v.    Gibbs,    6   Colo.  Pepin  Tp.  v.  Sage   (C.  C.  A.)   129 

App.   368;    Weiser  v.   McDowell,   93  Fed.  657.     "We  are  of  opinion  that 

Iowa,  772;  McCrady  v.  Jones,  44  S.  the  territory  of  the  village,  upon  its 

C.   406;    Mills  County  v.   Lampasas  dissolution,  fell  within  the  township 

County    (Tex.  Civ.  App.)    40  S.  W.  and   city,   and  made  them  the  suc- 

552;    Town  of  Spooner  v.  Town  of  cessors    of  the    village.     But    it    is 

Minong,  104  Wis.  425.  urged  upon  us  that  this  results  in 

190  Perry  County  v.  Conway  Coun-  transferring  the  debts  of  one  com- 

ty,  52  Ark.  430;  Garland  County  v.  munity  to  other  communities  which 

Hot    Spring    County,    68    Ark.    83;  had  no  voice  in  the  creation  of  the 

Stuart  v.  Kirley,  12  S.  D.  245,  81  N.  debts  or  in  their  transfer.     In  one 

W.  147.  sense,   that  is  true,   but   the   result 

i»i  Beals  v.  Amador  County  Sup'rs,  of  a  ruling  to  the  contrary  would 

28  Cal.  449.  be    distressing    to    contemplate.      It 

192  port  of  Mobile  v.  Watson,  116  would  amount  to  a  declaration  that 

U.  S.  289;  Laird  v.  City  of  De  Soto,  the    state    extinguished    one   of    its 


§  46 


TERRITORIAL  CHANGES. 


83 


And  logically  following  this  rule  it  is  also  held  that  the  powers 
of  the  new  corporation  to  levy  taxes  for  the  payment  of  such  obli- 
gations remain  the  same.  They  are  not  or  cannot  be  lessened  so 
as  to  defeat  the  rights  of  creditors  of  the  old  corporation. 

The  act  of  division  and  reapportionment  of  the  debts,  even 
upon  a  failure  of  the  legislature  to  include  a  scheme  or  plan  for 


municipalities  under  circumstances 
which  make  proceedings  for  the  col- 
lection and  payment  of  the  munici- 
pal debts  impossible.  A  result 
which  imputes  to  a  state  such  an  in- 
difference to  the  claims  of  justice 
and  to  the  lawful  engagements  of 
the  municipalities  under  its  control 
is  not  permissible  where  another  is 
possible  under  the  law.  The  circum- 
stances of  this  case  do  not  permit 
such  an  imputation." 

Bates  v.  Gregory,  89  Cal.  396;  Gil- 
pin  v.  City  of  Ansonia,  68  Conn.  72; 
Inhabitants  of  Bloomfleld  v.  Bor- 
ough of  Glen  Ridge,  54  N.  J.  Eq. 
276;  City  of  Olney  v.  Harvey,  50  111. 
453;  Rogers  v.  People,  68  111.  154; 
Garfield  Tp.  v.  Dodsworth,  9  Kan. 
App.  752,  58  Pac.  565;  Garfield  Tp. 
v.  Hoskinson,  8  Kan.  App.  862,  62 
Pac.  166;  City  of  Maysville  v.  Shultz, 
33  Ky.  (3  Dana)  10;  Higginson  v. 
Turner,  171  Mass.  586,  51  N.  E.  172; 
Inhabitants  of  Mt.  Desert  v.  Inhab- 
itants of  Tremont,  72  Me.  348;  Phin- 
ney  v.  Phinney,  81  Me.  464;  Lee  v. 
City  of  Thief  River  Falls,  82  Minn. 
88,  84  N.  W.  654;  City  of  Jefferson 
v.  Edwards,  37  Mo.  App.  617;  Broad- 
foot  v.  City  of  Fayc-tteville,  124  N. 
C.  478,  32  S.  E.  804;  Scaine  v.  In- 
habitants of  Belleville,  39  N.  J.  Law, 
526;  City  of  Guthrie  v.  Ter.,  1  Okl. 
188,  31  Pac.  190.  But  in  Guthrie 
Nat.  Bank  v.  McElhinney,  5  Okl. 
107,  47  Pac.  1062,  an  indebtedness 
incurred  by  the  people  of  certain 
towns  prior  to  the  consolidation  of 


those  towns  into  the  village  of  Guth- 
rie was  held  an  indebtedness  of  the 
individuals  incurring  it  and  not  of 
the  towns,  and  the  legislature  had 
no  power  to  require  its  payment 
after  consolidation.  The  same  ia 
held  in  City  of  Guthrie  v.  T.  W. 
Harvey  Lumber  Co.,  9  Okl.  464, 
where  the  court  decided  that  the 
provisional  governments  of  towns 
organized  prior  to  act  of  congress 
of  May  2,  1890,  were  but  voluntary 
associations  of  the  people  without 
any  legal  authority  to  contract  debts 
that  should  afterward  constitute  le- 
gal obligations  against  the  munici- 
palities embracing  the  same  terri- 
tory. 

City  of  Philadelphia  T.  Com.,  52 
Pa.  451. 

White  v.  City  of  Quanah  (Tex.  Civ. 
App.)  27  S.  W.  839.  A  vesting  of 
the  property  in  the  new  corporation 
and  the  imposition  of  the  debts  and 
obligations  of  the  old  one  upon  the 
new  is  dependent  on  the  vote  of  the 
taxpayers. 

Ranken  v.  McCallum,  25  Tex.  Civ. 
App.  83,  60  S.  W.  975;  Baxter  v. 
State,  9  Wis.  38;  Schriber  v.  Town 
of  Langlade,  66  Wis.  616. 

In  re  Fremont  &  Big  Horn  Coun- 
ties, 8  Wyo.  1,  54  Pac.  1073.  In  this 
case  it  is  held  that  a  judgment 
against  one  of  the  parent  counties 
must  be  counted  as  a  "debt." 

Denton  v.  Jackson,  2  Johns.  Ch. 
(N.  Y.)  320.  See,  also,  §§  29,  31, 
and  33. 


84  CORPORATE  LIFE;  EXISTENCE.  §-j6 

the  reapportionment  and  readjustment  of  the  debts  and  property 
of  the  territory  affected  is  considered  legislative  in  its  character, 
political  action  on  the  part  of  the  sovereign  not  to  be  interfered 
with  or  changed  by  the  judicial  branch.193 

Some  of  the  attempts  to  formulate  a  rule  applying  to  the 
adjustment  or  reapportionment  of  debts  or  property  in  the  case 
of  division  of  territory  have  been  referred  to  in  the  foregoing 
paragraphs.  A  favorite  expression  of  the  law  makers  in  announ- 
cing such  a  rule  is  the  use  of  the  word  "ratable"  or  "propor- 
tionate."19* The  debts  and  property  must  be  adjusted  in  a  "rata- 
ble" or  "proportionate"  manner,  the  words  applying  either  to 
the  population195  or  the  comparative  assessed  valuation  of  tax- 
able property  of  the  different  portions.196 

Usually  it  is  held  that  where  a  dispute  arises  as  to  what  is  a 
proportionate  or  ratable  division,  it  is  not  necessary  to  make  the 
taxpayers,  either  of  the  old  or  of  the  new  organizations,  parties 
to  a  suit  brought  to  determine  such  dispute.197  In  some  cases 
law  makers  attempt  to  arbitrarily  decide  what  is  either  a  ratable 
or  a  just  and  equitable  division  of  the  debts  and  property  of  the 
territory  divided  or  consolidated198  without  any  reference  of 
these  questions  to  local  authorities  for  their  determination.199 

las  Riverside  County  v.  San   Ber-  Portland  v.  Town  of  Cape  Elizabeth, 

nardino    County,    134    Cal.    517,    66  92     Me.     328;     Chickasaw     County 

Pac.  788.  Sup'rs    v.    Clay    County    Sup'rs,    62 

is*  In  re  Sugar  Notch  Borough,  Miss.  325;  Harrison  Tp.  v.  School- 
192  Pa.  349;  Hardeman  County  v.  craft  County  Sup'rs,  117  Mich.  215; 
Foard  County,  19  Tex.  Civ.  App.  Leflore  County  v.  Carroll  County 
212,  47  S.  W.  30,  536;  Blount  Coun-  Sup'rs,  61  Miss.  220;  Queens  Coun- 
ty v.  Loudon  County,  67  Tenn.  (8  ty  v.  City  of  New  York,  48  App.  Div. 
Baxt.)  74;  In  re  Fremont  &  Big  337,  62  N.  Y.  Supp.  1047;  Mills  Coun- 
Horn  Counties,  8  Wyo.  1,  54  Pac.  ty  v.  Brown  County,  87  Tex.  475; 
1073;  De  Mattos  v.  City  of  New  Goodhue  v.  Town  of  Beloit,  21  Wis. 
Whatcom,  4  Wash.  127,  29  Pac.  933.  636;  Gilkey  v.  Town  of  How,  105 

195  Richardson  v.  Boske,   111  Ky.  Wis.  41. 

893,  64  S.  W.  919;  Trinity  County  v.  w  County  of  Tulare  v.  Kings 
Polk  County,  58  Tex.  321;  Iowa  County,  117  Cal.  195;  County  of  Co- 
County  v.  Green  County,  1  Pin.  lusa  v.  Glenn  County,  117  Cal. 
(Wis.)  518.  434;  Holliday  v.  Sweet  Grass  Coun- 

i96Canova  v.   State,  18   Fla.   512;  ty,  19  Mont.  364;   Brown  County  v. 

Montgomery     County     v.     Menefse  Rock   County,   51   Neb.   277;    Sierra 

County  Ct.,  93  Ky.  33;    Inhabitants  County  Com'rs  v.  Dona  Ana  County 

of  Brewster  v.  Inhabitants  of  Har-  Com'rs,  5  Gild.  (N.  M.)  190;  Pre- 
wich,  4  Mass.  278;  Town  of  South  sidio  County  v.  Jeff  Davis  County. 


§  47 


TERRITORIAL  CHANGES. 


85 


In  Minnesota  it  is  held  that  an  organized  county  has  no  power 
to  create  an  indebtedness  against  an  unorganized  county  attached 
to  it  for  judicial  purpose,  which  will  become  a  valid  debt  of  such 
unorganized  county  on  its  subsequent  organization.200 

§  47.    The  legal  authority;  where  existing. 

The  legislature  having  arbitrary  power,  as  has  been  said,  over 
the  organization  of  all  public  corporations,  to  create  or  dissolve 
them,  increase  or  diminish  their  boundaries,  legislate  as  to  their 
debts  or  liabilities  and  property,  except  so  far  as  the  rights  of 
third  parties  may  be  affected,  it  follows  that  upon  the  division 
or  annexation  of  territory  it  has  the  right  and  the  power  to  deter- 
mine and  apportion,  in  a  fitting  manner,  the  obligations  and  the 
property  of  those  corporations.  It  is  for  the  legislature  to  deter- 
mine to  what  extent  the  property  or  the  inhabitants  of  the  de- 
tached portion  shall  bear  the  burdens  of  the  organizations  to 
which  they  formerly  belonged.201  The  courts,  even  under  con- 
stitutional provisions  to  the  effect  that  every  organization  created 


13  Tex.  Civ.  App.  115;  Hardeman 
County  v.  Foard  County,  19  Tex. 
Civ.  App.  212,  47  S.  W.  30,  536; 
Town  of  Ackley  v.  Town  of  Vilas, 
79  Wis.  157,  48  N.  W.  257. 

laaQntonagon  County  Sup'rs  v. 
Gogebic  County  Sup'rs,  74  Mich.  721, 
42  N.  W.  170;  State  v.  Demann,  83 
Minn.  331,  86  N.  W.  352;  Town  of 
South  Portland  v.  Town  of  Cape 
Elizabeth,  92  Me.  328;  Neilson  v. 
City  of  Newark,  49  N.  J.  Law,  246, 
8  Atl.  292;  Vanderbeck  v.  Inhab- 
itants of  Englewood,  39  N.  J.  Law, 
345. 

Plunkett's  Creek  Tp.  v.  Crawford, 
27  Pa.  107.  A  judgment  against  a 
town  subsequently  divided  can  be 
revived  against  each  fraction  there- 
of with  a  right  of  contribution  to 
that  portion  first  paying  the  indebt- 
edness. 

In  Borough  of  North  Lebanon  T. 
Arnold,  47  Pa.  488,  it  is  held  that 
there  is  no  personal  liability  in  case 
of  division,  resting  upon  the  inhab- 
itants of  territory  rearranged. 


In  re  Sharon  Hill  Borough,  140 
Pa.  250;  Jewell  Nursery  Co.  v.  State, 
4  S.  D.  213,  56  N.  W.  113;  Town  of 
Plainfield  v.  Village  of  Plainfield,  67 
Wis.  526;  In  re  Fremont  &  Big  Horn 
Counties,  8  Wyo.  1,  54  Pac.  1073. 

199  In   re  House    Bill   No.    231,    9 
Colo.    624;    Orange    County    v.    Los 
Angeles  County,  114  Cal.  390;    San 
Diego  County  v.  Riverside  County, 
125  Cal.  495;  Clay  County  v.  Chick- 
asaw  County,  76  Miss.  418;  Perkins 
County    v.    Keith    County,    58    Neb. 
323;  Jeff  Davis  County  v.  City  Nat. 
Bank,  22  Tex.  Civ.  App.  157. 

200  First  Nat.  Bank  of  Detroit  v. 
Beltrami   County   Com'rs,   77  Minn. 
43,  79  N.  W.  591. 

201  State  v.  Browne,  56  Minn.  269, 
57  N.  W.  659;   Town  of  Rutland  v. 
Town  of  West  Rutland,  68  Vt.  155, 
34    Atl.    422;    Town    of    Ackley    v. 
Town  of  Vilas,   79  Wis.  157,  48  N. 
W.  257.    See,  also,  cases  cited  under 
preceding  section. 


86 


CORPORATE  LIFE;  EXISTENCE. 


§  48 


out  of  another  shall  be  liable  for  a  just  proportion  of  existing 
debts,  do  not  have  the  power  to  determine  such  proportion.  It 
is  held  that  this  is  a  legislative  question.  It  is  for  the  legislature 
to  either  itself  determine  what  this  proportion  shall  be  or  to 
establish  a  rule  or  basis  for  the  division,202  and  where  an  act  of 
division  imposes  what  seems  to  be  a  disproportionate  part  of  the 
liabilities  or  burdens,  the  courts  have  no  power  to  inquire  and 
adjust  the  obligations  upon  a  different  basis.203 

§  48.    Agency  of  apportionment. 

As  already  suggested,  the  basis  of  division  or  apportionment 
of  debts  and  property  of  a  portion  of  the  territory  divided  or 
annexed  may  be  fixed  by  the  legislature  in  the  authority  given 
for  such  action,  or  it  may  provide  for  the  appointment  of  a  board, 
or  place  upon  some  existing  official  body  the  burden  and  duty  of 
determining  this  question.  In  some  instances  it  is  left  to  an  exist- 
ing judicial  body;204  in  others  the  apportionment  is  determined 
by  a  board  ministerial  or  executive  in  its  character.205  It  is 
usually  held  that  a  duty  thus  devolving  upon  these  officers  or 


202  Orange  County  v.  Los  Angeles 
County,  114  Cal.  390;  County  of  Tu- 
lare  v.  Kings  County,  117  Cal.  195, 
49  Pac.  8;  Town  of  Granby  v.  Thurs- 
ton,  23  Conn.  416;  Queens  County  v. 
City  of  New  York,  48  App.  Div.  337, 
62    N.    Y.     Supp.    1047;     Sedgwick 
County  Com'rs   v.  Bunker,  16  Kan. 
498;    Sharp's  Ex'r   v.    Dunavan,    56 
Ky.  (17  B.  Mon.)  223;  Stone  v.  City 
of  Charlestown,  114  Mass.  214;  Mor- 
row County  v.  Hendryx,  14  Or.  397. 

203  State  v.  City  of  Mobile,  24  Ala. 
701;   Smith  v.  Village  of  Adrian,  1 
Mich.    495;     City    of    Baltimore    v. 
State,  15  Md.  376;  Sill  v.  Village  of 
Corning,    15   N.   Y.    297;    People   v. 
Draper,    15    N.    Y.    532;     Lowe    v. 
Hardy,   7   Utah,   368,   26   Pac.   982; 
Town  of  Montpelier  v.  Town  of  East 
Montpelier,  29  Vt.  12. 

204  Fairfield  v.  Rural  Independent 
School   Dists.,   Ill   Fed.   108;    Bing- 
ham   County  v.  Bannock  County,  5 


Idaho,  627,  51  Pac.  769;  Town  of 
Jamaica  v.  Town  of  Vance,  96  111. 
App.  598;  In  re  Lent,  16  Misc.  606, 
40  N.  Y.  Supp.  570;  Forest  County 
v.  Langlade  County,  76  Wis.  605. 

205  Los  Angeles  County  v.  Or- 
ange County,  97  Cal.  329,  32  Pac. 
316;  Elmore,  Logan  &  Bingham 
Counties  v.  Alturas  County,  4  Idaho, 
145,  37  Pac.  349;  District  Tp.  of 
Viola  v.  District  Tp.  of  Audubon,  45 
Iowa,  104;  Independent  Dist.  of  Cor- 
with  v.  District  Tp.  of  Lu  Verne, 
107  Iowa,  73,  77  N.  W.  525;  Gould- 
ing  v.  Inhabitants  of  Peabody,  170 
Mass.  483;  Marathon  Tp.  v.  Oregon 
Tp.,  8  Mich.  372;  School  Dists.  No. 
17  &  24,  Kearney  County  v.  School 
Dists.  No.  2  &  18,  17  Neb.  177;  Bor- 
ough of  Carlstadt  v.  Township  Com- 
mittee of  Bergen,  60  N.  J.  Law,  360, 
37  Atl.  612;  State  v.  McMillan,  52  S. 
C.  60,  29  S.  E.  540. 


§  49 


TERRITORIAL  CHANGES. 


87 


bodies  is  a  continuing  one,  and  their  refusal  to  perform  such 
duty  does  not  defeat  or  impair  the  rights  of  parties  intended  by 
the  legislature  to  be  established  in  this  way.208  Neither  will  man- 
damus lie  to  compel  the  performance  of  such  duty  by  them.207 
But  after  such  agency  performs  its  duties,  its  authority  may  be 
exhausted.208  The  authority  of  boards  whose  duty  it  is  to  ascer- 
tain the  amount  of  the  debt  at  a  certain  time,  and  apportion  it, 
is  limited  to  what  might  be  termed  purely  clerical  duties.  They 
have  no  power  or  authority  to  pass  upon  and  determine  the 
validity  of  indebtedness,203  and  in  the  absence  of  fraud  or  mis- 
take their  action  is  final  and  will  not  be  disturbed,210  though  ques- 
tions of  law  may  be  passed  upon  after  appeal  to  the  courts.211 

§  49.    Character  or  form  of  indebtedness. 

The  indebtedness  or  obligations  of  territory  divided  often 
assumes  a  different  legal  character  or  form.  It  may  consist  of 
an  issue  of  valid  outstanding  negotiable  bonds;212  or  what  can 


2oeElmore,  Logan  &  Bingham 
Counties  v.  Alturas  County,  4  Idaho, 
145,  37  Pac.  349;  People  v.  Town  of 
Oran,  121  111.  650,  13  N.  E.  726;  Dis- 
trict Tp.  of  Franklin  v.  Wiggins,  110 
Iowa,  702,  80  N.  W.  432;  School 
Dist.  No.  46  of  Douglas  County  v. 
School  Dist.  No.  53,  49  Neb.  33. 

207  Town   of   Enterprise   v.    State, 
29   Fla.  128;    McCormick  v.  People, 
139   111.   499;    State  v.   Kolsem,   130 
Ind.   434;    In  re   Haynes,   54   N.   J. 
Law,  6;    Lewis  v.   Moore,   54   N.  J. 
Law,   121;    Township  Committee  of 
Lakewood   v.    Township    Committee 
of  Brick,  55  N.  J.  Law,  275,  26  Atl. 
91;   People  v.  Ulster  County  Sup'rs, 
94  N.  Y.  263;  Vance  County  Com'rs 
v.  Granville  County  Com'rs,  107  N. 
C.  291. 

208  Riverside  County  v.   San  Ber- 
nardino County,  134  Cal.  517,  66  Pac. 
788. 

209  Blaine  County  v.  Smith,  5  Ida- 
ho, 255,  48  Pac.  286;  Blaine  County 
v.  Lincoln  County,  6  Idaho,  57,   52 
Pac.  165;   State  v.  McNutt,  87  Wis. 


277,  58  N.  W.  389;  In  re  Fremont  & 
Big  Horn  Counties,  8  Wyo.  1,  54 
Pac.  1073. 

210  Canyon  County  v.  Ada   Coun- 
ty, 5  Idaho,  686,  51  Pac.  748;  Blaine 
County  v.  Lincoln  County,  6  Idaho, 
57,  52  Pac.  165;  Vose  v.  Inhabitants 
of  Frankfort,  64  Me.  229;   Borough 
of  Dunmore's  Appeal,  52  Pa.  374;  In 
re    School    Directors    of    Aliquippa, 
172    Pa.    81;    Town    of   Rutland   v. 
Town  of  West  Rutland,  68  Vt.  155. 
34  Atl.  422. 

211  Inhabitants   of   Tisbury   v.  In- 
habitants    of    West     Tisbury,     171 
Mass.  201,  50  N.  E.  522. 

2i2Hackett  v.  City  of  Ottawa,  99 
U.  S.  86;  Scipio  v.  Wright,  101  U. 
S.  665;  Ottawa  v.  First  Nat.  Bank, 
105  U.  S.  342;  Carter  County  v.  Sin- 
ton,  120  U.  S.  517;  Comanche  Coun- 
ty v.  Lewis,  133  U.  S.  201;  Harper 
County  Com'rs  v.  Rose,  140  U.  S. 
75;  Barnett  v.  City  of  Denison,  145 
U.  S.  135;  Morgan  v.  Town  of  Wald- 
wick,  17  Fed.  286;  Hill  v.  City  of 
Kahoka,  35  Fed.  32;  Ashley  r. 


CORPORATE  LIFE;  EXISTENCE. 


§  49 


be  termed,  for  want  of  a  better  phrase,  "floating  indebted- 
ness";213 or  again  the  obligation  may  exist  as  the  result  of  a  con- 
tract, claim  or  subscription  payable  at  some  future  time,214  or  a 
liability  existing  as  the  result  of  a  tort.215  The  cases  cited  in 
the  notes  under  these  various  propositions  suggest  the  different 
rulings  made,  but  the  basic  principles  of  division  remain  as  given 
in  the  preceding  sections. 

In  apportioning  the  floating  indebtedness  to  be  paid  by  re- 
spective portions  of  detached  territory,  questions  may  arise  as 
to  what  constitutes  floating  indebtedness.  Accrued  interest  upon 
indebtedness,  it  is  generally  held,  should  be  divided  or  appor- 


Presque  Isle  County  Sup'rs,  60  Fed. 
62;  Pacific  Imp.  Co.  v.  City  of 
Clarksdale,  74  Fed.  528;  Taylor  v. 
School  Dist.  of  Garfield,  97  Fed. 
753;  D'Esterre  v.  City  of  New  York, 
104  Fed.  605;  Garland  County  v. 
Hot  Spring  County,  68  Ark.  83;  Co- 
conino  County  v.  Yavapai  County 
(Ariz.)  52  Pac.  1127;  Johnson  v. 
City  of  San  Diego,  109  Cal.  468; 
County  of  Tulare  v.  Kings  County, 
117  Cal.  195,  49  Pac.  8;  State  v.  Su- 
wannee  County  Com'rs,  21  Fla.  1; 
Marion  County  Com'rs  v.  Harvey 
County  Com'rs,  26  Kan.  181;  State 
v.  Kiowa  County  Com'rs,  41  Kan. 
630;  Craft  v.  Lofinck,  34  Kan.  365; 
Vandriss  v.  Hill,  58  Kan.  611; 
Hodgeman  County  Com'rs  v.  Garfield 
County  Com'rs,  42  Kan.  409,  22  Pac. 
430;  Montgomery  County  v.  Menefee 
County  Ct.,  93  Ky.  33,  18  S.  W.  1021; 
Rumsey  v.  Town  of  Sauk  Centre,  59 
Minn.  316,  61  N.  W.  330;  Canosia  Tp. 
v.  Grand  Lake  Tp.,  80  Minn.  357,  83 
N.  W.  346;  Holliday  v.  Sweet  Grass 
County,  19  Mont.  364,  48  Pac.  553; 
Ter.  v.  Cascade  County  Com'rs,  8 
Mont.  396,  20  Pac.  809;  Clother  v. 
Maher,  15  Neb.  1;  Sierra  County 
Com'rs  v.  Dona  Ana  County  Com'rs, 
5  Gild.  (N.  M.)  190,  21  Pac.  83;  Peo- 
ple v.  Coler,  26  Misc.  327,  56  N.  Y. 
Bupp.  1072;  Jeff  Davis  County  v. 


City  Nat.  Bank,  22  Tex.  Civ.  App. 
157,  citing  Presidio  County  v.  City 
Nat.  Bank,  20  Tex.  Civ.  App.  511,  44 
S.  W.  1069. 

213  Colusa  County  v.  Glenn  County, 
117  Cal.  434,  49  Pac.  457;  In  re  House 
Bill  No.  122,  9  Colo.   639;   Town  of 
Cicero  v.  Hill,  193  111.  226;  Knoxville 
Nat.   Bank  v.   Independent  Dist.   of 
Washington,  40  Iowa,  612;   Bradish 
v.  Lucken,   38  Minn.  230,  36  N.  W. 
454;  Holliday  v.  Sweet  Grass  Coun- 
ty, 19  Mont.  364,  48  P.  553;   Inhab- 
itants of  Lodi  v.   Hackensack  Imp. 
Commission,   60   N.    J.   Eq.    229,   46 
Atl.  782;  Lawrence  County  v.  Meade 
County,  6  S.  D.  528,  62  N.  W.  131; 
Knight  v.  Town  of  Ashland,  65  Wis. 
166. 

214  Hempstead  County  v.   Howard 
County,   51  Ark.  344.     See  Garland 
County   v.    Hot    Spring   County,    68 
Ark.   83,   as  to  costs  in   mandamus 
proceeding.      Nez    Perce    County    v. 
Latah  County,   3   Idaho,  413;   Hens- 
ley  Tp.  v.  People,  84  111.  544;  Queens 
County    v.    City    of   New    York,    48 
App.  Div.  337,  62  N.  Y.  Supp.  1047; 
Grant  County   v.    Lake   County,   17 
Or.  453;    Potter  v.  Black,  15  Wash. 
186,  45  Pac.  787. 

21  s  Barber  v.  City  of  East  Dallas, 
83  Tex.  147,  18  S.  W.  438. 


§   50  TERRITORIAL  CHANGES.  89 

tioned  on  the  same  basis  as  the  principal,216  though  some  cases 
hold  to  the  contrary.217 

Cash  in  the  treasury  of  an  organization,  portions  of  which  have 
been  detached,  or  credits  resulting  from  taxation  or  some  claim, 
should  not  be  deducted  before  determining  the  amount  of  the 
indebtedness  to  be  apportioned.218  The  rule  seems  to  be  that 
the  principal  of  the  indebtedness  should  be  adjusted  and  credit 
items  treated  as  property  to  be  divided  in  the  same  proportion, 
leaving  it  to  the  different  organizations  to  apply  these  credits 
as  they  may  elect,  either  upon  the  debt  assigned  to  them  or  in 
the  payment  of  current  expenses.  It  is  further  held  that  an  obli- 
gation, in  order  to  be  considered  a  "debt,"  need  not  be  due  and 
payable  at  the  time  of  the  division.  The  existence  of  an  obliga- 
tion is  the  determining  question,  not  its  due  date. 

In  a  Maine  case  it  was  held  that  where  the  statute  dividing  the 
town  provided  for  the  assumption  of  certain  indebtedness,  a  sub- 
sequent statute  exonerating  the  new  town  from  this  liability  was 
unconstitutional,  as  it  impaired  the  obligation  of  the  contract  cre- 
ated by  the  original  act.219 

§  50.    Division  of  assets. 

Equally  important  with  the  adjustment  and  apportionment  of 
the  debts  and  liabilities  of  territory  divided  or  rearranged  is  the 
division  of  assets  belonging  to  the  old  or  the  different  organiza- 
tions. They  are  usually  acquired  through  the  expenditure  of 
moneys  raised  by  the  levy  of  taxes  upon  property  within  its 
jurisdiction.  These  moneys  may  be  expended  in  the  construc- 
tion of  public  buildings  located  within  a  certain  portion  of  the 
organization.  Territory  forming  an  old  corporation  has  been 
subject  to  the  levy  of  taxes  for  the  erection  of  these  buildings,220 

2ie  Hempstead  County  v.  Howard        220  School  Dist.  No.  2,  Ford  Coun- 

County,  51  Ark.  344.  ty,  v.  School  Dist.  No.  4,  16  111.  App. 

217  Garland  County  v.  Hot  Spring  651;   Heizer  y.  Yohn,  37  Ind.  415; 
County,  68  Ark.  83.  District  Tp.  of  Williams  v.  District 

218  Cheyenne     County     Com'rs    v.  Tp.  of  Jackson,  36  Iowa,  216;   Way 
Bent  County  Com'rs,  15  Colo.  320;  v.  Fox,  109  Iowa,  340;  Board  of  Ed- 
Forest  County  v.  Langlade  County,  ucation  of  Topeka  v.  State,  64  Kan. 
91  Wis.  543,  63  N.  W.  760,  65  N.  W.  6,  67  Pac.   559;    Trustees  of  Public 
182.  Schools  v.  Yazoo  City  Library  Ass'n 

219  Bowdoinham    r.    Richmond,    6  (Miss.)    12    So.   30;    Inhabitants   of 
Me.   (6  Greenl.)   112.  First  Parish  in  Medford  v.  Pratt,  21 


90 


CORPORATE  LIFE;  EXISTENCE. 


§   50 


and  in  the  process  of  division  part  is  deprived  of  the  use  of  this 
property.  Here,  as  in  all  cases  affecting  the  organization,  powers, 
obligations  and  property  of  public  corporations,  the  authority 
exists,  without  question,  in  the  legislature  to  provide  an  equitable 
adjustment.221  Public  property  may  consist  not  only  of  build- 
ings erected  for  public  use,  but  moneys,222  taxes  in  process  of 
collection,228  credits,224  real  estate,  other  than  buildings,225  claims, 


Mass.  (4  Pick.)  221;  State  v.  School 
Dist.  No.  21,  6  N.  D.  488,  71  N.  W. 
772;  Mills  County  v.  Brown  County, 
87  Tex.  475;  State  v.  Frost,  103 
Tenn.  685. 

221  State  v.  Votaw,  8  Blackf. 
(Ind.)  2.  Cases  collected  in  11  Am. 
&  Eng.  Corp.  Cas. 

222Evins  T.  Batchelor,  61  Ark. 
521;  County  of  Kings  v.  County  of 
Tulare,  119  Cal.  509;  Washington 
County  v.  Weld  County,  12  Colo. 
152;  Cooke  v.  School  Dist.  No.  12 
of  Logan  County,  12  Colo.  453;  Town 
of  Jamaica  v.  Town  of  Vance,  96  111. 
App.  598;  Johnson  v.  Smith,  64  Ind. 
275;  Towle  v.  Brown,  110  Ind.  599, 
10  N.  E.  628;  District  Tp.  of  Jasper 
v.  District  Tp.  of  Sheridan,  47  Iowa, 
183. 

Crawford  County  Com'rs  v.  Mar- 
ion County  Com'rs,  16  Ohio,  466. 
When  county  lines  are  changed  the 
county  acquiring  additional  terri- 
tory is  not  entitled  to  demand  from 
the  county  losing  this  territory  any 
portion  of  the  funds  in  the  treasury. 

Inhabitants  of  Harrison  v.  Inhab- 
itants of  Bridgeton,  16  Mass.  16; 
People  v.  Hodge,  4  Neb.  265;  Land, 
Log  &  Lumber  Co.  v.  Oneida  Coun- 
ty, 83  Wis.  649. 

223  School  Dist.  No.  15  v.  School 
Dist.  of  Waldron,  63  Ark.  433;  Coun- 
ty of  Colusa  v.  County  of  Glenn,  124 
Cal.  498;  San  Diego  County  v.  Riv- 
erside County  (Cal.)  55  Pac.  7; 
Morgan  County  Com'rs  v.  Hendricks 
County  Com're,  32  Ind.  234;  Cheat- 


ham  County  v.  Dickson  County 
(Tenn.  Ch.  App.)  39  S.  W.  734; 
Reeves  County  v.  Pecos  County,  69 
Tex.  177,  7  S.  W.  54;  Hardeman 
County  v.  Foard  County,  19  Tex. 
Civ.  App.  212,  47  S.  W.  30,  536. 

22*  School  Directors  of  Pelican 
County  v.  School  Directors  of  Rock 
Falls,  81  Wis.  428.  The  word  "cred- 
its" as  used  in  the  phrase  "just 
share  of  credits"  held  not  to  in- 
clude "school  sites,  school  houses, 
furniture,  and  fixtures,  the  value 
thereof,  or  any  tangible  property 
whatever." 

225  Justices  of  Marshall  County 
Ct.  T.  Justices  of  Galloway  County 
Ct.f  65  Ky.  (2  Bush)  93;  West  Car- 
roll Parish  v.  Gaddis,  34  La.  Ann. 
928;  People  v.  Ryan,  19  Mich.  203; 
Clement  v.  Everest,  29  Mich.  19. 
The  last  two  cases  also  consider  the 
question  of  apportionment  of  debts. 
Buena  Vista  Board  of  Health  v. 
City  of  East  Saginaw,  45  Mich.  257; 
Simmons  v.  Inhabitants  of  Nahant, 
85  Mass.  (3  Allen)  316;  Lakin  v. 
Ames,  64  Mass.  (10  Gush.)  198;  In- 
habitants of  Wrentham  v.  Inhab- 
itants of  Norfolk,  114  Mass.  555; 
Richardson  v.  Brown,  6  Me.  (6 
Greenl.)  355;  Inhabitants  of  Poland 
v.  Strout,  19  Me.  121;  Craven  Coun- 
ty Com'rs  v.  Pamlico  County  Com'rs, 
73  N.  C.  298. 

Greenville  v.  Mason,  53  N.  H.  515. 
This  case  in  common  with  many 
others  holds  that  no  property,  real 
or  personal,  of  the  original  town, 


50 


TERRITORIAL  CHANGES. 


91 


miscellaneous  personal  property,226  or  public  improvements.227 
The  rules  adopted  by  the  legislature  and  the  courts  for  the  divi- 
sion of  this  property  are  much  the  same  as  those  applied  in  the 
adjustment  or  apportionment  of  the  debt.228  If  the  debt  has  been 
contracted  solely  in  the  erection  of  public  buildings  or  the  ac- 
quirement of  other  property,  it  is  "just  and  equitable"  that  the 
locality  retaining  this  property  should  assume  all  the  debt.229  If, 
on  the  other  hand,  property  is  divided  among  the  different  por- 
tions of  territory,  it  is  "just  and  equitable"  that  these  should  be 
charged  with  a  proportionate  amount  of  the  liabilities  contracted 


falls  to  the  new  corporation  unless 
located  within  its  boundaries,  ex- 
cept as  expressly  provided  in  the 
act  of  division. 

Brown  County  v.  Rock  County,  51 
Neb.  277,  70  N.  W.  943;  Sanbornton 
v.  Tilton,  55  N.  H.  603;  Seabrook  v. 
Fowler,  67  N.  H.  428,  30  Atl.  414; 
Town  of  North-Hempstead  v.  Town 
of  Hempstead,  2  Wend.  (N.  Y.)  109: 
Craven  County  Com'rs  v.  Pamlico 
County  Com'rs,  73  N.  C.  298;  Appeal 
of  School  Dist.  of  Aleppo,  96  Pa. 
76;  Kuhn  v.  Board  of  Education,  4 
W.  Va.  499,  discussing  the  effect  of 
division  on  title  to  property  and 
liability  for  debts;  Town  of  Mil- 
waukee v.  City  of  Milwaukee,  12 
Wis.  102;  State  v.  Rice,  35  Wis.  178. 

22epresque  Isle  County  Sup'rs  v. 
Thompson,  10  C.  C.  A.  154,  61  Fed. 
914;  Independent  School  Dist.  of 
Georgia  v.  Independent  School  Dist. 
of  Victory,  41  Iowa,  321;  Goulding 
v.  Inhabitants  of  Peabody,  170  Mass. 
483,  49  N.  E.  752;  State  v.  Bunker, 
59  Me.  366;  School  Dist.  No.  20  in 
Chester  v.  Pierce,  69  Vt.  317,  31  Atl. 
783;  School  Directors  of  Ashland  v. 
City  of  Ashland,  87  Wis.  533;  Hall 
v.  Baker,  74  Wis.  118. 

In  re  Fremont  County,  8  Wyo.  1, 
54  Pac.  1073.  Delinquent  taxes 
should  be  computed  as  an  asset  at 


their  value  only  and  not  at  the  ag- 
gregate amount  on  the  rolls;  neither 
should  taxes  levied  for  special  pur- 
poses be  considered. 

227  Almand  v.  Atlanta  Consol.  St. 
R.  Co.,  108  Ga.  417. 

228  state  v.  Harshaw,  73  Wis.  211; 
State  v.   Weingarten,   92  Wis.   599; 
State  v.  Taylor,  94  Wis.  267,  68  N. 
W.    953;    State    v.    Maik,    113    Wis. 
239,  89  N.  W.  183.     See,  also,  §  46. 

220  Gilliam  County  v.  Wasco  Coun- 
ty, 14  Or.  525;  Laramie  County 
Com'rs  v.  Albany  County  Com'rs,  92 
U.  S.  307;  Eagle  v.  Beard,  33  Ark. 
497;  People  v.  School  Trustees,  86 
111.  613;  Reckert  v.  City  of  Peru, 
60  Ind.  473;  Board  of  Education  of 
Topeka  v.  State,  64  Kan.  6,  67  Pac. 
559;  Inhabitants  of  Windham  v.  In- 
habitants of  Portland,  4  Mass.  384; 
Richards  v.  Dagget,  4  Mass.  539; 
Minot  v.  Curtis,  7  Mass.  441;  Inhab- 
itants of  Hampshire  County  v.  In- 
habitants of  Franklin  County,  16 
Mass.  76;  Inhabitants  of  North  Yar- 
mouth v.  Skillings,  45  Me.  133;  In- 
habitants of  Frankfort  v.  Inhab- 
itants of  Winterport,  54  Me.  250; 
McCully  v.  Board  of  Education  of 
Ridgefield  Tp.,  63  N.  J.  Law,  18,  42 
Atl.  776;  City  of  Brownwood  v.  Noel 
(Tex.  Civ.  App.)  4*  S.  W.  1014. 


92  CORPORATE  LIFE;  EXISTENCE.  §   51 

for  its  acquisition.230  The  principles  touching  the  division  of 
liabilities  in  case  of  their  contraction  for  current  expenses,  or 
where  the  result  is  not  in  existence  at  the  time  of  the  division, 
have  already  been  discussed. 

§  51.    Agency  for  division  of  assets. 

Property  may  be  divided,  as  in  the  case  of  apportionment  of 
debts  or  liabilities,  by  the  legislature  in  the  act  authorizing  the 
division,231  or  it  may  be  left  to  a  local  commission,  who  proceed 
in  the  same  manner,  whose  duties  are  substantially  the  same,  and 
whose  official  and  legal  character  is  in  all  respects  similar  to  like 
bodies  appointed  for  the  adjustment  of  debts  or  liabilities.  It 
seems,  however,  to  be  the  rule  that  the  authority  should  desig- 
nate the  agency  by,  and  the  manner  in  which,  the  property  is  to 
be  apportioned;232  though  in  Tennessee  it  is  held  that  in  the 
absence  of  legislative  provision  the  portions  of  divided  territory 
will  hold  in  severalty  for  public  purposes  the  public  property 
which  falls  within  their  limits.233 

The  power  to  levy  taxes,  granted  in  varying  degrees  to  different 
portions  of  divided  territory,  upon  division,  seems  to  remain,  as 
to  any  particular  purpose,  not  less  than  as  originally  existing.23* 
And  in  apportionment  of  taxes  levied  and  collected  by  the  state 
authorities  prior  to  the  division  of  territory,  the  cases  seem  to 
hold  that  the  officers  of  the  state  should  separate  the  equalized 
valuation,  if  that  is  the  basis  for  apportioning  the  debts  and  lia- 
bilities, and  assign  the  taxes  to  the  different  portions  of  the 

zso  inhabitants    of    Orvil    v.    Bor-  233  Prescott   v.    Town   of   Lennox, 

ough    of   Woodcliff,    64    N.    J.    Law,  100  Tenn.  591. 

286,  45  Atl.  686.  234  Board  of  Councilmen  of  Frank- 

23!  Town   of  Jamaica  v.   Town  of  fort  v   Mason  &  Foard  Counties,  18 

Vance,    96    111.   App.    598;    State    v.  Ky   L   R   543   37  s   w   290 

Votaw,  8  Blackf    (Ind)   2;   Love ,  y.  Richardg                        4  M&gg    ^ 

Schenck,   34   N.  C.    (12   Ired.)    304;  A  yote  tQ  raise  m(mey  for  the 

Putnam   County  Com'rs  v.  Auditor  Qf  constructi        a  new  gcnool 

of    Allen   County,   1   Ohio    St.    323;  jg  annu,led  by  the  division  Qf  tfae 

Greenville  v.  Mason,  53  N^  ]  [.  515;  territory   tnug   yotingj   &nd   ^   &g 

Baker  County  v.  Benson,  40  Or.  207,  sesgment  cannot  be                 made 
66  Pac.   815;   Land,  Log  &  Lumber 

Co.  v.  Oneida  County,  83  Wis.  649.  But  see  contra>  Pe°Ple  v'  ChIcaS° 
See  sec  46  &  A.  R.  Co.,  172  111.  71,  and  Fender 

232  Gregg  v.  French,  67  Minn.  402,    v-  Neosho  Falls  TP-  22  Kan-  305« 
69  N.  W.  1102. 


§  52  NAME  AND   BOUNDARIES.  93 

divided  territory  in  proportion  to  the  valuation  of  the  property 
therein.235 

Officers  of  the  new  organization,  whose  legal  duty  it  is  to  collect 
taxes,  have  no  power  to  collect  those  previously  levied  by  the  old 
corporation.238 

III.  CORPORATE  NAME  AND  BOUNDARIES. 
§  52.    Existence  of  a  public  corporation. 

The  precise  time  when  the  steps  necessary  to  the  legal  existence 
of  a  public  corporation  have  been  completed  may  be  important  in 
determining  rights  of  third  parties  against  the  territory  included 
within  its  limits  or  its  own  rights  and  powers.  The  necessity  for 
a  valid  organization  also  exists  that  a  corporation  may  legally 
perform  its  governmental  duties  and  exercise  its  powers.287  A 
futile  attempt  to  organize  a  corporation  of  a  lower,  it  has  been 
held,  does  not  prevent  the  organization  of  one  of  a  higher,  grade.238 
The  rule  also  seems  to  be  that  a  town  incorporated  under  an  act 
held  unconstitutional,  thereafter  has  no  legal  existence,  and  a 
judgment  against  it  is  a  mere  nullity,239  though  it  will  be  con- 
sidered a  de  facto  town  from  the  time  of  its  attempted  organiza- 
tion until  the  law  is  declared  unconstitutional,  and  the  acts  of 
its  officers,  the  acts  of  de  facto  officers,  binding  between  third  par- 
ties dealing  with  them  as  public  officials,240  and  also  for  the  pur- 
pose of  enforcing  liabilities  against  the  corporation  contracted 
during  its  existence  as  a  de  facto  organization.241  If  the  authority 
for  the  organization  of  a  public  corporation  provides  for  the 
election  or  appointment  of  certain  officials  before  it  can  legally 
exist,  the  requirements  of  the  law  in  this  respect  must  be  fol- 
lowed,242 though  some  cases  hold  a  failure  in  this  respect  will  not 

235  Auditor  General  v.  Menomlnee    13  So.  261;  State  v.  Tucker,  48  Mo. 
County  Sup'rs,  89  Mich.  552.  App.  531;  Watson  v.  Corey,  6  Utah, 

236  state    v.    Clevenger,    27    Neb.    150. 

422,  43  N.  W.  243.  239  Colton  v.  Rossi,  9  Cal.  595. 

237  people  v.  Morrow,  181  111.  315;  240  Riley  v.  Garfield  Tp.,  58  Kan. 
State  v.  Arnold,  38  Ind.  41;  City  of  299,    49    Pac.    85;    Town   of  Winne- 
Guthrie  v.  Wylie,  6  Okl.  61;  City  of  conne  v.  Village  of  Winneconne,  111 
Guthrie  v.  Ter.,  1  Okl.  188,  31  Pac.  Wis.  13,  86  N.  W.  590. 

190;    Gilkey  v.   Town   of  How,   105        241  white  v.  City  of  Quanah  (Tex. 
Wis.  41.  Civ.  App.)  27  S.  W.  839. 

zss  Butler  v.  Walker,  98  Ala.  358,        242  Keating    v.    Marble,    39    Kan. 


94  CORPORATE  LIFE;  EXISTENCE.  §  53 

invalidate  the  organization.248  The  words  "be,  and  the  same 
hereby  is  incorporated,"  do  not  alone  indicate  an  intention  on 
the  part  of  the  legislature  that  the  corporation  should  take  imme- 
diate effect  as  against  a  general  law  that  public  acts  shall  not 
take  effect  until  thirty  days  after  the  session  of  the  legislature, 
unless  otherwise  provided.244  Corporate  existence  will  not  be 
presumed  from  the  registration  of  a  municipal  charter,  when, 
under  the  code,  it  is  necessary  that  the  charter  shall  be  certified 
before  it  is  registered.245 

§  53.    Name  of  the  corporation. 

The  existence  of  a  public  corporation  presupposes  a  legal  name, 
acquired  in  the  proceedings  incorporating  it  or  by  custom,246 
under  which  it  exercises  its  powers,  performs  its  duties,  and  which 
it  uses  in  assuming  liabilities  and  contracting  obligations. 

The  rule  as  to  the  use  of  the  name  by  the  corporation  is  sub- 
stantially that  relating  to  private  individuals.  A  mere  misnomer 
mil  not  invalidate  proceedings  nor  defeat  rights.  The  essential 
fhing  is  identity,247  and  if  the  name  used  in  either  a  contract 
or  a  devise  or  grant  to  the  corporation  sufficiently  describes  and 
identifies  it,  it  will  be  sufficient,  although  it  may  not  be  the  pre- 
cise and  technical  name.248  The  use  of  the  correct  legal  name  in 

370,  18  Pac.  189;   Behr  v.  Willard,  Town  of  Rye,  7  Taunt.  546;  Clement 

XI  Neb.  601;  Campbell  v.  Wainright,  v.    City   of    Lathrop,    18    Fed.    885; 

«)  N.  J.  Law,  555,  14  Atl.  603;  Gil-  People  v.  Potter,  35  Gal.  110;  People 

key  v.  Town  of  How,  105  Wis.  41.  v.  Pike,  197  111.  449;  State  v.  Wood- 

2*3Rousey  v.  Wood,   63  Mo.  App.  bury,  76  Me.  457;  People  v.  Runkle, 

*60.  9  Johns.   (N.  Y.)  147;   State  v.  Hol- 

2"  Inhabitants  of   Gorham   v.   In-  lis,  59  N.  H.  390;  Berks  &  D.  Turn- 

babitants  of  Springfield,  21  Me.  58;  pike  Road  v.   Myers,  6  Serg.   &  R. 

Cooper  v.  Curtis,  30  Me.  488.  (Pa.)   12;    2  Kent,  Comm.  292;   Dil- 

2*B  State  v.  Frost,  103  Tenn.  685.  Ion,    Mun.    Corp.    (4th   Ed.)    §    180. 

**6  See  Knight  v.   Mayor,   etc.,  of  But  see  Sweetwater  County  Com'rs 

Wells,    1    Ld.    Raym.    80;    City    of  v.  Young,  3  Wyo.  684,  29  Pac.  1002, 

Gainesville  v.  Caldwell,  81  Ga.  76;  and   Boon  v.   Town  of  Jackson,   98 

Johnson  v.  Common  Council  of  In-  Ga.  490. 

dianapolis,    16    Ind.    227;    Neely   v.  243  Case  of  Mayor,  etc.,  of  Lynne 

Yorkville,  10  S.  C.   (10  Rich.)    141;  Regis,    10    Coke,    120;    Dr.    Ayray's 

Richards  v.  Town  of  Clarksburg,  30  Case,   11  Coke,   18b;   Rex  v.   Inhab- 

W.  Va.  491.  itants  of  Haughley,  4  Barn.  &  Adol. 

247  University  of  Oxford's  Case,  10  650;   Croydon  Hospital  v.  Farley,  6 

Coke,  53b,  57b;   Foster  v.  Walter,  1  Taunt.  467;   University  of  Oxford's 

Cro.  Eliz.  106;   Attorney  General  v.  Case,  10  Coke,  53b,  57b;  Inhabitants 


§   54  NAME   AND   BOUNDARIES.  95 

actions  is  more  strictly  insisted  upon.249  The  legislature  may, 
at  its  pleasure,  subject  to  statutory  or  constitutional  restrictions, 
change  the  name  of  a  public  corporation,  but  its  identity  for  the 
purpose  of  enforcing  obligations  will  not,  by  such  action,  be 
destroyed.250  The  change  of  name  may  be  effected  by  an  alter- 
ation in  the  grade  of  organization  or  by  special  act.  In  Kansas 
it  is  held  that  such  change  carries  with  it  a  change  of  the  legal 
title  from  "the  inhabitants,  etc.,"  to  "the  city,  etc."251  The  new 
name  sought  must  not  be  misleading. 

§  54.    The  seal  and  its  use. 

The  law  regarding  the  use  of  a  seal  by  a  corporation,  either 
public  or  private,  has  changed  materially  in  recent  years,  the  rea- 
sons evidently  being  the  same  leading  to  a  change  in  the  law  as 
to  the  use  of  a  seal  by  natural  persons.  Formerly  the  corporation 
"spoke"  through  its  seal.  A  contract  or  other  instrument  to 
be  valid  must  have  had  the  corporate  seal  affixed  and  have  been 
attested  by  the  proper  officer.  The  rule  now  is  that  the  use  of 
the  seal  is  not  necessary  to  bind  a  corporation  except  in  those 
cases  where  this  is  directed  in  express  terms  by  the  statutes.252 

The  rule,  however,  that  an  instrument  under  seal  embodies  a 

of  First  Parish  in  Button  v.  Cole,  251  West  r.  City  of  Columbus,  20 

20  Mass.   (3  Pick.)   232;   New  York  Kan.  633. 

Inst.  for  Blind  v.  How's  Ex'rs,  10  N.  252  Bernardin    v.    North    Dufferin 

Y.    (6  Seld.)    84;    Chapin  v.  School  Municipality,  19  Can.  Sup.  Ct.  581; 

Dist.xNo.  2  in  Winchester,  35  N.  H.  Smeltzer   v.    White,    92   U.    S.    390; 

445.  X  Gordon  v.  City  of  San  Diego  (Cal.) 

2*9  City  of  Ft.  Wayne  v.  Jackson,  32  Pac.  885;  Ring  v.  Johnson  Coun- 

7  Blackf.   (Ind.)   36;  Village  of  Ro-  ty,  6  Iowa,  265;  Prescott  v.  Gonser, 

meo  v.  Chapman,  2   Mich.  179;    St.  34  Iowa,  178;  Springer  v.  Clay  Coun- 

Louis  County  Court  v.  Griswold,  58  ty,  35  Iowa,  243;  Kinzie  v.  Chicago, 

Mo.  175;   Carder  v.  Fayette  County  3  111.  (2  Scam.)  188;  Bestor  v.  Pow- 

Com'rs,  16  Ohio  St.  353;    Clarke  v.  ell,  7  111.  (2  Gilm.)  126;  Guffield  v. 

Potter  County,  1  Pa.  163;   Berks  &  Bowling  Green,  45  Ky.  (6  B.  Mon.) 

D.  Turnpike  Road  v.  Myers,  6  Serg.  224;    Geary  v.    City   of  Kansas,   61 

&  R.  (Pa.)   12.  Mo.    378;    Colman   v.   Anderson,    10 

250  Girard  v.  City  of  Philadelphia,  Mass.    105;    Inhabitants    of    Fourth 

74  U.  S.   (7  Wall.)   1;  Town  of  Mt.  School   Dist.   in  Rumford   v.  Wood, 

Pleasant  v.  Beckwith,  100  U.  S.  524.  13   Mass.   193;    Attorney  General  T. 

See,  also,  authorities  cited  under  §§  Jochim,  99  Mich.  358,  58  N.  W.  611; 

45  and  46.  City  Council  of  Charleston  v.  Moor- 
head,  12  Rich.  Law  (S.  C.)  430. 


96  CORPORATE  LIFE;  EXISTENCE.  §  55 

consideration  is  applied  to  a  contract  executed  by  a  corporation 
the  same  as  to  an  individual.253 

§  55.    Corporate  boundaries. 

From  the  discussion  of  the  subject  thus  far,  it  is  apparent  that 
the  creation  or  organization  of  a  public  corporation  consists  in 
the  setting  apart  of  a  certain  geographical  area  and  investing 
the  people  residing  within  the  limits  of  this  district  with  a  greater 
or  less  degree  of  control  over  their  local,  political,  governmental 
and  economic  conditions.  These  agencies  of  the  state  exercise 
certain  functions,  perform  certain  duties,  and  contract  certain 
liabilities.  The  existence  and  performance  of  any  or  all  of  these 
rights  and  powers  affect  not  only  the  property  but  the  persons 
of  those  coming  within  their  jurisdiction.  It  will  be  seen  there- 
fore that  there  exists  the  most  urgent  necessity  for  an  accurate 
and  definite  establishment254  of  the  boundaries  in  the  first  in- 
stance, under  due  authority  of  law,  by  the  proper  tribunal,  and 
that  if  a  subsequent  change  is  made  in  these  boundaries  the 
change  be  also  definite  and  certain,  under  authority  of  law,  and 
by  the  proper  tribunal. 

In  order  that  a  public  corporation  can  properly  perform  its 
duties  and  exercise  its  powers,  it  must  be  in  a  position  to  compel 
obedience  to  its  lawful  demands,  for,  if  any  uncertainty  exists  as 
to  the  jurisdiction  of  a  public  corporation  in  regard  to  a  particu- 
lar question,  affecting  either  persons  or  property,  it  is  clear  that 
it  cannot  compel  that  submission  which  good  government  requires. 

§  56.    Definition  of  corporate  boundaries. 

The  first  essential  to  the  existence  of  a  boundary  which  shall 
legally  limit  and  govern  the  exercise  of  jurisdiction  by  a  public 
corporation  over  persons  and  property  is  its  accurate  and  definite 
establishment  and  description,255  either  according  to  natural 

253  sturtevants  v.  City  of  Alton,  3  Adams,   56   Tenn.    (9    Heisk.)    518; 
McLean,  393,  Fed.  Cas.  No.  13,580.  Brennan  v.  City  of  Weatherford,  53 

254  Town   of   Enterprise   v.    State,  Tex.  330;   Fidelity  Ins.  Co.  v.  Shen- 
29  Fla.   128,   10   So.   740;   People  v.  andoah  Val.  R.  Co.,  32  W.  Va.  244; 
Bennett,    29    Mich.    451;    Musser   y.  Cutting  v.  Stone,  7  Vt.  471;   Pierce 
Johnson,    42    Mo.    74;    Levering    v.  r.  Carpenter,  10  Vt.  480. 

Town    of    Memphis,    26    Tenn.     (7        255  state  of  Rhode  Island  v.  State 
Humph.)    553;    City  of  Memphis  v.    of   Massachusetts,   4   How.    (U.    S.) 


§  56 


NAME   AND   BOUNDARIES. 


97 


boundaries,  which  are  in  themselves  definite  and  certain,  or  line* 
properly  surveyed. 

The  defining  of  a  boundary  line  by  some  natural  physical  fea- 
ture easily  falls  into  a  four-fold  division:  Ocean  and  tributary 
waters  at  high  or  low  tide;236  the  channel  of  a  navigable  stream;267 


591,  fixing  the  boundary  line  be- 
tween Massachusetts  and  Rhode 
Island;  Edson  v.  Crangle,  62  Ohio 
St.  49,  determining  the  northern 
boundary  line  between  the  United 
States  and  Canada  contiguous  to  the 
state  of  Ohio. 

256  The  Pea  Patch  Island  Case,  1 
Wall.  Jr.  Append.  IX,  Fed.  Gas.  No. 
18,311;  Smith  v.  Skagit  County 
Com'rs,  45  Fed.  725;  The  Atlantic, 
1  Ware,  121,  Fed.  Cas.  No.  621.  The 
Bay  of  Passamaquoddy  held  common 
for  purposes  of  navigation.  City  of 
San  Diego  v.  Granniss,  77  Cal.  511, 
and  Fisher  v.  San  Diego  Police  Ct., 
86  Cal.  158,  hold  that  the  municipal 
jurisdiction  of  the  state  extends 
over  the  waters  of  the  bay  and  into 
the  ocean  one  marine  league  from 
the  shore. 

People  v.  Oakland  Water  Front 
Co.,  118  Cal.  234;  Thompson  v. 
Blackwell,  5  La.  (0.  S.)  465;  Ste- 
vens v.  Thatcher,  91  Me.  70,  39  Atl. 
282;  Adams  v.  Ulmer,  91  Me.  47; 
The  Fame,  3  Mass.  147;  Trull  T. 
Wheeler,  36  Mass.  (19  Pick.)  240; 
Forest  River  Lead  Co.  v.  City  of 
Salem,  165  Mass.  193. 

Atlantic  Dock  Co.  v.  City  of 
Brooklyn,  3  Keyes  (N.  Y.)  445.  The 
liability  of  the  municipality  for  the 
destruction  of  property  by  mob  is 
considered.  The  case  of  Orr  v.  City 
of  Brooklyn,  36  N.  Y.  661,  also  in- 
volves a  discussion  of  the  same  ques- 
tion. 

Tebo  v.  City  of  Brooklyn,  57  Hun, 

591,  10  N.  Y.  Supp.  749;  affirmed  in 

134   N.   Y.    341;    Stryker  v.   City  of 

New  York,   19  Johns.    (N.  Y.)    179; 

Abb.  Corp.— 7. 


Orr  v.  City  of  Brooklyn,  36  N.  Y. 
661;  Robins  v.  Ackerly,  91  N.  Y.  98; 
Sage  v.  City  of  New  York,  154  N.  Y. 
61;  Jarvis  T.  Lynch,  157  N.  Y.  445; 
State  v.  Eason,  114  N.  C.  787. 

Galveston  City  Surf  Bathing  Co. 
v.  Heidenheimer,  63  Tex.  559.  A 
city  whose  boundary  line  extends  to 
the  sea  shore  and  is  bounded  by  it 
has  jurisdiction  over  the  shore  and 
surf  for  police  and  sanitary  pur- 
poses, but  it  will  have  no  power  to 
grant  exclusive  privileges  for  the 
use  of  such  shore. 

Pacific  Sheet  Metal  Works  v. 
Roeder,  26  Wash.  183.  See,  also, 
Farnham,  Waters,  pp.  1482  et  seq. 

257  Handly's  Lessee  v.  Anthony,  5 
Wheat.  (U.  S.)  374,  deciding  that  the 
boundary  line  of  the  state  of  Ken- 
tucky extends  only  to  the  low-water 
mark  on  the  western  side  of  the 
Ohio  River.  In  this  case  it  is  also 
held  that  where  a  river,  the  bound- 
ary between  two  nations  or  states, 
is  in  neither,  and  there  be  no  con- 
vention respecting  it,  each  holds  to 
the  middle  of  the  stream.  If  one 
state,  however,  is  the  original  pro- 
prietor and  grants  territory  on  one 
side  only,  it  retains  the  river  with- 
in its  domain  and  the  newly-erected 
state  extends  to  the  river  only,  and 
low-water  mark  is  its  boundary. 
See,  also,  as  holding  this  last  propo- 
sition with  regard  to  the  boundary 
of  Georgia,  Howard  v.  Ingersoll,  13 
How.  (U.  S.)  381;  State  of  Alabama 
v.  State  of  Georgia,  23  How.  (U.  S.) 
506;  Jones  v.  Soulard,  24  How.  (U. 
S.)  41. 

State  of  Indiana  T.  State  of  Ken- 


98 


CORPORATE  LIFE;  EXISTENCE. 


56 


the  course  of  a  non-navigable  stream  ;258  or  a  line  with  certain 
well  known  natural  objects  for  calls.259 


tucky,  136  U.  S.  479;  following 
Handly's  Lessee  v.  Anthony,  5 
Wheat.  (U.  S.)  374.  In  this  case  it 
was  also  held  that  the  continuous 
claiming  and  exercising  of  jurisdic- 
tion to  a  certain  boundary,  i.  e.,  low- 
water  mark,  when  the  evidence  of 
documents  and  witnesses  is  conflict- 
ing, was  decisive  in  favor  of  the 
claim  of  Kentucky. 

State  of  Iowa  v.  State  of  Illinois, 
147  U.  S.  1,  where  the  expression 
"middle  of  the  Mississippi  River" 
and  "the  center  of  the  main  channel 
of  that  river"  are  held  synonymous 
terms,  and  mean  the  middle  of  the 
main  navigable  channel  or  channel 
most  used.  Here  the  boundary  was 
established  by  an  enabling  act. 

St.  Joseph  &  G.  I.  K.  Co.  v.  Dev- 
ereux,  41  Fed.  14;  Ft.  Smith  Bridge 
Co.  v.  Hawkins,  54  Ark.  509;  Wa- 
ters v.  Pool,  130  Cal.  136,  62  Pac. 
385. 

Pratt  v.  State,  5  Conn.  388.  The 
channel  of  the  Connecticut  River 
not  within  the  patented  limits  of  ei- 
ther of  the  towns  of  Lynne  or  Say- 
brook,  but  the  jurisdiction  of  each 
town  for  the  service  of  process  and 
enforcement  of  law  extends  by  an- 
cient invariable  usage  to  the  center 
of  the  stream. 

Rowe  v.  Smith,  51  Conn.  266; 
Simpson  v.  State,  92  Ga.  41;  Village 
of  Brooklyn  v.  Smith,  104  111.  429; 
Buttenuth  v.  St.  Louis  Bridge  Co., 
123  111.  535;  People  v.  Madison 
County  Sup'rs,  125  111.  9;  St.  Louis 
Bridge  Co.  v.  People,  125  111.  226; 
Keokuk  &  H.  Bridge  Co.  v.  People, 
145  111.  596;  Belief ontaine  Imp.  Co. 
v.  Niedringhaus,  181  111.  426;  Chi- 
cago &  N.  W.  R.  Co.  v.  City  of  Clin- 
ton, 88  Iowa,  188,  55  N.  W.  462,  fol- 


lowing State  of  Iowa  v.  State  of 
Illinois,  147  U.  S.  1;  Hart  v.  Rogers, 
48  Ky.  (9  B.  Mon.)  418;  Louisville 
Bridge  Co.  v.  City  of  Louisville,  81 
Ky.  189;  Henderson  Bridge  Co.  v. 
City  of  Henderson,  90  Ky.  498. 

Myers  v.  Perry,  1  La.  Ann.  372. 
Boundary  line  between  Mississippi 
and  Louisiana  held  to  be  the  mid- 
dle of  the  river.  Same  of  bound- 
ary line  between  Louisiana  and 
Texas.  State  v.  Burton,  105  La. 
516. 

Granger  v.  Avery,  64  Me.  292.  In 
State  v.  Keane,  84  Mo.  App.  127,  the 
result  upon  a  boundary  of  a  sudden 
abandonment  of  an  old  channel,  with 
a  new  course  for  the  stream,  is 
discussed. 

Morgan  v.  Reading,  11  Miss.  (3 
Smedes  &  M.)  366;  Sioux  City 
Bridge  Co.  v.  Dakota  County,  61 
Neb.  75;  Boscawen  v.  Canterbury, 
23  N.  H.  (3  Fost.)  188;  State  v. 
Canterbury,  28  N.  H.  (8  Fost.)  195; 
State  v.  Davis,  25  N.  J.  Law  (1 
Dutch.)  386;  State  v.  Metz,  29  N. 
J.  Law  (5  Dutch.)  122;  In  re  Spier, 
50  Hun,  607,  3  N.  Y.  Supp.  438; 
Udall  v.  Trustees  of  Brooklyn,  19 
Johns.  (N.  Y.)  175;  Stryker  v.  City 
of  New  York,  19  Johns.  (N.  Y.)  179. 

State  v.  Eason,  114  N.  C.  787. 
Low-water  line  and  not  the  thread 
of  the  stream  held  the  boundary. 

Robinson  v.  Lamb,  131  N.  C.  229. 
Where  a  certain  stream  is  designat- 
ed as  a  boundary  line  between  two 
counties,  that  branch  which  has  al- 
ways been  considered  as  the  main 
channel  of  the  river  will  be  consid- 
ered as  such  boundary. 

Booth  v.  Shepherd,  8  Ohio  St. 
243.  Gilchrist  v.  Strong,  167  Pa.  628, 
established  the  boundary  of  Wilkes- 


§  56 


NAME   AND   BOUNDARIES. 


99 


Where  a  boundary  line  does  not  follow  the  course  of  a  natural 
physical  feature  it  is  established  by  a  line  properly  surveyed  and 
determined  according  to  stated  monuments.-60  It  is  not  necessary 
where  a  call  is  "within  or  about"  that  the  course  so  designated 
should  be  strictly  followed,  and  acquiescence  as  evidenced  by  the 
acts  of  parties  in  the  course  of  an  incorrect  boundary  line  for 
man}-  years  operates  as  an  estoppel.261  Following  the  rule  that 


barre   as    extending    to    the   middle 
of   the   Susquehanna  River. 

State  v.  City  of  Columbia,  27  S. 
C.  137. 

258  in  re  Inhabitants  of  Ipswich, 
30  Mass.  (13  Pick.)  431.  Boundary 
follows  thread  of  stream. 

Cold  Spring  Iron  Works  v.  Inhab- 
itants of  Tolland,  63  Mass.  (9  Gush.) 
492;  Flynn  v.  City  of  Boston,  153 
Mass.  372,  26  N.  E.  868;  Perkins  v. 
Inhabitants  of  Oxford,  66  Me.  545; 
People  v.  Bouchard,  82  Mich.  156; 
State  v.  Gilmanton,  9  N.  H.  461; 
Johns  v.  Davidson,  16  Pa.  512. 

259Belding  v.  Hebard,  103  Fed. 
532;  Rabun  County  v.  Habersham 
County,  79  Ga.  248,  5  S.  E.  198; 
Beale  v.  Patterson,  3  Watts  &  S. 
(Pa.)  379;  Roane  County  v.  Ander- 
son County,  89  Tenn.  259,  14  S.  W. 
1079;  Davidson  County  v.  Cheatham 
County  (Tenn.  Ch.  App.)  63  S.  W. 
209. 

aeo  state  of  Virginia  v.  State  of 
Tennessee,  148  U.  S.  503;  United 
States  v.  State  of  Texas,  162  U.  S.  1; 
Jenkins  v.  Trager,  40  Fed.  726; 
Belding  v.  Hebard,  103  Fed.  532; 
Drummond  v.  State,  61  Ala.  64; 
Link  v.  Jones,  15  Colo.  App.  281,  62 
Pac.  339;  New  Jersey  Southern  R. 
Co.  v.  Chandler,  65  N.  J.  Law,  173, 
46  Atl.  732. 

State  v.  Rainey,  121  N.  C.  612, 
28  S.  E.  366.  A  charter  reading  that 
the  boundaries  of  a  town  shall  be 
"one-fourth  of  a  mile  east,  west, 
north  and  south  from  the  center  of 


the  town  and  shall  run  with  the  four 
cardinal  points  of  the  compass"  con- 
strued. 

Horiston  v.  City  Council  of  Charles- 
ton, 1  McCord  (S.  C.)  345;  Mont- 
gomery  v.  Ives,  21  Miss.  (13  Smedes 
&  M.)  161. 

State  T.  Merriman,  6  Wis.  14. 
Township  surveys  are  not  to  be 
taken  conclusively  as  squares  of  six 
miles,  though  prima  facie  this  is 
true. 

261  State  of  Virginia  v.  State  of 
Tennessee,  148  U.  S.  503;  United 
States  v.  State  of  Texas,  162  U.  S. 
1.  Acquiescence  not  established. 
Strosser  v.  City  of  Ft.  Wayne,  100 
Ind.  443;  Belknap  v.  City  of  Louis- 
ville, 93  Ky.  444,  20  S.  W.  309;  Wick- 
liffe  v.  City  of  Lexington,  50  Ky. 
(11  B.  Mon.)  155;  Smith  v.  City  of 
St.  Louis,  21  Mo.  36;  Omaha  v.  City 
of  South  Omaha,  31  Neb.  378,  47 
N.  W.  1113;  Chosen  Freeholders  of 
Union  County  v.  Essex  County  Free- 
holders, 43  N.  J.  Law,  391;  People 
v.  Carpenter,  24  N.  Y.  86. 

Humboldt  County  v.  Lander  Coun- 
ty, 24  Nev.  461,  56  Pac.  228.  Cer- 
tain facts  held  not  to  constitute  es- 
toppel or  acquiescence. 

Hanson  v.  Russel,  28  N.  H.  (8 
Fost.)  Ill;  Hecker  v.  Sterling,  36 
Pa.  423;  Lampasas  Bounty  v.  Cor- 
yell  County,  27  Tex.  Civ.  App.  195, 
65  S.  W.  67. 

Smith  v.  Town  of  Rockingham,  25 
Vt.  645.  Acts  of  adjoining  proprie- 
tors for  a  period  of  twenty  years. 


100 


CORPORATE  LIFE;  EXISTENCE. 


§  57 


that  is  certain  which  can  be  made  certain,  the  calls  and  courses 
of  a  boundary  will  be  held  certain  and  definite  if  they  can  be 
readily  ascertained  and  followed  by  surveyors  or  if  their  location 
can  be  established  by  reference  to  certain  definite  objects.262 

§  57.    Corporate  boundaries;  how  established. 

The  preceding  section  deals  with  the  definition  and  description 
of  boundary  lines.  In  this  and  following  sections  will  be  con- 
sidered, in  detail,  the  establishment  of  such  lines,  with  the  legal 
authority  and  the  proper  procedure  at  hearings.  The  funda- 
mental principle  that  a  public  corporation  holds  its  existence  and 
its  powers  at  the  will  of  the  sovereign  is  again  suggested.  Its 
boundaries  as  a  part  of  its  legal  existence  are  determined  and 
changed  by  the  same  authority.  We  look  therefore  to  the  sover- 
eign, acting  directly  or  through  a  delegated  body,  usually  the 
legislature,  for  the  legal  authority  necessary  to  the  valid  estab- 
lishment or  change  of  boundary  lines.263 


recognizing  a  certain  stone  wall  as 
the  boundary  line  between  two 
towns,  does  not  bind  the  towns. 
Hamilton  v.  McNeil,  13  Grat.  (Va.) 
389;  Smith  v.  Dees,  92  Ga.  549,  17 
S.  E.  925,  and  Marsalis  v.  Garrison 
(Tex.  Civ.  App.)  27  S.  W.  929,  hold, 
however,  to  the  contrary. 

262  Town  of  New  Decatur  v.  Nel- 
son, 102  Ala.  556,  15  So.  275;  City  of 
San  Diego  v.  Granniss,  77  Cal.  511; 
County  of  San  Bernardino  v.  Reich- 
ert,  87  Cal.  287;  People  v.  Town  of 
Linden,  107  Cal.  94,  40  Pac.  115. 

Hollenbeck  v.  Sykes,  17  Colo.  317, 
29  Pac.  380.  Here  the  rule  is  also 
laid  down  that  monuments  control 
courses,  and  a  specific  course  will 
control  a  general  one. 

Morrison  v.  Langworthy,  4  G. 
Greene  (Iowa)  177;  McClintock  v. 
Rogers,  11  111.  279;  Gate  v.  Thayer, 
3  Me.  (3  Greenl.)  71;  Raab  v.  State, 
7  Md.  483;  Bechtel  v.  Village  of 
Edgewater,  45  Hun  (N.  Y.)  240; 
Elmendorf  v.  City  of  New  York,  25 
Wend.  (N.  Y.)  693;  New  Jersey 


Southern  R.  Co.  v.  Chandler,  65  N. 
J.  Law,  173,  46  Atl.  732;  Proprietors 
of  Enfield  v.  Day,  11  N.  H.  520;  Eu- 
reka County  v.  Lander  County,  21 
Nev.  144,  24  Pac.  871;  Com.  v.  Ful- 
lerton,  12  Pa.  266;  State  v.  Broach 
(Tex.  Civ.  App.)  35  S.  W.  86;  State 
v.  Wofford,  90  Tex.  514;  French  v. 
Bankhead,  11  Grat.  (Va.)  136;  Cut- 
ting v.  Stone,  7  Vt.  471;  Gray  v. 
Sheldon,  8  Vt.  402;  Williams  v.  Wil- 
lard,  23  Vt.  369;  State  v.  Hoff  (Tex. 
Civ.  App.)  29  S.  W.  672. 

zes  city  of  Little  Rock  v.  Parish, 
36  Ark.  166;  Stilz  v.  City  of  Indian- 
apolis, 55  Ind.  515;  City  of  Gales- 
burg  v.  Hawkinson,  75  111.  152; 
Division  of  Howard  County,  15  Kan. 
194;  City  of  New  Orleans  v.  Cazelar, 
27  La.  Ann.  156.  See  note  to  Com. 
v.  City  of  Roxbury,  75  Mass.  (9 
Gray)  512.  People  v.  Bennett,  29 
Mich.  451;  Martin  v.  Dix,  52  Miss. 
53;  State  v.  Crow  Wing  County 
Com'rs,  66  Minn.  519,  68  N.  W.  767, 
69  N.  W.  925,  73  N.  W.  631;  State 
v.  Pioneer  Press  Co.,  66  Minn.  536, 


§   58  NAME   AND   BOUNDARIES. 

To  acts  changing  or  establishing  the  boundary  lines  of  public 
corporations,  the  usual  rules  of  construction  apply.  The  intent 
of  the  legislature  will  be  ascertained  if  possible  and  given  effect, 
and  different  acts  harmonized.264 

§  58.    Boundary  lines;  agency  for  their  establishment. 

The  legislature  having  power  to  fix  or  establish  the  boundaries 
of  public  corporations  in  the  first  instance,  and  therefore  to  sub- 
sequently change  them,  it  is  also  within  their  power,  though  some 
cases  hold  to  the  contrary,  to  delegate  to  some  ministerial  or 
judicial  body  the  right  to  determine  them  in  the  manner  pro- 
vided.268 

The  cases  holding  contrary  to  this  rule  base  their  findings  upon 
the  principle  that  the  establishment  of  boundaries,  except  so  far 
as  ministerial  or  clerical  duties  in  connection  with  it  are  con- 
cerned, is  a  legislative  matter,  delegated  to  the  legislature  itself 
by  the  sovereign  people,  and  that  under  a  familiar  rule  the  per- 
formance of  this  legislative  duty  cannot  be  delegated.266  It  is 
quite  competent,  however,  for  the  legislature  to  provide  for  a 
tribunal  to  consider  the  change  or  the  establishment  of  boundary 
lines,267  with  power  to  control  proceedings  before  them,268  includ- 

68  N.  W.  769;    Schaffner  v.  Young,  v.    Smith,    42    Kan.    433;    Kelly    v. 

10  N.  D.  245,  86  N.  W.  733;   Stuart  Meeks,  87  Mo.  396;  City  of  Wahoo  v. 

v.   Kirley,    12   S.   D.   245,    81   N.    W.  Dickinson,  23  Neb.  426;  Whitehouse 

147;  Wade  v.  City  of  Richmond,  18  v.  Bickford,  29  N.  H.  471;    Pitman 

Grat.    (Va.)    583;    Washburn  v.  City  v.   Town  of  Albany,   34  N.  H.   577; 

of  Oshkosh,  60  Wis.  453.  Wells  v.  Jackson  Iron  Mfg.  Co.,  48 

2«4  Link   v.    Jones,    15    Colo.    App.  N.   H.  491;    People  v.  Carpenter,  24 

281,  62  Pac.  339;  Indiana,  I.  &  I.  R.  N.   Y.   86;    Blanchard  v.  Bissell,  11 

Co.  v.  People,  154  111.  558;  Kaufman  Ohio  St.  96. 

County    v.    McGaughey     (Tex.    Civ.  see  People  v.  Bennett,  29  Mich.  451. 

App.)  32  S.  W.  927;  Wright  v.  Jones,  se?  State  of  Missouri   v.   State  of 

14  Tex.  Civ.  App.  423,  38  S.  W.  249.  Iowa,  160  U.  S.  688;  Belding  v.  He- 

aes  Fisher  v.   San   Diego  City   Po-  bard,  103  Fed.  532;   Prince  George's 

lice  Ct.,  86  Cal.  158;   Town  of  Suf-  County  Com'rs  v.  Village  of  Bladens- 

field    v.    Town    of    East    Granby,    52  burg,    51    Md.    465;     Inhabitants    of 

Conn.   175;    City  of  Jacksonville  v.  Lisbon   v.   Inhabitants   of   Bowdoin, 

L'Engle,  20  Fla.  344;  Town  of  Cicero  53  Mo.  324. 

T.  City  of  Chicago,  182  111.  301;  Stilz  Inhabitants    of    Winthrop    v.    In- 

v.  City  of  Indianapolis,  55  Ind.  515;  habitants  of  Readfield,  90   Me.   235. 

City  of  Vincennes  v.   Windman,   72  No  necessity  for  taking  of  notes  by 

Ind.   218;   City  of  Delphi  v.  Startz-  commissioners.      This      case      also 

man,  104  Ind.  343;  City  of  Emporia  holds  that  previous  employment  as 


102  CORPORATE  LIFE;  EXISTENCE.  §  59 

ing  the  presentation  of  evidence,269  listen  to  objections,  and  make 
an  order  or  finding270  accompanied  by  a  map  or  plat271  which 
shall  establish  the  boundary  and  from  which  there  may  be  an 
appeal  to  a  higher  and  judicial  tribunal,  or  upon  which  a  suit  can 
be  maintained  to  determine  the  question  by  those  who  have  the 
right  and  who  are  not  barred  by  estoppel  or  laches.272  This  tri- 
bunal on  appeal,  it  was  held  in  one  case,  had  only  power  to  in- 
quire into  the  conduct  .and  motives  of  the  commissioners  making 
the  finding  or  order.  They  could  not  review  questions  of  law  or 
fact  involved.273  The  legislative  adoption  of  the  report  of  a  com- 
mission selected  by  two  states  to  settle  the  boundary  line  beween 
them  does  not  make  a  "compact,"  forbidden  by  the  constitution 
of  the  United  States  without  the  consent  of  Congress.274  The  set- 
tlement of  boundary  lines  between  towns  by  such  organizations, 
without  the  intervention  of  the  legislature,  cannot  affect  the  title 
of  the  commonwealth,  so  it  has  been  held  in  Massachusetts,  to  the 
seashore  within  one  of  the  towns.275 

§  59.    Proceedings  for  the  establishment  of  corporate  boundaries 
and  miscellaneous  matters  in  connection  therewith. 

The  commissioners  or  officials  appointed  or  elected  under  the 
authority  authorizing  the  establishment  of  a  boundary  line  are  not 
usually  considered,  in  their  collective  capacity,  a  judicial  body.276 

surveyor  to  run  the  line  in  dispute  Fed.  333;    Inhabitants  of  Wesley  v. 

does   not   disqualify  a  person   from  Sargent,  38  Me.  315;  Bailey  v.  Rolfe, 

acting  as  one  of  the  commissioners.  16  N.  H.  247. 

Kaufman   County   v.    McGaughey,  Henniker  v.  Hopkinton,  18  N.  H. 

3  Tex.  Civ.  App.  655,  21  S.  W.  261;  98,  where  two  termini  of  a  line  are 

Marsalis  v.  Creager,  2  Tex.  Civ.  App.  determined,  the  line  between  them 

368,  21  S.  W.  545;    Wise  County  v.  must  be  straight  unless  the  contrary 

Montague  County,  21  Tex.  Civ.  App.  appears   by   description.     The   same 

444,  52  S.  W.  615.  in  State  v.  City  of  Columbia,  27  S. 

zes  covers  v.  Westchester  County  C.  137,  3  S.  E.  55. 

Sup'rs,    55   App.    Div.    40,    67    N.   Y.  272  Gunnison     County     Com'rs     r. 

Supp.  27.  Saguache    County    Com'rs,    2    Colo. 

269  inhabitants  of  Winthrop  v.  In-  App.  412,  31  Pac.  183. 

habitants  of  Readfield,  90  Me.  235.  ZTS  Inhabitants  of  Winthrop  v.  In- 

270  State   of    Indiana   v.    State    of  habitants  of  Readfield,  90  Me.  235. 
Kentucky,  163  U.  S.  520;    Memphis        2-4  state   of  Virginia   v.    State   of 
&  C.  Packet  Co.  v.  Pikey,  142   Ind.  Tennessee,  148  U.  S.  503. 

304.  276  Com.    v.    City    of   Roxbury,    75 

271  Bluefield    Waterworks    &    Imp.    Mass.   (9  Gray)   451. 

Co.  v.  Sanders,  11   C.  C.  A.  232,  63        275  Under  Tex.  Rev.  St.  art.  808a, 


§   61  NAME  AND   BOUNDARIES.  103 

It  is  for  them  to  consider  evidence  that  may  be  offered  pertinent 
to  the  question  before  them,  without  applying,  however,  as  to  its 
introduction,  the  strict  rules  of  law,277  and  after  having  consid- 
ered the  evidence  or  established  the  boundary  in  the  manner  pre- 
scribed by  lawful  authority,  make  their  report  with,  if  occasion 
requires,  findings  of  fact278  and  possibly  conclusions  of  law. 

The  expense  of  such  proceedings  may  be  ascertained  by  them 
and  certified  to  the  proper  disbursing  officers  for  payment. 

The  statutes  in  some  states  require,  as  the  initiative  of  pro- 
ceedings establishing  boundary  lines,  a  petition.279  This  should 
contain  the  proper  averments,  and  the  description  of  the  proposed 
boundary  should  be  specific  and  definite.280  No  notice  is  required 
to  be  given  except  to  interested  persons.281 

§  60.    Objections  to  the  establishment  of  corporate  boundaries. 

Whether  the  power  to  establish  or  change  boundary  lines  is 
vested  in  a  prescribed  court  or  in  an  elective  or  appointive  board 
especially  provided  for  the  occasion,  the  rule  of  law  holds  that 
objections  to  the  bringing  of  such  proceedings,  to  their  validity 
in  any  respect,  or  to  the  jurisdiction  of  the  tribunal,  must  be  made 
within  the  time  fixed  by  law.  If  parties  are  guilty  of  laches  there 
can  be  no  relief  given  even  in  cases  where  their  objections,  if  made 
within  the  proper  time,  are  well  founded.  This  rule  applies  not 
only  to  the  assignment  of  errors  but  also  to  the  manner  or  the 
place  of  the  pendency  of  such  proceedings.282 

§  61.    Location  of  corporate  boundaries. 

Where  the  location  of  boundaries  is  placed  in  the  hands  of  an 

the  district  court  has  full  and  com-  Deer  Lodge  County  Com'rs,  10  Mont, 
plete     jurisdiction     of     an     action  325,  25  Pac.  1041;  Campton  v.  Hold- 
brought  by  a  county  to  establish  a  erness,  25  N.  H.  225. 
boundary   line,    though   proceedings  2-9  Boscawen  v.  Canterbury,  23  N. 
may  be  pending  in  an  inferior  court  H.  188. 

for    the    same    purpose.    Lampasas  280  Howell  v.  Kinney,  99  Ga.  544, 

County  v.   Coryell   County,   27  Tex.  27  S.  E.  204. 

Civ.  App.  195,  65  S.  W.  67.  281  Marsalis  v.  Garrison  (Tex.  Civ. 

ziTMcKissick     v.     Colquhoun,     18  App.)  27  S.  W.  929. 

Tex.  148.  282  EX  parte  Rhodes,  43  Ala.  373; 

278  state      v.      Atchison      County  Belknap  v.  City  of  Louisville,  14  Ky. 

Com'rs,   44   Kan.    186;    Kornburj  v.  L.  R.  420,  20  S.  W.  309. 


104  CORPORATE  LIFE;  EXISTENCE.  X  53 

individual,  a  personal  survey  is  not  necessary.283  His  approval 
of  a  line  surveyed  by  competent  men  under  his  control  and  direc- 
tion will  be  sufficient,284  and  acts  in  excess  of  his  authority  will 
not  affect  existing  lines.285 

§  62.    Appeal  from  order  fixing  corporate  boundaries. 

Usually  appeals  can  be  taken  from  an  order  of  commissioners 
•appointed  to  consider  and  establish  corporate  boundary  lines,288 
although  this  right  is  not  essential  to  the  validity  of  such  pro- 
ceedings or  the  line  established.  It  is  within  the  discretion  of  the 
legislature  to  provide  for  an  appeal,  the  establishment  of  the 
boundary  line  in  the  first  instance  being  a  question  exclusively 
for  its  determination.287  The  time  fixed  by  statute  within  which 
the  validity  of  the  line  can  be  questioned,  either  by  an  appeal 
from  the  order  of  the  commissioners  or  a  suit  brought  to  deter- 
mine the  question,  is  deemed  mandatory.288 

§  63.    Change  of  corporate  boundary. 

The  boundary  lines  of  a  public  corporation  when  established 
in  the  manner  prescribed  by  law  remain  fixed  until  changed  by 
like  authority.  On  the  annexation  or  division  of  territory,  bound- 
ary lines  of  the  old  organizations  must  necessarily  be  changed 
or  adjusted  to  suit  the  new  conditions.  The  legislature  having 
the  power  in  the  first  instance  to  determine  boundary  lines  must 
grant  authority  for  the  change,289  and  as  in  the  original  estab- 

283  Hinsdale     County     Com'rs     v.  Wise   County   v.   Montague   County, 

Mineral  County  Com'rs,  9  Colo.  App.  21  Tex.  Civ.  App.  444. 

368,   48  Pac.  675.  In  Ewing  v.  State,  81  Tex.  172,  16 

28*  Rice  v.  Trinity  County,  110  Cal.  S.  W.  872,  it  is  held  that  under  Rev. 

247.  St.  of  Tex.  art.  508,  the  boundaries 

285  Humbolclt    County    v.    'Lander  of  a  municipal  corporation  as  estab- 
County,  24  Nev.  461,  56  Pac.  228.  lished  at  incorporation  are  not  con- 

286  City  of  San  Jose  v.  Uridias,  37  elusive. 

Cal.    339;    Routt   County   Com'rs   v.  Washburn  v.  City  of  Oshkosh,  60 

Grand  County  Com'rs,  4  Colo.  App.  Wis.  453. 

306,   35   Pac.   1061;    Warren   County  sss  Routt  County  Com'rs  v.  Grand 

Com'rs  v.  State,  15  Ind.  250.  County  Com'rs,  4  Colo.  App.  306,  35 

287  Flynn   v.    City   of   Boston,    153  Pac.  1061;   Gunnison  County  Com'rs 
Mass.   372;    Pool  v.   Brown,   98   Mo.  v.  Saguache  County  Com'rs,  2  Colo. 
675;   In  re  Plunkett  Creek  Tp.,  148  App.  412;  Marsalis  v.  Creager,  2  Tex. 
Pa.  299,  23  Atl.  1041;  Roane  County  Civ.  App.  368;   Kaufman  County  v. 
V.  Anderson   County,  89  Tenn.   25?;  McGaughey,  3  Tex.  Civ.  App.  655. 


§  63 


NAME   AND  BOUNDARIES. 


105 


lishment  the  changed  line  may  be  designated  in  the  act  or  au- 
thority; or,  in  those  states  where  the  contrary  is  not  held,  the 
ministerial  duties  may  be  delegated  to  a  subordinate  body,  either 
judicial  or  ministerial  in  its  nature,290  whose  duty  it  is,  after  due 
consideration  of  the  petition  and  evidence  submitted  to  them;  to 
make  an  order  or  finding,  accompanied  usually  by  a  map  or  a 
plat,291  which  when  properly  filed  gives  force  to  the  change,  and 
new  relations  are  established  between  persons  and  property  and 
corporate  organizations. 

In  many  cases  the  change  of  boundary  is  made  dependent  upon 
the  consent  of  the  people  residing  within  the  districts  affected. 
This  is  especially  true  of  municipal  corporations  proper.292  A 
line  may  not  be  changed  until  after  the  consent  of  the  requisite 
number  of  voters  or  the  required  majority  in  the  legislature.293 
The  duty  imposed  upon  commissioners  to  change  boundary  lines 


ass  in  re  Executive  Communica- 
tion of  Jan.  16,  1873,  14  Fla.  320; 
Howell  v.  Kinney,  99  Ga.  544;  Tay- 
lor T.  Com.,  54  Ky.  (15  B.  Mon.) 
11;  Walters  v.  Richardson,  93  Ky. 
374,  20  S.  W.  279;  Adams  v.  Ulmer, 
91  Me.  47,  39  Atl.  347;  People  v. 
Mabie,  142  N.  Y.  343,  37  N.  E.  115; 
Gorrill  v.  Whittier,  3  N.  H.  265;  In 
re  Wetmore  Tp.,  68  Pa.  340;  Har- 
rison Tp.  v.  Schoolcraft  County 
Sup'rs,  117  Mich.  215,  75  N.  W.  456. 

City  of  Westport  v.  Kansas  City, 
103  Mo.  141.  Where  the  manner  in 
which  city  limits  can  be  extended  is 
prescribed  by  the  state  constitution, 
the  legislature  has  no  power  to  pass 
an  act  authorizing  their  extension 
in  a  different  manner.  See,  also, 
People  v.  Mabie,  73  Hun  (N.  Y.) 
495,  which  holds  that  a  municipal 
corporation  organized  under  a  spe- 
cial act  cannot  change  its  boun- 
daries under  the  provisions  of  a 
general  law  but  is  confined  to  the 
manner  prescribed  in  the  special  act 
or  charter. 

290  in  re  Mathews,  59  App.  Div. 
159,  69  N.  Y.  Supp.  203.  See  State 


v.  Haverly,  62  Neb.  767,  87  N.  W. 
959,  as  to  effect  upon  office  of  county 
commissioner  by  change  in  boun- 
dary lines.  Van  Den  Bos  v.  Doug- 
las County  Com'rs,  11  S.  D.  190,  76 
N.  W.  935. 

201  in  re  Catharine  &  Frankstown 
Tps.,  31  Pa.  303.  In  Smith  v.  Sher- 
ry, 54  Wis.  114,  the  statutory  pro- 
visions regarding  an  order  or  find- 
ing by  county  commissioners  rela- 
tive to  the  change  of  boundary  lines 
are  mandatory  in  their  character 
and  must  be  substantially  complied 
with  in  order  to  effect  such  a  change. 

292  Dodson  v.  Town  of  Ft.  Smith, 
33  Ark.  508;   Strosser  v.  City  of  Ft. 
Wayne,    100    Ind.    443;    Morford    v. 
Unger,  8  Iowa,  82;  City  of  Topeka  v. 
Gillett,   32  Kan.   431;    Daly  v.   Mor- 
gan,  69   Md.  460;    Stone  v.   City  of 
Charlestown,    114    Mass.    214;    Hew- 
itt's Appeal,   88   Pa.    55;    Stuart   v. 
Kirley,  12  S.  D.  245;  State  v.  City  of 
Waxahachie,  81  Tex.  626. 

293  Jackson  v.  State,  131  Ala.  21,  31 
So.    380.     See,    also,   cases    cited    in 
preceding  note. 


106  CORPORATE  LIFE;  EXISTENCE.  §   55 

on  the  presentation  to  them  of  a  petition  properly  signed  and  veri- 
fied is  not  discretionary  in  its  character,  and  its  performance  may 
be  compelled  by  mandamus.294  If  a  petition  is  required  by  statute 
as  preliminary  to  action,  its  averments  and  signatures  must  fol- 
low the  provisions  of  the  law.295 

§  64.    Judicial  recognition. 

Boundary  lines  as  established  by  competent  tribunals  become 
matters  of  public  record  of  which  the  courts  will  take  cognizance 
and  exercise  jurisdiction  accordingly.296  Nor  can  they  be  col- 
laterally attacked  in  suits  between  private  individuals.297 

§  65.    Effect  of  the  establishment  or  change  of  a  boundary  line. 

A  public  corporation,  of  whatever  grade,  is  given,  by  the  legis- 
lature, certain  duties  for  its  performance,  and,  in  order  to  per- 
form these  duties,  certain  rights  and  powers.  Either  as  an  agency 
of  the  government  or  considered  as  a  private  corporation,  it  enter- 
tains jurisdiction  of,  and  control  over,  persons  and  property  with- 
in its  limits.298  In  order  that  it  may  act  as  an  agency  of  govern- 
ment for  the  welfare  and  protection  of  those  entitled,  it  is  nec- 
essary that  it  levy  taxes  and  disburse  the  proceeds  for  public 
purposes,  and  where  boundary  lines  are  changed  it  is  competent 
for  the  legislature  to  authorize  the  levy  of  taxes  at  different  rates 
upon  different  portions  of  municipal  territory.299  A  change  in  a 
boundary  line  takes  from  one  corporation  persons  and  property, 
and  places  them  within  the  jurisdiction  of  another.300 

294  Hawkins     T.     Starke     County    103  Fed.  532;   Buncombe  v.  Prindle, 
Com'rs,  14  Ind.  521.  12  Iowa,  1;  Russ  v.  City  of  Boston, 

295  Foster   v.   Hare,    26    Tex.   Civ.    157  Mass.  60,  31  N.  E.  708. 

App.  177,  62  S.  W.  541.  299  United  States  v.  City  of  Mem- 

296  state  v.  Dunwell,  3  R.  I.  127.  phis,  97  U.  S.  284;  Gillette  v.  City  of 

297  Folk's     Lessee     v.     Gentry,     1  Hartford,  31   Conn.   357;    Durant  v. 
Overt.   (Tenn.)  269;   Shank  v.  Town  Kauffman,    34    Iowa,    194;    Evans   v. 
of  Ravenswood,   43    W.    Va.   223,   27  City  of  Council  Bluffs,  65  Iowa,  238; 
S.  E.  223.  Courtney   v.    City   of   Louisville,   75 

298Fleeger  v.  Pool,  1  McLean,  185,  Ky.    (12     Bush)     419;    Cheaney    v. 

Fed.  Cas.  No.  4,860;    Poole  v.  Flee-  Hooser,   48    Ky.    (9    B.    Mon.)    330; 

ger's  Lessee,  11   Pet.    (U.    S.)    185;  Benoist  v.  City  of  St.  Louis.  19  Mo. 

Bennett  v.  Boggs,  1  Baldw.  76,  Fed.  179.     See,     also,     Cooley,     Taxation 

Cas.  No.   1,319;    Bigelow  v.   Nicker-  (2d  Ed.)  p.  157. 

son,  70  Fed.  113;  Belding  v.  Hebard,  soo  Langford  v.  Monteith,  102  U.  S. 


§   66  NAME  AND   BOUNDARIES.  107 

A  public  corporation  exercises  the  jurisdiction  and  the  powers 
suggested  in  the  preceding  paragraph  in  many  ways:  It  con- 
trols and  regulates  personal  and  property  rights,301  and  exer- 
cises, over  all  within  its  borders,  its  police  powers  for  the  protec- 
tion of  life,  health,  good  morals  and  property;302  it  maintains  all 
the  machinery  of  government,  the  use  of  which  is  granted  to  it 
by  the  sovereign, — judicial,  quasi  legislative,  ministerial  and 
clerical,  officers  and  bodies;  it  enforces  their  orders  and  regula- 
tions with  all  the  power  of  the  state ;  and  as  these  powers  and 
bodies  may  vary  under  different  organizations,  it  follows  that  a 
change  from  one  to  any  other  is  a  matter  sometimes  not  lightly  to 
be  considered. 

Where  territory  is  ceded  by  a  state  to  the  United  States,  it  is 
entitled  to  the  same  sovereignty  and  jurisdiction  originally  pos- 
sessed by  the  state  ceding  it.303 

In  Indiana  the  limits  of  two  different  organizations,  viz.,  a  civil 
township  and  a  school  township,  can  be  identical,  and  the  juris- 
diction and  powers  of  these  separate  organizations  will  be  full  and 
complete  as  to  their  own  property  and  duties.304 

§  66.    Seat  of  government. 

As  essential  and  necessary  to  the  existence  of  a  public  corpora- 
tion, there  must  be  what  is  termed  the  seat  of  government,  the 

145;   Duncombe  v.  Prindle,  12  Iowa,  S.  W.  809;   People  v.  Central  R.  of 

1;    Yellowstone    County    Com'rs    v.  New  Jersey,  48  Barb.    (N.  Y.)   478; 

Northern  Pac.  R.  Co.,  10  Mont.  414,  Neal  v.  Com.,  17  Serg.  &  R.   (Pa.) 

25  Pac.  1058;  Baldwin  v.  Goldfrank,  67. 

9  Tex.  Civ.  App.  269,  26  S.  W.  155;         The  case  of  In  re  Mattson,  ante, 

Moss  v.  Gibbs,  57  Tenn.  (10  Heisk.)  also  holds  that  the  provision  for  con- 

283.  current  jurisdiction  between  Wash- 

301  Smith  v.  Skagit  County  Com'rs,  ington  and  Oregon  over  the  Colum- 
45  Fed.  725.  bia  River  was  not  a  limitation  on 

302  Ex  parte  Marsh,  57  Fed.  719;  the  sovereignty  of  the  states  nor  an 
Manchester   v.    Com.    of    Massachu-  interference  with   their  jurisdiction 
setts,  139  U.  S.  240,  264;   Humboldt  as  equal  sovereigns. 

Lumber     Manufacturers'     Ass'n     v.  303  Columbus  Ins.  Co.  v.  Curtenius, 

Christopherson,  73  Fed.  239.     As  to  6  McLean,  209,  Fed.  Cas.  No.  3,045; 

concurrent      jurisdiction      of      two  Pollard   v.   Hagan,   3   How.    (U.   S.) 

states  over  navigable  waters  between  212;  City  of  Mobile  v.  Eslava,  9  Port, 

them,    see    In   re    Mattson,    69    Fed.  (Ala.)  577;  Dunlap  v.  Com.,  108  Pa. 

535;  Sherlock  v.  Ailing,  44  Ind.  184;  607. 

Welsh  v.  State,  126  Ind.  71;   Meyler  304  Heizer  v.  Yohn,  37  Ind.  415. 
v.  Wedding,   21   Ky.   L.  R.   1006,   53 


108  CORPORATE  LIFE;  EXISTENCE.  §  67 

place  in  which  the  public  officials  perform  their  duties  as  agencies 
of  the  sovereign,305  where  public  records  are  kept,  where  public 
buildings  are  constructed  and  devoted  to  public  uses,  and  where 
all  the  machinery  of  government  adopted  or  used  by  a  particular 
grade  of  corporation  is  employed  for  the  purposes  authorized  by 
law.  The  seat  of  government  of  the  state  or  sovereign  is  termed 
the  capital,  the  location  of  which  is  determined  by  vote  of  the 
people  or  through  constitutional  provision,  and  which  ordinarily, 
after  its  original  location,  is  not  changed.306 

A  municipal  corporation  is  itself  a  center  of  population, — is 
itself  the  seat  of  its  government.  The  law,  therefore,  as  we  find 
it  in  the  reported  cases  relating  to  or  discussing  seats  of  govern- 
ment, is  limited  practically  to  the  establishment  of  the  county  seat 
as  the  official  center  of  a  public  quasi  corporation,  the  county, 
either  by  act  of  legislature  or  under  constitutional  provisions.307 

§  67.    Original  location  of  a  county  seat. 

The  sovereign  acting  through  its  delegated  body,  the  legisla- 
ture, determines  the  boundary  lines  of  that  particular  grade  of 
public  corporation  known  as  the  county,  which,  in  the  United 
States,  is  the  usual  form  of  organization  intended  to  perform  and 
exercise  certain  governmental  functions  and  powers.  In  the  orig- 
inal organization  of  these  quasi  corporations,  the  location  of  the 
seat  of  government  is  usually  designated,308  and  it  is  competent 

305  McNair    v.    Williams,    28    Ark.  ton  County  Sup'rs,  2  Chand.  (Wis.) 

200;    Maxey  v.   Mack,  30  Ark.   472;  247,  2  Pin.  552. 

Kelly  v.  Tate,  43  Ga.  535;  Bucking-  sos  EX    parte    Hill,    40    Ala.    121; 

house  v.  Gregg,  19  Ind.  401;  State  v.  Frost   v.    Pfeiffer,    26   Colo.    338,   58 

Hamilton    County   Com'rs,   35   Kan.  Pac.    147;    Allen   v.   Lytle,    114    Ga. 

640,   15  Am.  &  Eng.  Corp.  Gas.  43;  275,  40  S.  E.  238. 

State  v.  Weld,  39  Minn.  426,  24  Am.  Adams  v.  County  of  Logan,  11  111. 

ft  Eng.  Corp.  Cas.  449;  State  v.  For-  337.     The    legislature    also   has   the 

ter,  13  S.  D.  126.  power  of  removal,  even  though  prop- 

806  Edwards   v.    Lesueur,   132    Mo.  erty  was  given  to  the  county  in  con- 

410,  33  S.  W.  1130;   Slack  v.  Jacob,  sideration  of  the  permanent  location 

8  W.  Va.  612.  of  the  county  seat  at  a  certain  place. 

SOT  EX    parte    Hill,    40    Ala.    121;  And   the    same   is    held    in   State   v. 

Jewell  v.  Weed,  18  Minn.  272    (Gil.  Sherman  County  Com'rs,  39  Kan.  293, 

247);  Barnes  v.  Pike  County  Sup'rs,  18  Pac.  179.     Megret  v.  Parish  of  Ver- 

51    Miss.    305;    Walker    v.    Tarrant  million,  10  La.  Ann.  670;   Jewell  v. 

County,  20  Tex.  16;   State  v.  Larra-  Weed,    18    Minn.     272     (Gil.     247); 

bee,  1  Wis.  200;    State  v.  Washing-  Monet  v.  Jones,  18  Miss.  (10  Smedes 


§  67 


NAME  AND   BOUNDARIES. 


109 


for  the  legislature  to  either  do  this  or  provide,  after  organization 
of  the  county,  that  it  shall  be  selected  by  vote  of  the  people  at 
an  election  to  be  held  as  authorized.309  And  where  its  location  is 
fixed  by  either  of  these  two  modes  it  is  not  within  the  power  of 
public  officials  to  change  it  through  the  construction  elsewhere  of 
public  buildings  ordinarily  located  at  the  county  seat,310  or  by* 
their  failure  to  remove  the  public  records  and  offices  to  the  county 
seat  legally  selected.311  The  legislature  may  itself,  in  an  act  in- 
corporating or  organizing  the  county,  designate,  as  has  been  said, 
the  location  of  the  county  seat,  or  it  may,  in  this  act,  provide  for 
commissioners  who  shall  perform  this  duty.312  Under  the  last 
condition  where  the  authority  is  granted  commissioners  to  ''select 
and  locate  some  central  and  convenient  place  within  the  same  for 
a  county  seat,"  it  is  not  necessary  that  the  place  selected  should 
be  at  the  geographical  center  of  the  county  so  long  as  it  is  con- 
venient for  the  people.313  The  location  of  the  county  seat,  it  has 


&  M.)  237;  State  v.  Smith,  46  Mo. 
60. 

Newton  v.  Mahoning  County 
Com'rs,  26  Ohio  St.  618,  affirmed  100 
U.  S.  548.  The  location  of  a  county 
seat  as  a  condition  for  the  gift  of 
property  to  the  county  does  not  cre- 
ate a  contract  between  the  state  and 
the  citizens  of  that  town,  preventing 
a  subsequent  removal. 

Fall  River  County  v.  Powell,  5  S. 
D.  49;  Walker  v.  Tarrant  County,  20 
Tex.  16. 

Gilmore  v.  Hayworth,  26  Tex.  89, 
also  holds  that  where  there  is  an  ab- 
solute donation  of  land  there  can 
be  no  right  of  reverter  upon  the  re- 
moval of  the  county  seat,  and  the 
acceptance  by  the  county  of  such 
gift  does  not  create  a  contract  to 
continue  indefinitely  the  county  seat 
at  that  place. 

State  v.  Larrabee,  1  Wis.  200;  At- 
torney General  v.  Fitzpatrick,  2  Wis. 
542;  State  v.  Stevens,  112  Wis.  170, 
88  N.  W.  48. 

sea  State   v.   Crook,    126    Ala.   600, 


28  So.  745;  Ter.  T.  Mohave  County 
Sup'rs,  2  Ariz.  248,  12  Pac.  730; 
Twiford  v.  Alamakee  County,  4  G. 
Greene  (Iowa)  60;  State  v.  Rotwitt, 
15  Mont.  29,  37  Pac.  845;  Barnes  v. 
Pike  County  Sup'rs,  51  Miss.  305; 
Laws  v.  Vincent,  16  Neb.  208;  Welch 
v.  Wetzel  County  Ct.,  29  W.  Va.  63, 
1  S.  E.  377. 

310  Municipality  of  Lunenburg  v. 
Attorney  General,  20  Can.  Sup.  Ct. 
596;  State  v.  Harwi,  36  Kan.  588,  14 
Pac.  158. 

an  Wells  v.  Taylor,  5  Mont.  202, 
3  Pac.  255. 

312  Skipwith  v.  Martin,  50  Ark. 
141,  6  S.  W.  514;  Mitchell  v.  Las- 
seter,  114  Ga.  275,  40  S.  E.  287; 
Swartz  v.  Lake  County  Com'rs,  158 
Ind.  141,  63  N.  E.  31;  Rice  v.  Shay, 
43  Mich.  380;  Tetherow  v.  Grundy 
County  Ct.,  9  Mo.  118;  Mills  v.  Mills, 
40  N.  C.  (5  Ired.  Eq.)  244.  But  see 
Smith  v.  Magourich,  44  Ga.  163. 

sis  Mitchell  v.  Lasseter,  114  Ga. 
275,  40  S.  E.  287. 


110 


CORPORATE  LIFE;  EXISTENCE. 


§  68 


been  held,  following  a  rule  of  law  applying  in  many  instances, 
cannot  be  inquired  into  in  a  collateral  proceeding.31* 

§  68.    Removal  of  a  county  seat. 

The  fixing  of  a  county  seat  at  a  certain  place  does  not  prevent 
the  legislature  from  providing  for  its  removal  in  any  manner  or 
at  any  time  which  it  may  designate.315  Even  the  acceptance  of 


si*  State  v.  Padgett,  19  Fla.  518; 
Robinson  v.  Moore,  25  111.  135;  Cleve- 
land, C.,  C.  &  St.  L.  R.  Co.  v.  Dunn, 
63  111.  App.  531;  Board  v.  Head,  33 
Ky.  (3  Dana)  489;  State  v.  Piper,  17 
Neb.  614. 

sis  Elwell  v.  Tucker,  1  Blackf. 
(Ind.)  285. 

Allen  v.  Reed  (Okl.)  60  Pac.  782. 
This  case  holds  that  statutes  of  Okl. 
1893,  c.  23,  are  void  as  being  in- 
consistent with  act  of  congress  of 
March  3,  1893,  §§  10,  14. 

Alley  v.  Denson,  8  Tex.  297;  Walk- 
er v.  Tarrant  County,  20  Tex.  16; 
Harrell  v.  Lynch,  65  Tex.  146;  In  re 
County  Seat  of  La  Fayette  County, 
2  Chand.  (Wis.)  212,  2  Pin.  523; 
State  v.  Washington  County  Sup'rs, 
2  Chand.  (Wis.)  247,  2  Pin.  552; 
State  v.  Portage  County  Sup'rs,  24 
Wis.  49. 

One  of  the  leading  cases  on  this 
question  is  that  of  Newton  v.  Ma- 
honing  County  Com'rs,  100  U.  S.  548, 
affirming  26  Ohio  St.  618.  In  the 
year  1846  the  legislature  of  Ohio 
passed  an  act  locating  the  county 
seat  of  Mahoning  County  at  Can- 
field  upon  the  fulfillment  of  certain 
prescribed  terms  and  conditions 
which  were  fully  complied  with.  In 
1874  another  act  was  passed  provid- 
ing for  its  removal  from  Canfield 
to  Youngstown.  A  bill  was  filed 
claiming  that  the  act  of  1846  with 
the  action  under  it  constituted  a 
contract  within  the  meaning  and 
protection  of  the  contract  clause  of 


the  Federal  Constitution.  The 
court  in  its  opinion  by  Justice 
Swayne  say  in  part:  "In  all  these 
cases  there  can  be  no  contract  and 
no  irrepealable  law,  because  they 
are  'governmental  subjects,'  and 
hence  within  the  category  before 
stated.  They  involve  public  inter- 
ests, and  legislative  acts  concerning 
them  are,  necessarily,  public  laws. 
Every  succeeding  legislature  pos- 
sesses the  same  jurisdiction  and 
power  with  respect  to  them  as  its 
predecessors.  The  latter  have  the 
same  power  of  repeal  and  modifica- 
tion which  the  former  had  of  en- 
actment, neither  more  nor  less.  All 
occupy,  in  this  respect,  a  footing  of 
perfect  equality.  This  must  neces- 
sarily be  so  in  the  nature  of  things. 
It  is  vital  to  the  public  welfare  that 
each  one  should  be  able  at  all  times 
to  do  whatever  the  varying  circum- 
stances and  present  exigencies 
touching  the  subject  involved  may 
require.  A  different  result  would 
be  fraught  with  evil. 

"All  these  considerations  apply 
with  full  force  to  the  times  and 
places  of  holding  courts.  They  are 
both  purely  public  things,  and  the 
laws  concerning  them,  must  neces- 
sarily, be  of  the  same  character. 

"If  one  may  be  bargained  about, 
so  may  the  other.  In  this  respect 
there  is  no  difference  in  principle 
between  them.  The  same  reasoning, 
pushed  a  step  farther  in  the  same 
direction,  would  involve  the  same  re- 


68 


NAME   AND   BOUNDARIES. 


Ill 


property  made  conditional  upon  the  location  of  a  county  seat  at 
a  particular  town  does  not  make  a  contract  with  property  owners 
of  such  a  nature  as  to  prevent  removal.316  The  use  of  the  words 
"permanently  established"  or  "permanently  located"  in  the  orig- 
inal act  does  not  carry  the  usual  significance  of  the  terms.317  The 


suit  with  respect  to  the  seat  of  gov- 
ernment of  a  state.  If  a  State  Cap- 
itol were  sought  to  be  removed,  un- 
der the  circumstances  of  this  case 
with  respect  to  the  county  seat, 
whatever  the  public  exigencies  or 
the  force  of  the  public  sentiment 
which  demanded  it,  those  interested, 
as  are  the  plaintiffs  in  error,  might, 
according  to  their  argument,  effec- 
tually forbid  and  prevent  it;  and 
this  result  could  be  brought  about 
by  means  of  a  bill  in  equity  and  a 
perpetual  injunction." 

The  court  then  conceded  for  the 
purposes  of  the  opinion  that  there 
was  a  contract  as  claimed  by  the 
plaintiffs  in  error  and  proceeded  to 
discuss  the  rules  of  construction 
which  should  apply  to  such  con- 
tracts. "The  rules  of  interpretation 
touching  such  contracts  are  well  set- 
tled in  this  court.  In  Tucker  v. 
Ferguson,  89  U.  S.  (22  Wall.)  527, 
we  said:  'But  the  contract  must  be 
shown  to  exist.  There  is  no  pre- 
sumption in  its  favor.  Every  rea- 
sonable doubt  should  be  resolved 
against  it.  Where  it  exists,  it  is  to 
be  rigidly  scrutinized,  and  never 
permitted  to  extend  either  in  scope 
or  duration  beyond  what  the  terms 
of  the  concession  clearly  require.' 
There  must  have  been  a  deliberate 
intention  clearly  manifested  on  the 
part  of  the  state  to  grant  what  is 
claimed.  Such  a  purpose  cannot  be 
inferred  from  equivocal  language. 
*  *  *  It  must  not  be  a  mere 
gratuity.  There  must  be  a  sufficient 
consideration,  or,  no  matter  how 


long  the  alleged  right  has  been  en- 
joyed, it  may  be  resumed  by  the 
State  at  its  pleasure.  *  *  *  No 
grant  can  be  raised  by  mere  infer- 
ence or  presumption,  and  the  right 
granted  must  be  clearly  denned. 
*  *  *  'The  rule  of  construction 
in  this  class  of  cases  is  that  it  shall 
be  most  strongly  against  the  cor- 
poration. Every  reasonable  doubt  is 
to  be  resolved  adversely.  Nothing 
is  to  be  taken  as  conceded  but  what 
is  given  in  unmistakable  terms  or 
by  an  implication  equally  clear.  The 
affirmative  must  be  shown.  Silence 
is  negation,  and  doubt  is  fatal  to 
the  claim.  This  doctrine  is  vital  to 
the  public  welfare.  It  is  axiomatic 
in  the  jurisprudence  of  this  court. 
Northwestern  Fertilizing  Co.  v.  Vil- 
lage of  Hyde  Park,  97  U.  S.  659." 

3ie  Moses  v.  Kearney,  31  Ark.  261; 
Twiford  v.  Alamakee  County,  4  G. 
Greene  (Iowa)  60;  Adams  v.  Logan 
County,  11  111.  337;  Harris  v.  Shaw, 
13  111.  463;  Armstrong  v.  Dearborn 
County  Com'rs,  4  Blackf.  (Ind.)  208; 
Swartz  v.  Lake  County  Com'rs,  158 
Ind.  141,  63  N.  E.  31;  State  v.  Sher- 
man County  Comrs,  39  Kan.  293,  18 
Pac.  179;  State  v.  Jones,  23  N.  C.  (1 
Ired.)  414;  Newton  v.  Mahoning 
County  Com'rs,  26  Ohio  St.  618;  Al- 
ley v.  Denson,  8  Tex.  297;  Gilmore 
v.  Hayworth,  26  Tex.  89. 

317  Newton  v.  Mahoning  County 
Com'rs,  100  U.  S.  548;  Armstrong  v. 
Dearborn  County  Com'rs,  4  Blackf. 
(Ind.)  208;  Harris  v.  Shaw,  13  111. 
463. 


112 


CORPORATE  LIFE;  EXISTENCE. 


68 


removal  is  ordinarily  effected  pursuant  to  a  legislative  act  in 
itself  directing  a  change  and  naming  the  new  county  seat,318  in 
some  cases  passed  pursuant  to  a  constitutional  provision  ;319  or  the 
act  may  provide  for  commissioners  or  a  reference  to  a  judicial 
body  to  determine  this  question.320  Or  again,  this  being  the  usual 
method,  the  constitutional  or  statutory  authority  for  removal  may 
provide  for  a  change  by  the  consent  of  the  people  residing  with- 
in the  county,  through  an  election  held  in  the  manner  to  be 
considered  in  succeeding  sections.321  Lawful  authority  for  the 
removal  is  the  first  consideration.  It  has  been  held  that  where 
a  statute  provides  upon  the  fixing  of  a  county  seat  in  a  particular 
place  "it  shall  not  be  lawful  to  change  the  county  seat  again  for 
ten  years,"  such  language  is  not  a  bar  to  the  filing  of  a  petition 
for  an  election  to  change  such  county  seat  before  the  lapse  of 


sis  Lake  County  Com'rs  v.  State, 
24  Fla.  263,  4  So.  795;  Attorney  Gen- 
eral v.  Canvassers  of  Iron  County, 
64  Mich.  607,  31  N.  W.  539;  State  v. 
Perry  County  Com'rs,  5  Ohio  St. 
497;  Noble  v.  Noble  County  Com'rs, 
5  Ohio  St.  524. 

sis  Livermore  v.  Waite,  102  Cal. 
113,  36  Pac.  424;  People  v.  Waite 
(Cal.)  36  Pac.  431;  Doan  v.  Logan 
County  Com'rs,  2  Idaho,  781,  26  Pac. 
167;  In  re  County  Seat  of  Osage 
County,  16  Kan.  296;  State  v.  San- 
ders, 42  Kan.  228;  State  v.  Burton, 
47  Kan.  44;  Bayard  T.  Clinge,  16 
Minn.  249  (Gil.  221). 

Nichols  v.  Walter,  37  Minn.  264, 
33  N.  W.  800.  Chapter  272,  Laws  of 
Minnesota,  1885,  held  unconstitu- 
tional and  void  as  being  special  leg- 
islation and  not  uniform  in  its  oper- 
ation throughout  the  state. 

Attorney  General  v.  Canvassers  of 
Iron  County,  64  Mich.  607;  Stuart 
v.  Bair,  67  Tenn.  (8  Baxt.)  141; 
Bouldin  v.  Lockhart,  69  Tenn.  (1 
Lea)  195;  Combs  v.  Stumple,  79 
Tenn.  (11  Lea)  26. 

32<>  Russell  v.  Jacoway,  33  Ark.  191. 

Lake  County  Com'rs  v.  State,  24 
Fla.  263,  4  So.  795.  An  act  provid- 


ing for  the  temporary  location  of  a 
county  seat  by  the  county  commis- 
sioners, or  a  majority  of  them,  is 
not  held  a  delegation  of  the  law- 
making  power. 

People  v.  County  Officers  of  St. 
Clair,  15  Mich.  85.  Where  a  resolu- 
tion removing  the  county  seat  was 
passed  by  the  board  of  supervisors 
upon  the  condition  that  "suitable 
guarantees  should  be  given,  provid- 
ing for  the  cost  of  county  buildings 
at  the  new  county  seat,"  a  submis- 
sion to  the  vote  of  the  people  of  the 
question  of  removal  alone,  without 
the  condition,  rendered  the  election 
void. 

Bagot  v.  Antrim  County  Sup'rs,  43 
Mich.  577. 

321  Varner  v.  Simmons,  33  Ark. 
212;  Coleman  v.  People,  7  Colo.  App. 
243,  42  Pac.  1041;  Adams  v.  Smith, 
6  Dak.  94;  Smith  v.  Magourich,  44 
Ga.  163;  Conley  v.  Fleming,  14  Kan. 
381;  In  re  County  Seat  of  Linn 
County,  15  Kan.  500;  Edwards  v. 
Police  Jury  of  Avoyelles,  39  La.  Ann. 
855,  2  So.  804;  Simpson  v.  Bailey, 
3  Or.  515;  Caruthers  v.  State,  67 
Tex.  132;  Welch  v.  Wetzel  County 
Ct.  29  W.  Va.  63,  1  S.  E.  337. 


§  69 


NAME  AND   BOUNDARIES.  113 


ten  years.322  The  doctrine  of  estoppel  will  apply  to  the  removal 
of  a  county  seat  where  it  has  been  located  in  a  place  for  over  ten 
years  and  during  that  time  two  elections  have  been  held  upon  the 
question  of  change,  each  of  which  has  resulted  in  a  defeat  of  the 
attempt  to  remove  the  same.323  The  expense  of  proceedings  look- 
ing to  the  removal  of  a  county  seat  where  a  town  becomes  a  party 
to  them,  becomes  a  valid  charge  upon  such  town  which  can  be 
collected  in  the  usual  manner.324  The  cost  of  erecting  buildings 
at  the  new  county  seat  is  limited  by  the  power  of  the  authorities 
to  levy  taxes  for  the  purpose  of  constructing  or  repairing  public 
buildings.323  The  general  rule  obtains  that  the  removal  of  a 
county  seat  involves  no  liability  or  obligation  on  the  part  of  the 
public  corporation  for  the  reimbursement  of  those  who  have  made 
donations  because  of  its  location  at  a  particular  place.  The  obli- 
gation for  reconveying  real  property  will  depend  largely  upon 
the  conditions  annexed  to  the  grant.  If  made  unconditionally, 
there  is  no  reverter  to  the  original  grantor  or  his  heirs  but  the 
existence  of  special  conditions  may  create  the  right  to  demand 
a  reconveyance.326  It  is,  of  course,  perfectly  legal  and  in  some 
cases  pre-eminently  just  for  the  legislature  to  authorize  the 
reconveyance  to  the  parties  who  originally  made  donations  of 
such  property  or  their  legal  representatives  and  the  performance 
of  this  duty  by  the  proper  authorities  may  be  enforced.327 

§  69.    Petition  for  removal. 

"When  the  agency  for  the  removal  of  a  county  seat  as  authorized 
by  the  legislature  or  constitutional  provision  is  an  election,  the 

322Cochran   v.   Edwards,    38   Ark.  208;    Twiford   v.  Alamakee  County, 

136;    State   v.   Burton,   47   Kan.   44.  4  G.  Greene  (Iowa)   60;  Kent  Coun- 

But  see  Solomon  v.  Flening,  34  Neb.  ty  Sup'rs  v.  Grand  Rapids,  61  Mich. 

^40,  51  N.  W.  304.  144,   27   N.  W.   888;    Lucas    County 

323Coleman  v.  People,  7  Colo.  App.  Com'rs  v.  Hunt,  5  Ohio  St.  488;  Al- 

243,  42  Pac.  1041.  ley  v.  Denson,  8  Tex.   297;    Cooley, 

324  Wells  v.  Whittaker,  4  111.  App  Const.  Lim.  (4th  Ed.)  p.  481. 

381.  327  Harris    v.    Whiteside     County 

325Callam  v.  City  of  Saginaw,  50  Sup'rs,  105  111.  445;   but  in  Wilkin- 

Mich.  7.  son  v.  Cheatham,  43  Ga.  258,  it  was 

sse  Adams  v.  County  of  Logan,  11  held  that  the  legislature  could  corn- 
Ill.  337;  Harris  v.  Shaw,  13  111.  463.  pel  a  county  to  pay  the  damages 
But  see  Megret  v.  Vermillion,  10  La.  resulting  to  property  owners  of  the 
Ann.  670;  Armstrong  T.  Dearborn  town  by  the  removal  of  the  county 
County  Com'rs,  4  Blackf.  (Ind.)  seat. 

Abb.  Corp. — 8. 


114  CORPORATE  LIFE;  EXISTENCE.  «   70 

proceedings  are  usually  initiated  by  the  drafting  of  a  petition 
in  the  form  and  containing  the  averments  required  by  law,  with 
its  presentation  to  and  consideration  by  a  designated  official 
body.3-8  This  body  is  vested  with  discretionary  powers  upon 
the  sufficiency  of  the  petition,  both  in  form  and  subject-matter, 
and  their  decisions  in  this  regard  ordinarily,  in  the  absence  oi 
fraud,  are  conclusive  and  cannot  be  inquired  into  by  courts  of 
law.329  They  may  be  limited,  however,  both  as  to  their  manner  of 
action  and  determination  of  questions  by  statutory  rules  and  pro- 
visions.330 Statutory  provisions  relating  to  the  filing  of  a  peti- 
tion and  the  establishment  of  the  county  seat  will  not  ordinarily 
prevent  successive  and  subsequent  petitions,  though  the  granting 
of  these  petitions  and  the  elections  held  will  be  controlled  by  stat- 
ute.331 Interested  parties  have  the  right  to  examine  all  papers 
on  file  in  connection  with  removal  proceedings,  including  the  pre- 
liminary petition  for  the  election.332 

§  70.    Its  form  and  averments. 

Although  the  commissioners  designated  by  law  to  whom  the 
petition  should  be  presented  have  discretionary  powers  in  regard 
to  its  sufficiency  in  averments  and  form,  it  is,  nevertheless,  true 
that  it  must  contain  those  required  by  law  and  necessary  to  give 
jurisdiction  to  the  commissioners,333  and  if  its  form  is  prescribed 
by  the  statutes,  a  variation  from  this  will  be  likely  to  render  the 
proceedings  void.334  The  reason  for  this  rule  seems  to  be  that 

328Lanier  v.  Padgett,  18  Fla.  842;  sso  Herrick  v.  Carpenter,  54  Iowa, 

Douglass   v.   Baker  County   Com'rs,  349. 

23  Fla.  419,  2  So.  776;  Mode  v.  Beas-  asi  Kent  v.  Sigler,  158  Ind.  214,  62 

ley,  143  Ind.  306;  Benton  v.  Nason,  N.   E.  491. 

26  Kan.  658;  Alley  v.  Benson,  8  Tex.  332  Ayres   v.   Moan,   34   Neb.   210; 

297.  Crews  v.  Coffman,  36  Neb.  824. 

329  Markle  v.  Clay  County  Com'rs,  sss  Clay  County  Com'rs  v.  Markle, 

55  Ind.  185;    In  re  County  Seat  of  46  Ind.  96;   Jackson  County  Com'rs 

Linn  County,  15  Kan.  500;   Slinger-  v.  State,  147  Ind.  476,  46  N.  E.  908; 

land  v.  Norton,  59  Minn.  351;   State  McKinney      v.      Bradford      County 

V.   Langlie,    5   N.  D.   594,   67   N.   W.  Com'rs,  26  Fla.  267;   State  v.  Stock, 

958;  Baker  v.  Louisa  County  Sup'rs,  38  Kan.  154,  16  Pac.  106;   Doolittle 

40  Iowa,  226;  Bennett  v.  Hethering-  v.  Cabell  County  Ct,  28  W.  Va.  158. 

ton,  41   Iowa,  142;    Herrick  v.  Car-  334  Benton  v.  Nason,  26  Kan.  658. 

penter,  54  Iowa,  340;  Currie  v.  Paul-  In  this  case  the  statute  prescribed 

son,     43     Minn.     411.     But     contra,  no  form  and  it  was  held  that  a  peti- 

Rickey  v.  Williams,  8  Wash.  479.  tion  distinctly  expressing  the  wish 


§  71  NAME   AND   BOUNDARIES.  H5 

the  removal  of  a  county  seat  contemplates  the  affecting  or  change 
of  rights  established  but  not  vested  in  their  character,  and  that 
in  order  to  destroy  these,  technical  statutory  provisions  must 
be  strictly  complied  with.  The  courts  will  not  look  so  much  to 
the  substance  of  the  proceedings  in  these  preliminary  matters,  but 
to  the  technicalities.335 

Another  reason  is  that  the  legislature  originally  had  and  ever 
retains,  in  the  absence  of  constitutional  provision,  the  right  of 
control  over  the  location  of  county  seats,  and  as  the  availability 
of  this  right  exists  in  statutes  these  must  be  strictly  followed. 

Amendments  to  the  petition  when  made  within  a  time  not  affect- 
ing the  validity  of  the  proceedings  will  be  considered  proper.339 

§  71.    Petition  and  its  signers. 

There  is  less  difficulty  in  determining  the  proper  form  and  aver- 
ments of  a  petition  for  the  .removal  of  a  county  seat  than  in 
ascertaining  the  right  to  sign.  The  law  usually  limits  such  right 
to  "qualified"  or  "legal  voters,"337  "residents"  or  "resident 
electors."338  "property  owners"339  or  "householders,"  and  pre- 
scribes as  the  requisite  number  "one-third,"340  "one-half,"  "two- 
thirds,"  "a  number  greater  than  the  remonstrants,"341  or  some 
other  proportion.342  In  counting  the  signers  to  the  petition, 

of  the  petitioners  was  sufficient,  the  sss  Ayres  v.  Moan,  34  Neb.  210. 

precise   language   being  immaterial.  339  Crafford    v.    Warwick    County 

sss  in  re  Dallas  Boundary  Line,  10  Sup'rs,    87    Va.    110,    12    S.    E.    147. 

Kulp   (Pa.)    64;   Ayres  v.   Moan,  34  The  term  "person"  as  used   in  the 

Neb.  210.  statute,  "upon  the  application  of  per- 

sae  Mode  v.  Beasley,  143  Ind.  306.  sons  paying  one-third  of  the  taxes 

33-  Loomis  v.  Bailey,  45  Iowa,  400;  on    real    estate,"    includes    corpora- 
Mode  v.  Beasley,  143  Ind.  306;  Wil-  tions  paying  taxes  on  real  estate  as 
son  v.  Bartlett,  7  Idaho,  271,  62  Pac.  well  as  natural  persons. 
416;     State    v.    Eggleston,    34    Kan.  s*o  Butler  v.    Mills,    61    Ark.   477; 
714;    State   v.   Polk  County   Sup'rs,  Loomis  v.  Bailey,  45  Iowa,  400. 
88  Wis.  355.  s*i  Loomis  v.  Bailey,  45  Iowa,  400. 

Crews    v.    Coffman,    36    Neb.    824.  342  Mode  v.  Beasley,  143  Ind.  306; 

Where  objection  is  made  to  a  peti-  State  v.  Stock,  38  Kan.  154,  16  Pac. 

tion  on  the  ground  that  some  of  the  106;  State  v.  Phillips  County  Com'rs, 

signers  are  minors,  other  names  are  26  Kan.  419;  State  v.  Butler  County 

fictitious,  and  still  others  signed  un-  Com'rs,   31   Kan.   460;    State   v.   Eg- 

der   improper    influences,    it    is    the  gleston,   34   Kan.   714.     "Three-fifths 

duty  of  the  board  to  set  a  time  for  of  the  legal  electors."     Crews  v.  Coff- 

the  hearing  of  these  objections.  man,  36  Neb.  824. 


CORPORATE  LIFE;  EXISTENCE.  §73 

names  appearing  upon  both  the  petition  for  and  the  remonstrance 
to  the  change  of  county  seat,  or  those  whose  names  have  been 
procured  by  bribery  or  the  offer  of  a  bonus,  or  signers  expressing 
a  desire  to  withdraw  from  the  petition,  should  be  deducted  in 
order  to  ascertain  whether  the  legal  number  have  signed.343  The 
designation  of  the  residence  of  signers  by  the  use  of  ditto  marks 
has  been  held  sufficient.3" 

§  72.    Signers'  right  of  withdrawal. 

That  a  qualified  resident  property  owner  has  signed  a  petition 
asking  for  an  election  looking  to  the  removal  of  a  county  seat 
does  not  bar  him  from  subsequently  withdrawing  his  name.  The 
act  of  signing  is  optional.345  Such  withdrawal  should  be  made, 
however,  before  action  upon  the  petition  by  the  proper  authori- 
ties.346 

§  73.    Petition  for  removal;  its  filing.    Notice. 

The  filing  of  a  petition  showing  on  its  face  the  required  num- 
ber of  qualified  signers  is  sufficient  to  give  the  commissioners 
authority  to  act  upon  the  question  of  removal347  by  making  an 
official  order  for  an  election  to  be  held  in  the  manner  and  time 
provided  by  law,  at  which  those  entitled  shall  vote  upon  the  ques- 
tion submitted.  In  order  to  insure  its  validity,  notice  must  be 
given  of  the  election  for  the  length  of  time  before  its  date  and 

3*3  Jamison     v.     Louisa     County  County,    32    Tex.    17;    Worsham    v. 

Sup'rs,    47    Iowa,    388;    Duffees    v.  Richards,  46  Tex.  441. 

Sherman,    48    Iowa,   287;    Ayres   T.  Doolittle  v.  Cabell  County  Ct.,  28 

Moan,  34  Neb.  210;   State  v.  ^gles-  W.  Va.  159.     When  a  petition  as  pre- 

ton,  34  Kan.  714.  scribed  by  law  is  presented  to  the 

s**  Wilson  v.  Bartlett,  7  Idaho,  271,  county  court  duly  verified  by  affida- 

62  Pac.  416.  vit  and  signed  by  the  requisite  num- 

3*5  Slingerland  v.  Norton,  59  Minn,  ber  of  legal  voters  of  the  county  to 

351;    State   v.   Geib,   66   Minn.   266;  permit  it  to  be  filed  and  have  the 

State  v.  Crow  Wing  County  Com'rs,  order  made  as  prayed  for,  the  court 

66  Minn.  519.  has  no  discretion  to  refuse  the  filing 

346  state      v.      Nemaha      County  of  such   petition   or  the  making  of 
Com'rs,    10    Neb.    32;    La   Londe   v.  the    necessary    order    requested.     It 
Barren  County  Sup'rs,  80  Wis.  380;  becomes  then  an  absolute  and  min- 
State  v.  Polk  County  Sup'rs,  88  Wis.  isterial  duty  imposed  upon  the  coun- 
355.  ty  court,  the  performance  of  which 

347  State  v.  Lien,  9  S.  D.  297,  68  can  be  compelled  by  mandamus. 
N.    W.    748;    McClelland    v.    Shelby 


§   74  NAME   AND   BOUNDARIES.  117 

in  the  manner  required  by  the  provisions  of  the  statute.  Legal 
notice  is  necessary  to  the  legality  of  subsequent  steps.  Notice  to 
interested  parties  is  an  essential  element  to  the  validity  of  pro- 
ceedings whatever  their  nature.  The  statute  may  provide  the 
form  of  this  notice348  and  designate  the  manner  of  its  publication 
or  service3*9  in  the  case  of  special  proceedings  looking  to  the 
removal  of  a  county  seat.  Or  if  the  election  is  held  pursuant  to 
general  election  statutes,  the  forms  and  the  modes  prescribed  by 
them  must  be  strictly  followed.350  The  technical  provisions  of 
the  law  govern.  The  precise  time  for  the  giving  of  notice  is  dis- 
cretionary with  the  commissioners  where  the  margin  of  time  is 
sufficient.351  When  commissioners  have  power  to  pass  upon  the 
question  of  removal,  the  same  rules  apply,  regarding  the  giving 
of  notice  prior  to  action  upon  the  petition.352 

§  74.    Official  action. 

In  proceedings  for  the  removal  of  a  county  seat,  the  next  step 
is  an  order  by  the  proper  tribunal  calling  an  election.  It  is  need- 
less to  say  that  such  an  order  depends  for  its  validity  on  all  pre- 
ceding acts.  In  many  cases,  where  not  otherwise  provided  by 
law,  the  courts  have  held  that  the  ordering  of  an  election  is  not 
a  discretionary  matter,  but  imperative  upon  the  filing  of  the 
proper  petition.  The  authority  to  make  such  order,  however, 
must  exist.353  The  performance  of  this  duty  can  be  enforced  by 
mandamus.354  It  seems  that  the  number  of  elections  held  may 
not  be  limited  so  long  as  they  successively  result  in  a  defeat  of 

3*8  Attorney  General  v.  Iron  Coun-  W.  539;    State   v.   Langlie,   5  N.   D. 

ty  Canvassers,   64   Mich.   607,  31  N.  594,  67  N.  W.  958. 

W.   539;   Attorney  General  v.   Lake  351  Lake  County  Com'rs  v.  State, 

County  Sup'rs,  33  Mich.  289;    Peck  24  Fla.  263,  4  So.  795;   Doan  v.  Lo- 

v.  Berrien  County  Sup'rs,  102  Mich,  gan  County  Com'rs,  2  Idaho,  781,  26 

346;     People    v.    Hamilton    County  Pac.  167. 

Com'rs,  3  Neb.  244;  Whitaker  v.  Dil-  352  state  v.   Scott  County  Com'rs, 

lard,  81  Tex.  359.  42   Minn.   284;    State   v.   Butler,   81 

34»Dishon  v.  Smith,  10  Iowa,  212;  Minn.  103,  83  N.  W.  483. 

State  v.  Sherman  County  Com'rs,  39  ssa  Brown  v.  State,  44  Kan.  291,  24 

Kan.  293,  18  Pac.  179;  State  v.  Scott  Pac.  345. 

County  Com'rs,  43  Minn.  322;  Welch  354  Wells  v.  Ragsdale,  102  Ga.  53, 

v.  Wetzel  County  Ct.,  29  W.  Va.  63,  29  S.  E.  165;  Jackson  County  Com'rs 

1  S.  E.  337.  v.  State,  147  Ind.  476,  46  N.  E.  908; 

aso  Attorney  General  v.  Iron  Coun-  Slingerland  v.  Norton,  59  Minn.  351; 

ty  Canvassers,  64  Mich.  607,  31  N.  State  v.  Garrett,  76  Mo.  App.  295; 


118  CORPORATE  LIFE;  EXISTENCE.  §   75 

the  attempt  to  remove  the  county  seat.355  Some  authorities  hold 
that  after  the  order  for  the  election  is  made 'its  validity  cannot 
be  contested  on  the  ground  that  a  less  number  than  required  by 
statute  signed  the  petition  or  application.356 

§  75.    Time  and  manner  of  election. 

The  provisions  of  the  statute  or  constitution  with  regard  to  the 
time  and  manner  of  holding  an  election  must  be  strictly  followed 
or  it  may  be  considered  invalid.  This  is  true  whether  these  par- 
ticulars are  specified  in  the  law  or  by  the  commissioners  acting 
thereunder.357  The  election  when  held  must  be  at  the  place, 
on  the  day,  and  within  the  hours  designated.358  Attempts  at 
bribery359  or  intimidation,360  or  fraudulent  acts  by  the  officers  of 
election,  have  each  been  held  sufficient  to  render  it  void.  It  is 
the  imperative  duty  of  the  inspectors  or  officers  in  charge  not  only 
to  refrain  from  doing  these  acts  but  to  prevent  others.361  What 
constitutes  bribery  or  when  is  a  bonus  offered  of  such  a  char- 
acter as  to  be  considered  a  bribe,  are  questions  often  raised,  and 
in  some  cases  the  dividing  line  between  an  illegal  attempt  to 
influence  voters  and  a  proper  offer  of  public  advantage  becomes 
doubtful  and  difficult  to  distinguish.362  The  offer  by  individuals 
or  localities  to  construct  county  buildings  is  not  usually  consid- 
ered the  offer  of  a  bribe  so  as  to  invalidate  an  election  at  which 
the  change  is  made.363 

Scarbrough  v.  Eubank,  93  Tex.  106;  Sup'rs,  11  Iowa,  552;  Mather  v.  Con- 

Rayner  v.  Forbes   (Tex.  Civ.  App.)  verse,  12  Iowa,  352. 

52  S.  W.  568;   La  Londe  v.  Barren  359  Rice    v.    Smith,    9    Iowa,    570; 

County  Sup'rs,  80  Wis.  380.  Sweatt    v.    Faville,    23    Iowa,    321; 

355Atherton  v.  San  Mateo  County  State  v.  Malo,  42  Kan.  54,  120;   fol- 

Sup'rs,  48  Cal.  157.  lowed  in  State  v.  Dillman,  42  Kan. 

see  Clarke  County  Com'rs  v.  State,  96;    State   v.   Fulton,   42  Kan.   164; 

61  Ind.  75;  Baker  v.  Louisa  County  State  v.  Sullivan,  44  Kan.  43. 

Sup'rs,    40    Iowa,    226;    Bennett    v.  sso  state  v.  Kearny  County  Com'rs, 

Hetherington,  41  Iowa,  142;   Currie  42  Kan.  739. 

v.  Paulson,  43  Minn.  411;    State  v.  sei  state  v.  Malo,  42  Kan.  54,  120; 

Nelson,  21  Neb.   572;    State  v.  Goo-  followed    in    State    v.    Dillman,  42 

win,  69  Tex.  55;   Scarbrough  v.  Eu-  Kan.  96. 

bank,  93  Tex.  106.  362  Berry  v.  Hull,  6  N.  M.  643. 

357  Gossard  v.  Vaught,  10  Kan.  162;  sea  Neal   v.   Shinn,  49  Ark.   227,  4 

State  v.  Washoe  County,  6  Nev.  104.  S.  W.  771;  Douglass  v.  Baker  Coun- 

sss  state  v.  Baker  County  Com'rs,  ty  Com'rs,   23   Fla.   419;    Thompson 

22  Fla.  29;   Cole  v.  Jackson  County  v.  Mercer  County  Sup'rs,  40  111.  379. 


g   75  NAME  AND   BOUNDARIES. 

In  Douglass  v.  Baker  County  Com'rs,  cited  supra,  the  court 
said:  ""We  do  not  think  the  offer  of  McClenny  to  build  a  court 
house  at  Macclenny,  if  the  voters  would  locate  the  county  site 
there,  and  his  performance  of  the  offer,  invalidates  the*  election. 
*  *  *  The  authorities  recognize  such  offers  of  public  conveii- 
..ence  as  legitimate  in  such  contests.  They  cannot  be  regarded 
as  corrupt  agencies  or  as  influencing  corrupt  voting.  The  locality 
as  to  which  such  offers  are  made  presents  itself  in  the  contest  as 
possessing  the  improvements  or  facilities  covered  by  the  offer,  and 
where  these  improvements  are  made  in  accordance  with  the  offer, 
there  is  no  deception  or  fraud.  It  is  unlike  the  case  of  a  candi- 
date for  office  who  proposes  to  the  electors  to  take  for  his  services 
if  elected,  less  than  the  legal  salary,  and  undertakes  thereby  to 
overcome  the  honest  objection  of  a  voter  on  account  of  deficiencies 
believed  to  exist  in  him  as  a  proper  person  for  the  office.  The 
latter  case  may  involve  the  integrity  of  the  government  and  the 
unfitness  of  officials,  while  the  former  does  not,  but  only  offers  to 
supply  an  actual  public  convenience."  The  failure  on  the  part 
of  election  inspectors  to  take  the  required  oath  does  not  neces- 
sarily invalidate  the  election  or  the  votes  cast.364  In  Michigan  it 
is  held  that  where  the  question  of  removal  is  before  the  electors 

Dishon  v.  Smith,  10  Iowa,  212.  the  county,  by  the  location,  or  by  a 
The  court  said:  "We  do  not  think  change  of  location.  And  this  can- 
the  giving  facilities  for  the  public  not  be  bribery.  And  it  may  be 
convenience  to  the  whole  county,  doubted  whether  such  an  act  can 
such  as  furnishing  a  building  for  become  bribery  when  the  offer  is  to 
the  courts  and  offices,  and  thus  re-  the  whole  county,  and  upon  a  mat- 
lieving  the  county  from  a  burden  of  ter  of  county  interest  only.  In  a 
expense,  amounts  to  bribery.  Nor  case  like  the  present,  there  is  no 
would  the  giving  property,  though  duty  upon  the  county  from  which 
not  of  that  specific  character,  but  yet  it  or  its  citizens  may  be  induced  to 
adapted  to  reducing  the  expense  of  swerve.  They  may  adopt  which 
a  change.  If  the  people  of  a  town  place  they  see  fit,  and  it  is  offering 
desire  a  county  seat  located  at  such  additional  inducements  only  in  fa- 
place,  there  is  no  wrong  and  no  cor-  vor  of  one,  to  offer  as  above  men- 
ruption  in  their  offering  and  giv-  tioned."  Attorney  General  v.  Lake 
ing  facilities  to  produce  that  result.  County  Sup'rs,  33  Mich.  289;  Wells 
Either  in  buildings  and  offices  direct,  v.  Taylor,  5  Mont.  202,  3  Pac.  255; 
for  the  use  of  the  public,  or  in  prop-  State  v.  Purdy,  36  Wis.  225.  See, 
erty  or  money  to  procure  the  facili-  also,  15  L.  R.  A.  501. 
ties,  they  may  offer  to  take  away  or  364  state  v.  Baker  County  Com'rs, 
to  lessen  the  pecuniary  burden  22  Fla.  29. 
which  would  come  upon  that  public, 


120  CORPORATE  LIFE;  EXISTENCE.  §77 

it  is  not  necessary  to  have  separate  ballots  reading  "for"  and 
"against"  the  proposition,  but  a  single  ballot  with  both  theso 
words  upon  it  and  a  space,  within  which  the  voter  can  designate 
his  choice,  is  sufficient.365 

§  76.    Qualifications  of  voters. 

The  legislature  has  the  right  to  determine'  the  qualifications  of 
voters  at  an  election  for  the  removal  of  a  county  seat,  and  some 
of  these  have  already  been  suggested  in  section  71  discussing  qual- 
ifications of  signers  to  the  petition  for  removal.  The  law  usually 
limits  the  right  of  signing  the  petition  to  those  who  can  vote 
thereafter  at  the  election.  Various  phrases  are  used,  as  "quali- 
fied electors,"  "residents,"  "qualified  voters."366 

§  77.    Votes  necessary  to  a  removal. 

The  continual  reference  to  the  absolute  power  of  the  legislature 
to  determine  all  the  questions  looking  to  the  organization,  gov- 
ernment, and  administration,  of  the  affairs  of  public  corporations, 
may  seem  unnecessary,  but  in  order  to  understand  the  questions 
discussed  from  time  to  time  this  absolute  power  must  be  kept 
constantly  in  mind.  The  only  limitations  upon  the  legislature 
are  constitutional  provisions,  if  such  exist,  otherwise  the  legisla- 
ture, as  being  the  law-making  power  of  the  sovereign,  is  free  to 
act.  It  has  therefore  the  right  to  determine  not  only  the  eligi- 
bility of  voters  but  also  the  number  of  votes  necessary  to  effect 
the  removal  of  a  county  seat,  and  the  phrases  which  we  find  in 
the  decisions  are  repetitions  of  statutory  or  constitutional  words 
which  control.  The  existence  of  a  constitutional  provision  that 
no  county  seat  shall  be  changed  "without  the  consent  of  a  major- 
ity of  the  qualified  voters  of  the  county"  does  not  prevent  the 
legislature  from  passing  a  law  providing  that  a  larger  vote  shall 
be  requisite  to  such  change.367  Some  of  the  phrases  used  are 

365  Peck  v.  Berrien  County  Sup'rs,  367  st.    Joseph   Tp.   v.    Rogers,    83 
102  Mich.  346.  U.  S.  (16  Wall.)  644;  McCrary,  Elec- 

366  state   v.   Crook,   126   Ala.   600,  tions,  §  183  et  seq.;   Vance  v.  Aus- 
28   So.  745;    Saunders  v.  Erwin,   49  tell,  45  Ark.  400;  Hawkins  v.  Carroll 
Ark.  376,  5  S.  W.  703;  Eagle  County  County  Sup'rs,   50  Miss.   735;    State 
Com'rs   v.    People,   26   Colo.   297,    57  v.  Renick,  37  Mo.  272;   Louisville  & 
Pac.  1080;   State  v.  Stock,   38  Kan.  N.  R.   Co.   v.   Davidson   County  Ct, 
154,  16  Pac.  106;    Hall  v.  Marshall,  33   Tenn.    (1  Sneed)    692;    Cocke   v. 
80  Ky.  552.  Gooch,    52    Tenn.    (5    Heisk.)     294; 


§  77 


NAME  AND   BOUNDARIES. 


121 


"majority  of  the  qualified  voters  of  the  county,"  "majority 
vote,"  "majority  of  the  electors,"368  "two-thirds  of  all  the  legal 
votes  cast,"369  "plurality  of  votes  cast,"370  "fifty-five  per  cent,"371 
or  "three-fifths."372 


Bouldin  v.  Lockhart,  69  Tenn.  (1 
Lea)  195. 

ses  Blackshear  v.  Turner,  53  Ark. 
533;  Brown  v.  State,  44  Kan.  291; 
Alexander  v.  People,  7  Colo.  155; 
People  v.  Wiant,  48  111.  263;  State  v. 
Grace,  20  Or.  154;  Adkins  v.  Lien, 
10  S.  D.  436,  73  N.  W.  909;  State  v. 
Porter,  13  S.  D.  126;  Groves  v.  Grant 
County  Ct,  42  W.  Va.  587. 

Alley  v.  Denson,  8  Tex.  297.  To 
effect  the  removal  of  a  county  seat, 
a  majority  only  of  all  the  votes  cast 
is  required,  not  a  majority  of  all  the 
qualified  electors  at  such  election. 

Worsham  v.  Richards,  46  Tex.  441; 
Ex  parte  Towles,  48  Tex.  413. 

Taylor  v.  Taylor,  10  Minn.  .  107 
(Gil.  81).  The  court  in  this  case 
construing  Minn.  Const,  art.  11,  §  1, 
"and  all  laws  changing  county  lines 
in  counties  already  organized  or  for 
removing  county  seats  shall,  before 
taking  effect,  be  submitted  to  the 
electors  of  the  county  or  counties  to 
be  affected  thereby  at  the  next  gen- 
eral election  after  the  passage  there- 
of and  be  adopted  by  a  majority  of 
such  electors,"  said,  "The  plaintiff 
claims  that  this  section  requires  an 
absolute  majority  of  those  qualified 
to  vote  in  the  county  at  the  time  of 
the  election.  This  construction  is 
perhaps  in  accordance  with  the  let- 
ter of  the  constitution,  but  it  leads 
to  such  practical  inconvenience, 
hardship,  and  absurdity,  we  cannot 
believe  it  to  be  in  accordance  with 
the  spirit  and  meaning  of  that  in- 
strument. It  will  be  observed  that 
the  returns  of  the  canvassing  offi- 


cers would  not  be  even  prima  facie 
evidence  of  the  result  of  such  elec- 
tion, for  such  returns  could  only 
show  the  numbers  voting  and  the 
result  of  the  vote.  In  every  case  it 
would  be  necessary,  if  this  construc- 
tion is  correct,  to  show  by  legal  evi- 
dence the  actual  number  of  persons 
legally  qualified  to  vote  in  the  coun- 
ty at  the  time  of  such  election,  and 
we  are  unable  to  see  how  this  could 
be  determined  except  by  a  suit  or 
proceeding  in  a  court  qualified  to 
decide  authoritatively  and  finally 
such  questions.  The  difficulty  of 
making  such  proof  in  many  cases 
would  be  so  great  as  to  make  it  im- 
practicable." See,  also,  as  sustain- 
ing this  rule,  Vance  v.  Austell,  45 
Ark.  400;  People  v.  Warfield,  20  111. 
159;  Bayard  v.  Klinge,  16  Minn.  249 
(Gil.  221);  Everett  v.  Smith,  22 
Minn.  53;  State  v.  Sutterfield,  54 
Mo.  391.  But  see  Braden  v.  Stumph, 
84  Tenn.  (16  Lea)  581,  which  holds 
that  there  must  be  an  active  con- 
currence of  the  qualified  voters  of  a 
county,  not  a  passive  acquiescence, 
and,  therefore,  the  required  propor- 
tion of  the  qualified  electors  must 
actually  vote  in  favor  of  the  re- 
moval. 

369  People  v.  Grand  County  Com'rs, 
7  Colo.  190;  Eagle  County  Com'ra 
v.  People,  26  Colo.  297,  57  Pac.  1080; 
Wells  v.  Ragsdale,  102  Ga.  53;  Hogg 
v.  Baker,  17  Ky.  L.  R.  577,  31  S.  W. 
726;  State  v.  Sutterfield,  54  Mo.  391; 
State  v.  Langlie,  5  N.  D.  594,  67  N. 
W.  958;  Stuart  v.  Bair,  67  Tenn.  (8 
Baxt.)  141;  Bouldin  v.  Lockhart,  69 


122 


CORPORATE  LIFE;  EXISTENCE. 


§  78.    Canvass  and  return  of  votes. 

It  generally  becomes  the  duty  of  the  commissioners,  after  the 
election  has  been  held  for  the  removal  of  a  county  seat,  to  meet, 
canvass  the  returns,  and  declare  the  result  of  the  election.373  This 
duty  is  a  continuing  one.  When  one  set  of  election  officers  have 
been  prevented  by  injunction,  or  other  reason,  from  declaring  the 
result  as  to  certain  precincts,  it  then  becomes  the  duty  of  their 
successors  on  the  dissolution  of  the  injunction,  to  canvass  and 
return  those  votes.374  If  the  intent  of  the  voter  is  clear  from  the 
ballot  cast,  although  it  may  not  be  as  definite  as  desired,  this  is 
sufficient  to  warrant  the  counting  of  the  ballot.375  The  canvass- 


Tenn.  (1  Lea)  195;  Caruthers  r. 
State,  67  Tex.  132;  State  v.  Alcorn, 
78  Tex.  387. 

370  State  v.   Padgett,  19   Fla.   518. 
A     constitutional     provision    which 
prescribes  that  "a  plurality  of  votes 
given   at  an  election  by  the  people 
shall  constitute  a  choice  when  not 
otherwise   provided  by   this  Consti- 
tution"  was  probably  not  intended 
to  cover  any  other  cases  than  elec- 
tion of  officers;  "and  it  is  reasonable 
to  suppose  that  in  the  choice  of  a 
place  which  would  be  most  conven- 
ient for  the  people  to  transact  their 
county    business    the    wishes    of    a 
majority  of  the  voters  who  felt  an 
interest  in  the  matter  should  be  con- 
sulted,   rather    than    that    a    small 
minority  of  the  whole,  in  a  contest 
between  half  a  dozen  or  more  locali- 
ties, should  prevail." 

371  Smith      v.      Renville      County 
Com'rs,    64    Minn.    16.      All    ballots 
cast,  unintelligible  as  well  as  other- 
wise, must  be   considered  in  ascer- 
taining the  required  percentage. 

372  state   v.   Roper,   46   Neb.    724; 
Peck  v.  Berrien  County  Sup'rs,  102 
Mich.  346. 

Davis  v.  Brown,  46  W.  Va.  716,  and 
cases  cited.  This  case  also  holds 
that  where  the  act  requires  for  re- 
location three-fifths  of  all  the  votes 


cast  at  such  election  upon  the  ques- 
tion, the  relocation  is  carried, 
though  the  votes  cast  on  this  par- 
ticular proposition  are  less  than 
three-fifths  of  the  votes  cast  upon 
other  matters. 

373  Herrick  v.  Carpenter,  54  Iowa, 
349.     In  Pinkerton  v.  Staninger,  101 
Mich.  273,  59  N.  W.  611,  the  deter- 
mination of  the  supervisors  in  can- 
vassing  and    declaring  the   vote  in 
removal  proceedings  is  held  conclu- 
sive,  the  law  providing  for  no  ap- 
peal. 

State  v.  Nerland,  7  S.  C.  (7  Rich.) 
241;  State  v.  Hicks  (Tenn.  Ch. 
App.)  52  S.  W.  691;  Ex  parte 
Towles,  48  Tex.  413. 

Brown  v.  Randolph  County  Ct.,  45 
W.  Va.  827,  32  S.  E.  165.  Under  the 
statutes  the  county  court  has  au- 
thority to  canvass  and  announce  the 
result  of  an  election  for  relocation 
of  county  seat.  State  v.  Fetter,  12 
Wis.  566,  construing  Wis.  Gen.  Laws 
1860,  c.  110. 

374  state  v.  Kearny  County  Com'rs, 
42  Kan.  739.     Davis  v.  Police  Jury 
of  Bossier  Parish,  42  La.  Ann.  968. 
This  case  also  discusses  effect  upon 
official  action  of  an  injunction  prop- 
erly served. 

Ewing  v.  Duncan,  81  Tex.  230. 

375  Blackshear  v.  Turner,  53  Ark. 


g  79  NAME  AND   BOUNDARIES.  123 

ing  board  must  meet  as  a  collective  body  and  perform  their 
duties,  including  the  declaration  of  the  result,  in  their  official 
capacity,376  which  is  usually  considered  conclusive  in  the  absence 
of  fraud.377  Properly  identified  duplicate  returns  of  votes  from 
election  precincts  where  the  originals  have  been  lost  or  destroyed 
can  be  used.378  Provisions  of  the  statute  concerning  the  manner 
of  making  returns  when  mandatory  must  be  strictly  followed, 
otherwise,  when  considered  discretionary  or  directory  in  their 
character,379  a  substantial  compliance  with  the  law  is  sufficient. 

§  79.     Contests. 

The  result  of  an  election  held  to  determine  the  relocation  of 
a  county  seat  may  be  contested  either  apon  jurisdictional  grounds 
or  questions  pertaining  to  the  manner  and  time  of  the  election  or 
the  canvass  and  return  of  votes.  It  is  impossible  to  state  a 
general  rule  applying  to  contests.  The  provisions  of  the  law 
relating  to  all  of  the  proceedings  may  differ  in  each  state.  They 
are  construed  strictly  and  technically.  Different  remedies  may 
be  provided  by  the  different  states  for  the  correction  of  errors. 
The  two  favorite  remedies  are  mandamus380  and  injunction,381 
though  others  are  used.382  The  remedial  statutes  of  each  state, 

533;  Whitaker  v.  Dillard,  81  Tex.  sso  Terr.  v.  Mohave  County  Sup'rs 
359.  See,  also,  People  v.  Grand  (Ariz.)  12  Pac.  730;  State  v.  Ham- 
County  Com'rs,  7  Colo.  190,  2  Pac.  ilton  County  Com'rs,  35  Kan.  640; 
912.  State  v.  Stearns,  11  Neb.  104;  Mc- 

376  Cole  v.  Jackson  County  Sup'rs,  Whirter    v.    Brainard,    5    Or.    426; 
11  Iowa,  552:   State  v.  Harwood,  36  State  v.  Porter,  15  S.  D.  387,  89  N. 
Kan.  236;  State  v.  Judge  Second  Ju-  W.    1012;    Poteet   v.   Cabell    County 
dicial   Dist.   Ct,  43  La.  Ann.  125,  9  Com'rs,  30  W.  Va.  58,  3  S.  E.  97. 

So.  348.  ssi  Mitchell    v.   Lasseter,    114    Ga. 

377  Hipp  v.  Board  Charlevoix  Coun-  275,   40    S.   E.   287;    Doan  v.  Logan 
ty  Sup'rs,  62  Mich.   456.     See  State  County  Com'rs,  2  Idaho,  781,  26  Pac. 
v.  Whitney,  12  Wash.  420,  holding  a  167;     Du    Page    County    Sup'rs    v. 
canvassing    board    not    estopped    to  Jenks,  65  111.  275;   Todd  v.  Rustad, 
deny  their  authority  to  canvass  re-  43   Minn.  500. 

turns.     Heffner  v.  Snohomish  Coun-  Caruthers  v.  Harnett,  67  Tex.  127, 

ty  Com'rs,  16  Wash.  273.  2  S.  W.  523.     A  court  of  equity  has 

378  state  v.  Kearny  County  Com'rs,  no   jurisdiction   to    determine   ques- 
42  Kan.  739.  tions  raised  on  contest. 

379  Welch  v.  Wetzel  County  Ct.,  29  Rickey  v.  Williams,  8  Wash.  479. 
W.  Va.   63,  1  S.  E.  337;    Heffner  v.  ssa  Willeford  v.  State,  43  Ark.  62; 
Snohomish  County  Com'rs,  16  Wash.  Herrick  v.  Carpenter,  54  Iowa,  349; 
273.  Mode  v.  Beasley,  143  Ind.  306;  State 


124  CORPORATE  LIFE;  EXISTENCE.  §  SO 

however,  are  construed  liberally,  which  in  a  contest  gives  a  cer- 
tain degree  of  advantage  in  the  use  of  a  remedy.  The  required 
contest  papers  must  show  affirmatively  upon  their  face  the  error 
desired  to  be  corrected,  and  that  if  true  such  result  must  neces- 
sarily follow.383  In  judicial  proceedings  contesting  the  result  of 
an  election  removing  a  county  seat,  ordinary  rules  of  practice 
as  to  the  introduction  of  evidence  apply  ;384  and  an  elector  of  the 
county  is  held  to  have  sufficient  interest  to  entitle  him  to  con- 
test such  election  on  the  ground  of  the  unconstitutionality  of  the 
law  authorizing  it.385  If  on  appeal  the  error  assigned  be  found 
harmless,  the  proceedings  will  not  be  held  void.386 

§  80.    Authority  of  commissioners. 

Statements  have  been  made  in  the  preceding  paragraphs  as  to 
the  legal  nature  or  character  of  the  authority  of  commissioners 
appointed  or  designated  by  the  legislature  to  consider  and  pass 
upon  the  proceedings  necessary  in  the  removal  of  a  county  seat. 
It  is  usually  considered  that  their  action,  upon  the  sufficiency  of 
preliminary  papers  presented  to  them,  is  conclusive  in  the  absence 
of  fraud.387  They  are  not  deemed,  in  the  eye  of  the  law,  judi- 
cial bodies  proper,  though  some  cases  hold  them  to  be  quasi  judi- 
cial. They  are  vested  with  discretionary  powers  in  all  matters 
looking  to  the  carrying  out  of  statutory  provisions  not  manda- 

v.  Ravalli  County  Com'rs,  21  Mont,  of  an  elector,  see  Berry  v.  Hull,  6 

469,  54  Pac.  939;  Remington  v.  Hig-  N.  M.   643,   30  Pac.  936;    Rayner  v. 

gins,  6  S.  D.  313,  60  N.  W.  73;   Ex  Forbes    (Tex.  Civ.   App.)    52   S.   W. 

parte  Towles,  48  Tex.  413.  568.     See   contra,  however,  Thomas 

sss  Wilson  v.  Bartlett,  7  Idaho,  271,  v.  Franklin,  42  Neb.  310. 

62  Pac.  416.     The  court  say:     "The  sse  Mode  v.  Beasley,  143  Ind.  306. 

affidavit  of  the  contestant  must  show  SST  Herrick  v.  Carpenter,  54  Iowa, 

that  the  list  of  names  that  he  de-  349;  'Luce  v.  Fensler,  85  Iowa,  596,  52 

sires  to  contest,  if  stricken  from  the  N.  W.  517;  Walton  v.  Greenwood,  60 

petition,   would   reduce  the  number  Me.   356;    People   v.   Benzie   County 

of  names  on  the  petition  to  less  than  Com'rs,  34  Mich.  211. 

the  number  required  by  law;  and  if  State   v.   Ravalli   County    Com'rs, 

it  does  not  do  that  the  trial  court  21    Mont.    469,    54    Pac.    939.     The 

ought  to  deny  his  contest."  court  held   here  that   in    so   acting 

384  Peters  v.  Morey,  34  Neb.  82.  they  exercised  judicial  functions  and 

sss  Adams   v.    Smith,    6    Dak.    94;  a  writ  of  review  could  be  granted. 

Sebering  v.  Bastedo,  48  Neb.  358,  67  Ellis  v.  Karl,  7  Neb.  381;  Williams 

N.  W.  148.     One  elector  in  his  own  v.  Boynton,  71  Hun,  309.     See  this 

name  not  entitled  to  contest  county  case  for  effect  of  act  ratifying  action 

seat  election.    As  affecting  the  right  of  board  of  supervisors. 


§  81  NAME  AND  BOUNDARIES.  125 

tory  in  their  nature.  As  to  those,  a  strict  performance  is  re- 
quired. Where  subordinate  courts  are  given  the  power  to  con- 
sider and  determine  the  result  of  any  one  step  in  the  removal  of 
a  county  seat,  the  rules  of  law  controlling  such  judicial  organiza- 
tion will  apply.388  The  time  and  place  of  their  meeting,  unless 
designated  by  law,  are  usually  considered  within  their  discre- 
tion,389 and  except  in  the  case  of  a  judicial  body  the  usual  rules 
of  law  as  to  the  introduction  of  evidence  do  not  apply.  It  is 
customary,  and  has  been  held  imperative  in  some  instances,  to 
keep  a  record  of  their  proceedings,  which  should  recite  all  the 
necessary  jurisdictional  facts,  including  the  authority  under  which 
they  proceed.390  The  petition  for  a  submission  of  the  question 
of  removal  to  the  voters  of  a  county,  it  has  been  held  in  Iowa, 
can  only  be  considered  by  the  board  of  supervisors  at  a  regular 
not  an  adjourned  meeting.391 

§  81.    Declaration  of  the  result  and  its  effect. 

When  the  officer  or  body  designated  by  law  as  having  author- 
ity declares,  in  an  order  or  finding,  the  result  of  the  election  held, 
and  names  the  county  seat,  it  becomes  such  by  operation  of  law 
from  the  date  of  this  order;392  and  governmental  duties,  acts 
and  powers,  of  whatever  character,  can  then  only  be  valid  when 
exercised  at  and  promulgated  from  such  county  seat  by  the  pub- 
lic quasi  corporation.393  These  duties  and  powers  should  be 
thus  exercised  even  when  there  are  proceedings  pending  contest- 
ing the  result  of  the  election  changing  a  county  seat.394 

sss  state  v.   Alcorn,  78   Tex.   387;  State  v.   Harwood,   36   Kan.    236; 

Ewing  v.  Duncan,  81  Tex.  230;  Whit-  People  v.  Cook,  14  Barb.  (N.  Y.)  290; 

aker  v.  Dillard,  81  Tex.  359;    Scar-  Clark  v.  Crane,  5  Mich.  154. 

brough  v.  Eubank,  93  Tex.  106.  390  Douglass     v.     Baker     County 

ssg  Edwards   v.    Hall,   30   Ark.    31.  Com'rs,   23  Fla.  419;    Buck  v.  Fitz- 

In  this  case  the  court  also  said:     "It  gerald,   21   Mont.   482,   54  Pac.  942; 

may  be  that  the  location  is  an  inju-  Rousey  v.  Wood,  57  Mo.  App.  650. 

dicious  one,  such  as  a  majority  of  301  Ellis  v.  Harrison  County  Sup'rs, 

the    taxpayers    and    voters    of    the  40  Iowa,  301. 

county  do  not  approve.     If  such  un-  392  Hamilton     v.     Tucker    County 

fortunately     should     be     the     case,  Ct.,  38  W.  Va.  71;  Minear  v.  Tucker 

whilst  it  is  to  be  regretted  that  in-  County  Ct.,  39  W.  Va.  627. 

jury    (if   any)    is  the   result  of  the  293  McNair    v.    Williams,    28    Ark. 

election  of  incompetent  or  dishonest  200;    Williams   v.    Reutzel,    60   Ark. 

commissioners,    their  acts  being  in  155. 

accordance  with  law  and  the  power  394  Maxey  v.  Mack,  30  Ark.  472. 
conferred,  must  be  submitted  to." 


CHAPTER  III. 

LEGISLATIVE     POWER    OVER    PUBLIC    CORPORATIONS    AND    ITS 

LIMITATIONS. 

§  82.  In  general. 

83.  Legislative  control  over  public  funds. 

84.  Power  of  the  legislature  over  public  revenues. 

85.  Legislative  control  over  corporate  boundaries. 

86.  Over  municipal  boundaries. 

87.  Legislative  power  over  public  property. 

88.  Over  corporate  contracts. 

89.  Legislative  control  over  trust  property  held  by  public  corporations. 

90.  The  power  of  the  legislature  to  compel  the  payment  of  debts. 

91.  Retention  of  jurisdiction. 

92.  Constitutional  limitations  on  legislative  power. 

93.  Limitations  on  the  passage  of  what  is  termed  "special  legislation." 

94.  Constitutionality  of  laws  classifying  public  corporations. 

95.  Other  constitutional  objections. 

96.  The  impairment  or  destruction  of  vested  rights  as  a  limitation. 

97.  Control  over  the  corporation  in  its  private  capacity. 

§  82.    In  general. 

A  public  corporation  is  organized  primarily  to  act  as  an  agent 
of  the  sovereign  in  the  performance  of  governmental  duties  and 
the  administration  of  public  affairs.  A  private  corporation  is 
created  under  authority  of  law  by  a  group  or  association  of  in- 
dividuals for  the  purpose,  primarily,  of  advancing  their  personal 
interests.  The  organization  of  all  corporations,  private  as  well 
as  public,  is  an  advantage  to  the  state  and  results,  in  the  case  of 
a  public  corporation,  directly  in  a  benefit ;  in  the  case  of  a  private 
corporation  indirectly.  The  basis  of  the  continued  existence  of  a 
public  corporation  is  the  will  of  the  sovereign ;  of  the  private  cor- 
poration, the  contract  between  itself  and  the  state.  As  between 
the  state  and  the  public  corporation  or  the  members  comprising 
it,  there  exists  no  contract  relation.  This  difference  in  purpose  of 
organization  and  authority  for  corporate  life  leads,  as  can  be  in- 


§   82  LEGISLATIVE   POWER.  127 

ferred,  to  a  fundamental  and  far-reaching  difference  in  the  power 
of  the  sovereign  over  them.1 

In  considering  the  question  there  must  also  be  kept  in  mind  the 
distinctions  already  suggested  between  the  different  grades  of 
public  corporations.  We  have  public  corporations  as  a  generic 
term,  including  municipal  corporations  proper  and  public  quasi 
corporations, — ignoring  the  cases  holding  that  the  state  itself  may 
be  considered  a  corporation.  As  a  fundamental  principle  of  law 
this  is  not  true.  The  sovereign  cannot  be  considered  a  corpora- 
tion except  as  a  matter  of  convenience  for  some  purposes. 

Referring  to  definitions  already  given  of  municipal  corpora- 
tions proper  and  public  quasi  corporations,  it  will  be  remembered 
that  a  public  quasi  corporation  is  that  form  of  organization  used 
for  the  exercising  of  governmental  powers  over  territory  less 
thickly  settled  than  the  territory  usually  included  within  the  lim- 
its of  a  municipal  corporation  proper.  The  municipal  corporation 
proper  includes  cities,  towns  (not  the  township  organization)  and 
villages,  or  congested  centers  of  population.  The  wants  and 
needs  of  the  two  classes  differ  essentially,  and  as  agencies  of  the 
government  they  can  each  best  perform  their  functions  in  a  dif- 
ferent manner.  The  property  of  public  corporations  acquired 
through  the  levy  and  collection  of  taxes  or  by  grant  and  devise 
for  public  purposes  can  only  be  devoted  to  such  uses. 

Public  corporations  of  all  grades  may  assume  the  character  of 
a  private  corporation  and  acquire  property  in  that  character  or 
as  an  individual.  Their  rights  in  the  acquisition,  holding  and  dis- 
posal of  this  property,  acquired  in  their  capacity  of  private  cor- 
porations, are  the  same  as  those  pertaining  to  other  private  per- 
sons. The  legislature  cannot  exercise  over  these  the  same  degree 

iLaramie  County  Com'rs  v.  Al-  Denton  v.  Jackson,  2  Johns.  Ch. 
bany  County  Com'rs,  92  U.  S.  307;  (N.  Y.)  320;  Sill  v.  Village  of  Corn- 
State  v.  City  of  Mobile,  24  Ala.  701;  ing,  15  N.  Y.  297;  People  v.  Draper, 
Willimantic  School  Soc.  v.  First  15  N.  Y.  532;  McKim  v.  Odom,  3 
School  Soc.  in  Windham,  14  Conn.  Bland  (Md.)  407;  Inhabitants  of 
457;  Hartford  Bridge  Co.  v.  Town  Ashby  v.  Wellington,  25  Mass.  (8 
of  East  Hartford,  16  Conn.  172;  Pick.)  524;  City  of  Baltimore  v. 
State  v.  City  of  Savannah,  R.  M.  State,  15  Md.  376;  Inhabitants  of 
Charlt.  (Ga.)  250;  Union  Baptist  Hampshire  v.  Inhabitants  of  Frank- 
Soc.  v.  Town  of  Candia,  2  N.  H.  20;  lin,  16  Mass.  76;  Town  of  Mont- 
Town  of  North  Hempstead  v.  Town  pelier  v.  Town  of  East  Montpelier, 
of  Hempstead,  2  Wend.  (N.  Y.)  109;  29  Vt.  12. 


128  LEGISLATIVE   POWER.  §   82 

of  control  which  it  ordinarily  exercises  over  the  public  corpora- 
tion and  its  public  property.2 

To  state  concisely  the  rule  of  control:  A  public  corporation, 
in  its  capacity  as  a  public  corporation,  is  absolutely  under  the 
control  and  at  the  mercy  of  the  sovereign,  subject  only  to  con- 
stitutional provisions  and  the  fundamental  law  that  property 
contract,  and  vested  rights  of  third  parties  dealing  with  it,  cannot 
be  impaired  or  destroyed.3  Acting  as  a  private  corporation,  ei- 

2  People  v.  Wren,  5  111.  (4  Scam.)  701;  People  v.  Burr,  13  Cal.  343; 
273;  State  v.  County  of  Dorsey,  28  Churchill  v.  Walker,  68  Ga.  681; 
Ark.  378;  County  of  Richland  v.  Crook  v.  People,  106  111.  237;  Town 
County  of  Lawrence,  12  111.  1;  Rob-  of  Cicero  v.  City  of  Chicago,  182  111. 
ertson  v.  City  of  Rockford,  21  111.  301;  Morford  v.  Unger,  8  Iowa,  82; 
451;  Town  of  Freeport  v.  Stephen-  Boyd  v.  Chambers,  78  Ky.  140;  Lay- 
son  County  Sup'rs,  41  111.  495;  Peo-  ton  v.  City  of  New  Orleans,  12  La. 
pie  v.  Cook  County  Com'rs,  176  111.  Ann.  515;  Pumphrey  v.  City  of  Bal- 
576;  Sloan  v.  State,  8  Blackf.  (Ind.)  timore,  47  Md.  145;  Prince  v.  Crock- 
361;  Guilder  v.  Town  of  Dayton,  22  er,  166  Mass.  347;  Weymouth  &  B. 
Minn.  366;  State  v.  McFadden,  23  Fire  Dist.  v.  Norfolk  County 
Minn.  40;  City  of  St.  Louis  v.  Rus-  Com'rs,  108  Mass.  142;  People  v. 
sell,  9  Mo.  507;  State  v.  Swift,  11  Common  Council  of  Detroit,  28 
Nev.  128;  In  re  Farnum's  Petition,  Mich.  228;  City  of  St.  Louis  v. 
51  N.  H.  376;  City  of  Paterson  v.  Sheilds,  52  Mo.  351;  Opinion  on  Tp. 
Society  for  Establishing  Useful  Organization  Law,  55  Mo.  295;  State 
Manufactures,  24  N.  J.  Law  (4  v.  Holden,  19  Neb.  249;  Berlin  v. 
Zab.)  385;  Corning  v.  Greene,  23  Gortiam,  34  N.  H.  266;  Fish  v. 
Barb.  (N.  Y.)  33;  Town  of  Marietta  Branin,  23  N.  J.  Law  (3  Zab.)  484; 
v.  Fearing,  4  Ohio,  427;  Lusher  v.  Morris  v.  People,  3  Denio  (N.  Y.) 
Scites,  4  W.  Va.  11.  381;  People  v.  Morris,  13  Wend.  (N. 

s  See  elaborate  notes  in  1  L.  R.  A.  Y.)   325;   People  v.  Pinckney,  32  N. 

757,  48  L.  R.  A.  465,  and  also  cases  Y.  377. 

cited  generally  in   this  section.  City   of   Philadelphia   v.   Fox,    64 

Terrett  v.  Taylor,  9  Cranch  (U.  Pa.  169.  "It  is  merely  an  agency, 
S.)  43.  "In  respect  also,  to  public  instituted  by  the  sovereign  for  the 
corporations  which  exist  only  for  purpose  of  carrying  out  in  detail 
public  purposes,  such  as  counties,  the  objects  of  government,  essen- 
towns,  cities,  etc.,  the  legislature  tially  a  revocable  agency,  having  no 
may,  under  proper  limitations,  have  vested  right  to  any  of  its  powers 
a  right  to  change,  modify,  enlarge  or  franchises,  the  charter  or  act  of 
or  restrain  them,  securing,  how-  erection  being  in  no  sense  a  con- 
ever,  the  property  for  tha  uses  of  tract  with  the  state,  and  therefore 
those  for  whom  and  at  whose  ex-  fully  subject  to  the  control  of  the 
pense  it  was  originally  purchased."  legislature,  who  may  enlarge  or 

Sinton  v.  Carter  County.  23  Fed.  diminish    its    territorial    extent    or 

535;  State  v.  City  of  Mobile,  24  Ala.  its  functions,  may  change  or  modify 


§  82 


LEGISLATIVE   POWER. 


129 


ther  in  the  acquirement  of  property  or  the  exercise  of  certain 
powers,  the  public  corporation,  so  far  as  legislative  control  is  con- 
cerned, stands  on  an  equal  basis  with  a  private  corporation  or  an 
individual.4  A  municipal  corporation  proper  more  frequently 
acts  as  and  assumes  this  character  of  a  private  corporation. 


its  internal  arrangement,  or  destroy 
its  very  existence  with  the  mere 
breath  of  arbitrary  discretion.  Sic 
volo,  sic  jubeo,  that  is  all  the  sov- 
ereign authority  need  say." 

State  v.  Frost,  103  Tenn.  685; 
Graham  v.  City  of  Greenville,  67 
Tex.  62;  Atkins  v.  Town  of  Ran- 
dolph, 31  Vt.  226.  The  author  of 
Andrews'  American  Law  attacks 
with  much  vigor  and  feeling  the 
principle  stated  in  the  text  and 
especially  as  applied  to  municipal 
corporations  proper.  These,  he 
claims  (pp.  538,  539),  "do  not  de- 
rive their  existence  from  the  leg- 
islature and  are  above  and  beyond 
the  power  of  the  legislature  to  de- 
stroy. *  *  *  It  may  readily  be 
admitted  that  the  administration  of 
governmental  powers  which  the 
legislature  have  a  right  to  impose 
upon  its  citizens  may  be  imposed 
upon  the  inhabitants  of  any  local- 
ity without  their  consent  and  that 
such  a  power  may  be  withdrawn  at 
will;  but  the  proposition  that  our 
local  municipal  organizations — 
townships,  counties  and  cities, — ex- 
ist at  the  behest  of  the  legislature 
only,  and  only  for  so  long  as  the 
legislature  sees  fit  is  a  proposition 
finding  no  support  in  any  decision 
where  the  point  has  been  involved." 
See,  also,  People  v.  Hurlbut,  24 
Mich.  44;  People  v.  Draper,  15  N. 
Y.  532,  dissenting  opinion;  People 
v.  Albertson,  55  N.  Y.  50. 

Rathbone  v.  Wirth,  150  N.  Y.  459. 
"If  not  expressly  recognized,  it  is 
still  to  be  understood  that  all  these 


instruments  are  framed  with  its 
present  existence  and  anticipated 
continuance  in  view.  *  *  *  The 
principle  is  one  which  it  takes  but 
little  reflection  to  convince  the 
mind  of  being  fundamental  in  our 
governmental  system,  and  as  con- 
tributing strength  to  the  national 
life,  in  its  educational  and  forma- 
tive effect  upon  the  citizen.  It 
means  that  in  the  local  or  political 
subdivisions  of  the  state  the  people 
of  the  locality  shall  administer 
their  own  local  affairs  to  the  ex- 
tent that  that  right  is  not  restricted 
by  some  constitutional  provision. 
*  *  *  The  theory  of  the  consti- 
tution is  that  the  several  counties, 
cities,  towns  and  villages  are,  of 
right,  entitled  to  choose  whom  they 
will  have  to  rule  over  them;  and 
that  this  right  cannot  be  taken 
from  them,  and  the  electors  and 
inhabitants  disfranchised,  by  an  act 
of  the  legislature,  or  of  any  or  all 
the  departments  of  the  state  gov- 
ernment combined." 

*  City  of  Louisville  v.  University 
of  Louisville,  54  Ky.  (15  B.  Mon.) 
642.  See,  also,  New  Orleans,  M.  & 
C.  R.  Co.  T.  City  of  New  Orleans, 
26  La.  Ann.  478,  where  it  is  said 
that  a  municipal  corporation  "is  an 
agency  to  regulate  and  administer 
the  internal  concerns  of  a  locality 
in  matters  peculiar  to  the  place  in- 
corporated and  not  common  to  the 
state  or  people  at  large;  but  duties 
and  functions  may  be  and  are  con- 
ferred and  imposed,  not  local  in 
their  nature.  It  possesses  two  class- 


Abb.  Corp.— 9. 


130 


LEGISLATIVE   POWER. 


§  82 


Without  discussing  at  present  the  rights  of  the  public  as  a  pri- 
vate corporation,  it  can  be  said  that  public  corporations,  as  gov- 
ernmental agents,  so  far  as  the  exercise  of  their  governmental  pow- 
ers are  concerned,  their  corporate  existence,  boundaries,  funds, 
revenues,  property  and  contract  rights,  are  subject  to  the  will  of 
the  state,  which  may  modify  their  franchises,  increase  or  diminish 
their  corporate  powers,  amend  their  charters,  enlarge  or  reduce 
their  privileges  or  annul  their  corporate  existence,  as,  in  its  judg- 
ment, the  general  good  requires,  and  irrespective  of  consent  or 
objection  on  the  part  of  the  inhabitants  of  the  territory  affected, 
except  so  far  as  it  is  restrained  by  provisions  in  the  constitution 
or  fundamental  law.5  The  limitations  usually  found  in  state  con- 
stitutions are  those  which  prohibit  special  legislation;  laws  not 
having  "a  uniform  operation  throughout  the  state,'.'  or  relating 
to  the  "business,"  the  "affairs"  or  "internal  affairs"  of  the  cor- 
poration. It  follows  as  a  corollary  that  whatever  the  state  di- 
rectly or  indirectly  can  originally  do,  it  may,  if  there  is  no  con- 
stitutional obstacle,  subsequently  ratify,  except  in  criminal  mat- 
ters, and  if  action  is  taken  ratifying  a  past  act  of  a  public  cor- 
poration such  action  will  be  deemed  the  equivalent  of  an  original 
grant  of  power,  operating  back  to  the  date  of  the  act  by  the  doc- 
trine of  relation  and  making  legal  such  action.6 


es  of  powers  and  two  classes  of 
rights — public  and  private.  In  all 
that  relates  to  one  class,  it  is  merely 
the  agent  of  the  state  and  subject 
to  its  control;  in  the  other  it  is  the 
agent  of  the  inhabitants  of  the  place 
~-the  corporators — maintains  the 
character  and  relations  of  individ- 
uals and  is  not  subject  to  the  abso- 
lute control  of  the  legislature,  its 
creator.  Among  this  latter  class  is 
the  right  to  acquire,  hold  and  dis- 
pose of  property;  to  sue  and  be 
sued." 

s  Girard  v.  City  of  Philadelphia,  74 
U.  S.  (7  Wall.)  1;  Barnes  v.  District 
of  Columbia,  91  U.  S.  540;  Town  of 
Mt.  Pleasant  v.  Beckwith,  100  U.  S. 
514;  State  v.  Jennings,  27  Ark.  419; 
Eagle  v.  Beard,  33  Ark.  497;  Under- 


bill v.  Trustees  of  City  of  Sonora,  17 
Cal.  172;  City  of  San  Francisco  v. 
Canavan,  42  Cal.  541;  Fragley  v. 
Phelan,  126  Cal.  383;  Town  of  Val- 
verde  v.  ShattUck,  19  Colo.  104,  34 
Pac.  947;  People  v.  City  of  Chicago, 

51  111.  17;   City  of  Clinton  v.  Cedar 
Rapids  &  M.  R.  R.  Co.,  24  Iowa,  455; 
Hooper  v.  Emery,  14  Me.  375;  Town 
of    Hagerstown   v.    Sehner,   37    Md. 
180;    State  v.   Linn   County  Ct,   44 
Mo.  504;  City  of  St.  Louis  v.  Sheilds, 

52  Mo.  351;    Van  Horn  v.  State,  46 
Neb.     62;     Rader    v.     Southeasterly 
Road  Dist.  of  Union,  36  N.  J.  Law, 
273;    Jersey  City  v.   Jersey   City  & 
B.    R.    Co.,    20    N.    J.    Eq.    (5    C.    E. 
Green)    360;    In   re   Clinton   St.    in 
Doylestown,    2    Brewst.    (Pa.)    599; 
Harriss  v.  Wright,  121  N.  C.  172;  Al- 


§  83 


LEGISLATIVE   POWER. 


131 


§  83.     Legislative  control  over  public  funds. 

The  funds  of  a  public  corporation,  acquired  in  its  capacity  as 
such,  are  raised  by  the  imposition  of  taxes  on  taxable  interests 
within  its  jurisdiction.  In  this  country  the  basis  of  the  legal  im- 
position of  taxes  is  the  use  of  the  proceeds  for  public  purposes. 
The  legislature  therefore  has  the  right  to  regulate  and  control 
either  the  original  levy  and  collection  of  taxes,  in  whatever  form, 
by  a  public  corporation,  or  to  dispose  of  funds  thus  acquired7 


len  v.  Reed,  10  Okl.  105,  60  Pac.  782, 
63  Pac.  867. 

e  Los  Angeles  City  Water  Co.  v. 
City  of  Los  Angeles,  88  Fed.  720; 
City  of  Oakland  v.  Oakland  Water- 
Front  Co.,  118  Cal.  160;  Kohler  v. 
Town  of  Guttenberg,  38  N.  J.  Law, 
419. 

~  Home  Ins.  Co.  v.  City  Council  of 
Augusta,  93  U.  S.  116;  City  of  New 
Orleans  v.  Clark,  95  U.  S.  644. 

Pennie  v.  Reis,  132  U.  S.  464.  "The 
direction  of  the  state  that  the  fund 
should  be  one  for  the  benefit  of  the 
police  officer  or  his  representative 
under  certain  conditions  was  subject 
to  change  or  revocation  at  any  time 
at  the  will  of  the  legislature;  there 
was  no  contract  on  the  part  of  the 
state  that  its  disposition  should  al- 
ways continue  as  originally  pro- 
vided." 

People  v.  Williams,  8  Cal.  97;  Peo- 
ple v.  San  Luis  Obispo  County 
Sup'rs,  50  Cal.  561;  People  v.  'Lynch, 
51  Cal.  15;  Pike  County  Com'rs  v. 
State,  11  111.  202. 

Gutzweller  v.  People,  14  111.  142. 
The  court  here  say:  "So,  too,  it 
was  for  the  legislature  to  determine 
who  should  issue  licenses  to  sell 
strong  liquors,  and  to  specify  wheth- 
er the  money  thus  raised  should  be 
devoted  to  the  support  of  paupers, 
or  the  maintenance  of  the  police,  or 
to  any  other  purpose.  It  gave  the 
city  no  more  a  vested  right  to  issue 


licenses,  because  the  legislature  spe- 
cified the  objects  to  which  the  money 
should  be  applied,  than  if  it  had 
been  put  into  the  general  fund  of 
the  city.  If  the  legislature  could  not 
take  from  the  city  authority  the 
power  to  issue  licenses  it  certainly 
had  no  right  to  deprive  the  counties 
of  the  same  authority.  Cities  are 
as  much  the  creatures  of  legislative 
will  as  are  counties,  and  what  may 
be  done  with  the  one  they  have  au- 
thority to  do  with  the  other.  Trus- 
tees of  Schools  v.  Tatman,  13  111.  27, 
and  notes.  *  *  *  From  this  it  is 
too  plain  to  be  argued,  that  it  was 
the  intention  of  the  legislature  to 
withdraw  all  authority  which  had 
ever  been  conferred  upon  any  sub- 
ordinate governmental  agencies  to 
grant  licenses  for  the  sale  of  liquor; 
and  that  thenceforth  the  sale  of  ar- 
dent spirits  in  less  quantities  than 
one  quart  should  be  absolutely  pro- 
hibited. By  this  law  the  power  is 
as  much  taken  from  the  city  of  Al- 
ton, as  if  she  had  been  expressly 
named  in  the  act.  It  was  pro  tanto 
a  repeal  of  the  city  charter  and  was 
for  that  purpose  as  effectual  as  if 
the  entire  charter  had  been  taken 
away;  and  if  the  legislature  had  the 
right  to  do  the  latter,  they  certainly 
had  authority  to  do  the  former." 
People  v.  Power,  25  111.  187.  The 
court  say  upon  this  point,  "The 
whole  state  has  an  interest  in  the 


132 


LEGISLATIVE   POWER. 


§83 


without  the  consent  of  the  people  within  its  limits,  so  long  as  they 
are  applied  to  public  uses  and  purposes.8  The  public  funds  of  a 
public  corporation  are  not  private  property.  Another  limitation 
upon  the  legislative  right  to  dispose  of  funds  other  than  the  one 
suggested  is  that  those  raised  through  taxation  of  taxable  inter- 
ests within  a  certain  district  cannot  be  used  for  the  benefit  and 
advantage  of  others.9  In  other  words,  the  use  to  which  public 
funds  can  be  applied  by  the  legislature  is  local  as  well  as  public, 
and  a  fund  raised  by  special  taxation  upon  certain  interests  for  a 
special  public  purpose,  it  has  been  held,  cannot  be  applied  to  an- 
other.10 


revenue  of  a  county,  and  for  the 
public  good,  the  legislature  must 
have  the  power  to  direct  its  appli- 
cation. The  power  conferred  upon 
a  county  to  raise  a  revenue  by  tax- 
ation is  a  political  power  and  its 
application,  when  collected,  must 
necessarily  be  within  the  control  of 
the  legislature  for  political  pur- 
poses." 

Florer  v.  State,  133  Ind.  453,  32 
N.  E.  829;  City  of  Indianapolis  v. 
Indianapolis  Home  for  Friendless 
Women,  50  Ind.  215;  State  v.  Mor- 
row, 26  Mo.  131;  Spaulding  v.  An- 
dover,  54  N.  H.  38;  Bank  of  Rome  v. 
Village  of  Rome,  18  N.  Y.  38;  People 
v.  Devlin,  33  N.  Y.  269;  People  v. 
Ingersoll,  58  N.  Y.  1;  People  v. 
Fields,  58  N.  Y.  491;  Love  v. 
Schenck,  34  N.  C.  (12  Ired.)  304; 
Governor  v.  McEwen,  24  Tenn.  (5 
Humph.)  241. 

The  state  may  exempt  property 
from  municipal  taxation.  See,  also, 
City  of  Richmond  v.  Richmond  &  D. 
R.  Co.,  21  Grat.  (Va.)  604. 

s  Sinton  v.  Ashbury,  41  Cal.  525; 
Weismer  v.  Village  of  Douglas,  64 
N.  Y.  91;  Allen  v.  Inhabitants  of 
Jay,  60  Me.  124;  Feldman  &  Co.  v. 
Charleston  City  Council,  23  S.  C.  57. 

» Sibley  v.  Mobile,  3  Woods,  535, 
Fed.  Cas.  No.  12,829. 


State  v.  St.  Louis  County  Ct.,  34 
Mo.  546.  This  case  also  holds  that 
an  act  directing  the  application  of 
the  funds  of  a  county  to  a  particular 
purpose  is  not  unconstitutional  as 
impairing  the  obligation  of  a  con- 
tract or  involving  the  destruction  of 
a  vested  right.  The  legislature,  so 
it  is  said,  cannot  deprive  a  public 
corporation  of  its  property,  but  it 
has  the  full  power  to  direct  the  mode 
in  which  this  property  shall  be  used 
for  the  benefit  of  the  community. 

Greene  v.  Niagara  County,  55  App. 
Div.  475,  67  N.  Y.  Supp.  291;  Cage 
v.  Hogg,  20  Tenn.  (1  Humph.)  48. 

!o  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  (U.  S.)  518.  "It  may 
also  be  admitted,"  says  Justice 
Story,  "that  corporations  for  mere 
public  government,  such  as  towns, 
cities  and  counties,  may,  in  many 
respects,  be  subject  to  legislative 
control  but  it  will  hardly  be  con- 
tended that  even  in  respect  to  such 
corporations  the  legislative  power 
is  so  transcendent  that  it  may  at  its 
will  take  away  the  private  property 
of  the  corporation  or  change  the 
uses  of  its  private  funds  acquired 
under  the  public  faith.  Can  the  leg- 
islature confiscate  to  its  own  use  the 
private  funds  which  a  municipal 
corporation  holds  under  its  charter 


84 


LEGISLATIVE   POWER. 


133 


§  84.     Power  of  the  legislature  over  public  revenues. 

The  legislature,  as  the  law-making  arm  of  the  sovereign,  in  the 
absence  of  constitutional  restrictions,  has  the  power  to  provide 
and  regulate  the  manner  in  and  the  purpose  for  which  the  rev- 
enues of  a  public  corporation  may  be  raised11  and  employed. 
The  sovereign  has  the  inherent  power  of  levying  taxes  for  the 
purpose  of  raising  revenue  for  its  uses,  which  are  presumably 
public.  As  it  therefore  possesses  in  the  first  instance  the  sole 
power,  it  has  the  right  to  direct  the  manner  in  which  its  mere 
agencies  shall  raise  funds,  either  for  their  special  and  local  public 
wants12  or  for  general  purposes,13  and  this  right  of  the  legislature 


without  any  default  or  consent  of  the 
corporators?" 

Terrett  v.  Taylor,  9  Cranch  (U.  S.) 
43;  Conlin  v.  City  and  County  of 
San  Francisco  Sup'rs,  114  Cal.  404; 
Board  of  Levee  Com'rs  v.  Hemming- 
way,  66  Miss.  289,  6  So.  235. 

State  v.  Haben,  22  Wis.  660. 
"Was  it  competent,"  it  was  inquired 
in  this  case,  "for  the  legislature, 
without  the  assent  of  the  city  or  its 
inhabitants,  thus  to  divert  the  funds 
raised  and  in  the  hands  of  the  treas- 
urer for  the  purpose  of  erecting  a 
suitable  high  school  building,  and  to 
declare  that  they  should  be  appro- 
priated, not  for  that  purpose,  but  for 
the  purpose  of  purchasing  a  site  for 
a  state  normal  school  in  the  city? 
We  are  clearly  of  the  opinion  that 
it  was  not.  It  is  well  settled  as  to 
all  matters  pertaining  to  vested 
rights  of  property,  whether  real  or 
personal,  and  to  the  obligation  of 
contracts,  that  municipal  corpora- 
tions are  as  much  within  the  pro- 
tection of  the  federal  constitution 
as  private  individuals  are.  The  leg- 
islature cannot  divest  a  municipal 
corporation  of  its  property  without 
the  consent  of  its  inhabitants,  nor 
impair  the  obligation  of  a  contract 
entered  into  with  or  in  behalf  of 


such  corporation."     Milwaukee  Coun- 
ty Sup'rs  v.  Pabst,  45  Wis.  311. 

11  Oilman   v.   Sheboygan,   2   Black 
(U.   S.)    510;    Myers   v.   English,   9 
Cal.  341;   Schneck  v.  City  of  Jeffer- 
sonville,    152    Ind.   204.     An   act   to 
legalize  city  bonds  not  held  special 
legislation  within  constitutional  pro- 
vision.    City  of  Baltimore  v.  State, 
15  Md.  376;  Town  of  Hagerstown  v. 
Sehner,  37  Md.  180;  Detroit  Citizens' 
St.  R.  Co.  v.  Common  Council  of  De- 
troit, 125  Mich.  673,  85  N.  W.  96,  86 
N.  W.  809;  People  v.  Commissioners 
of  Taxes  of  N.  Y.  City,  47  N.  Y.  501; 
Brownell  v.  Town  of  Greenwich,  114 
N.  Y.  518;   Duke  v.  County  of  Wil- 
liamsburg,  21  S.  C.  414;  Wingate  v. 
Ketner,  8  Wash.  94;  City  of  Guthrie 
v.  Ter.,  1  Okl.  188. 

12  Willard    v.    Presbury,   81   U.    S. 
(14  Wall.)   676;  Meri wether  v.  Gar- 
rett,  102  U.  S.  472;   Gibbons  v.  Mo- 
bile &  G.  N.  R.  Co.,  36  Ala.  410;  Sin- 
ton  v.  Ashbury,  41  Cal.  525;  Burnes 
v.  City  of  Atchison,  2  Kan.  454;  Al- 
len v.  Inhabitants  of  Jay,  60  Me.  124. 
A  private  enterprise  held  not  public 
purpose.     Smith  v.  Stephan,  66  Md. 
381;    Skinner's   Ex'r   v.    Button,    33 
Mo.  244. 

13  City  of  New  Orleans  v.  Turpin, 
13  La.  Ann.  56;  State  v.  Mason,  153 


134 


LEGISLATIVE   POWER. 


84 


goes  not  only  to  the  original  grant  of  power,  but  also  to  its  modi- 
fication,14 change  or  repeal,15  and  the  mode  of  collection.10  The 
revenues  of  a  public  corporation  are  at  the  control  of  the  legis- 
lature both  in  regard  to  their  levy  and  disposal,17  subject  to  con- 
stitutional restrictions  and  inherent  limitations,18  but  not  to  re- 
vision by  the  courts.19 

Further  considering  this  power  of  the  legislature  there  are  cases 
holding,  based  upon  sound  reasons,  that  a  public  corporation  can- 
not be  compelled  to  undertake  a  public  improvement  purely  local, 
not  public  or  governmental  in  its  character,  to  be  paid  for  ulti- 
mately by  compulsory  taxation,20  without  the  consent  of  the  peo- 


Mo.  23,  citing  Ray  County  v.  Bent- 
ley,  49  Mo.  236;  State  v.  Field,  119 
Mo.  593;  State  v.  Owsley,  122  Mo. 
68;  State  v.  Board  of  Education  of 
St.  Louis,  141  Mo.  45. 

i*  Oilman  v.  City  of  Sheboygan,  2 
Black  (U.  S.)  510. 

is  County  of  Galloway  v.  Foster, 
93  U.  S.  567. 

County  of  Scotland  v.  Thomas,  94 
U.  S.  682.  Authority  already  grant- 
ed, it  is  here  held,  cannot  be  taken 
away. 

State  v.  Sullivan  County,  51  Mo. 
522.  See,  also,  State  v.  Greene  Coun- 
ty, 54  Mo.  540;  Slack  v.  Maysville  & 
L.  R.  Co.,  52  Ky.  (13  B.  Mon.)  1. 

i«  State  v.  Carson,  6  Wash.  250,  33 
Pac.  428. 

State  v.  Hundhausen,  26  Wis.  432. 
"It  being  a  matter  of  legislative  dis- 
cretion, how  far,  in  chartering  a 
city,  it  will  make  use  of  the  city 
officers  for  the  collection  of  the  reve- 
nues within  the  municipality,  it  is 
of  course  within  its  discretion  to 
withdraw  such  powers  once  confer- 
red, and  restore  them  to  the  county 
officers,  within  whose  jurisdiction, 
the  city  as  well  as  all  the  towns  in 
the  county  is  located." 

IT  Conlin  v.  City  &  County  of  San 
Francisco  Sup're,  114  Cal.  404.  "As- 
suming that  the  legislature  may  ap- 


propriate the  funds  in  the  state 
treasury  for  any  public  purpose,  it 
does  not  follow  that  it  has  the  same 
power  over  municipal  funds.  While 
the  funds  in  a  municipal  treasury 
are  in  a  certain  sense  public,  they 
are  so  only  for  the  limited  public 
which  has  contributed  them,  but  not 
for  the  entire  state,  and  the  power 
of  the  legislature  over  these  funds 
is  not  co-extensive  with  its  power  of 
the  state  funds,  but  is  limited  by 
certain  provisions  of  the  constitu- 
tion." See,  also,  Cooley,  Taxation, 
p.  700;  Cooley,  Const.  Lim.  (6th 
Ed.)  283  et  seq. 

is  People  v.  Ingersoll,  58  N.  Y.  1. 

is  Parks  v.  Soldiers'  &  Sailors' 
Home  Com'rs,  22  Colo.  86,  43  Pac. 
542. 

20  In  Cooley,  Taxation  (2d  Ed.) 
p.  688  et  seq.,  the  author  states  in 
discussing  the  nature  of  municipal 
corporations,  "They  may  be  en- 
dowed with  peculiar  powers  and  ca- 
pacities for  the  benefit  and  conven- 
ience of  their  own  citizens,  and  in 
the  exercise  of  which  they  seem  not 
to  differ  in  any  substantial  degree 
from  the  private  corporations  which 
the  state  charters.  They  have  thus 
their  public  or  political  character,  in 
which  they  exercise  a  part  of  the 
sovereign  power  of  the  state  for  gov- 


§  84 


LEGISLATIVE   POWER. 


135 


pie  paying  snch  taxes.21  The  same  principle  has  also  been  applied 
in  the  granting  of  aid  to  railroad  or  other  quasi  public  corpora- 
tions, and  it  has  been  held  in  several  cases  that  municipal  corpo- 


ernmental  purposes,  and  they  have 
their  private  character  in  which, 
for  the  benefit  or  convenience  of 
their  own  citizens,  they  exercise  pow- 
ers not  of  a  governmental  nature, 
and  in  which  the  state  at  large  has 
only  an  incidental  concern,  as  it  may 
have  with  the  action  of  private  cor- 
porations. It  may  not  be  possible 
to  draw  the  exact  line  between  the 
two,  but  provisions  for  local  conven- 
iences for  the  citizens,  like  water, 
light,  public  grounds  for  recreation, 
and  the  like,  are  manifestly  matters 
which  are  not  provided  for  by  mu- 
nicipal corporations  in  their  politi- 
cal or  governmental  capacity,  but 
in  that  quasi  private  capacity  in 
which  they  act  for  the  benefit  of 
their  corporators  exclusively.  In 
their  public,  political  capacity,  they 
have  no  discretion  but  to  act  as  the 
state  which  has  created  them  shall, 
within  constitutional  limits,  com- 
mand, and  the  good  government  of 
the  state  requires  that  the  power 
should  at  all  times  be  ample  to  com- 
pel obedience,  and  that  it  should  be 
capable  of  being  promptly  and  effi- 
ciently exercised.  In  the  capacity 
in  which  they  act  for  the  benefit  of 
their  corporators  merely,  there  would 
seem  to  be  no  sufficient  reason  for  a 
power  in  the  state  to  make  them 
move  and  act  at  its  will,  any  more 
than  in  the  case  of  any  private  cor- 
poration." This  statement  Judge 
Cooley  makes  the  basis  of  the  prin- 
ciple stated  in  the  text  applying  it 
to  the  exercise  of  the  power  of  tax- 
ation by  the  state,  citing  many  cases. 
People  v.  City  of  Chicago,  51  111.  17; 
Wider  v.  City  of  East  St.  Louis,  55 


111.  133;  Williams  v.  Town  of  Rob- 
erts, 88  111.  11;  Hanson  v.  Vernon,  27 
Iowa,  28;  inhabitants  of  Hampshire 
County  v.  Franklin  County,  16  Mass. 
76. 

Park  Com'rs  v.  Detroit  Common 
Council,  28  Mich.  229.  In  the  able 
opinion  by  Justice  Cooley  it  was 
said:  "The  proposition  which  as- 
serts the  amplitude  of  legislative 
control  over  municipal  corporations, 
when  confined,  as  it  should  be,  to 
such  corporations  as  agencies  of  the 
state  in  its  government,  is  entirely 
sound.  They  are  not  created  exclu- 
sively for  that  purpose,  but  have 
other  objects  and  purposes  peculiar- 
ly local,  and  in  which  the  state  at 
large,  except  in  conferring  the  power 
and  regulating  its  exercise,  is  legal- 
ly no  more  concerned  than  it  is  in 
the  individual  and  private  concerns 
of  its  several  citizens.  Indeed  it 
would  be  easy  to  show  that  it  is 
not  from  the  standpoint  of  state  in- 
terest, but  from  that  of  local  inter- 
est, that  the  necessity  of  incorporat- 
ing cities  and  villages  most  dis- 
tinctly appears.  State  duties  of  a 
local  nature  can  for  the  most  part 
be  very  well  performed  through  the 
usual  township  and  county  organ- 
izations. It  is  because,  where  an 
urban  population  is  collected,  many 
things  are  necessary  for  their  com- 
fort and  protection  which  are  not 
needed  in  the  country,  that  the 
state  is  then  called  upon  to  confer 
larger  powers  and  to  make  the  lo- 
cality a  subordinate  commonwealth. 
It  is  a  fundamental  principle  in 
this  state,  recognized  and  perpetu- 
ated by  express  provision  of  the 


136 


LEGISLATIVE   POWER. 


84 


rations  cannot  be  compelled  against  their  consent,  even  by  act  of 
the  legislature,  to  give  such  aid  where  the  only  means  of  meeting 
the  obligation  is  by  levying  local  taxes.22  Public  revenues  may 
be  raised  through  the  imposition  of  general  or  special  taxes, 
license  fees23  or  charges  for  the  use  of  water  and  light,24  and 
these  subjects  will  be  considered  in  detail  later. 


Constitution,  that  the  people  of  ev- 
ery hamlet,  town  and  city  of  the 
State  are  entitled  to  the  benefits  of 
local  self-government.  But  author- 
ity in  the  legislature  to  determine 
what  shall  be  the  extent  of  the 
capacity  in  a  city  to  acquire  and 
hold  property  is  not  equivalent  to, 
and  does  not  contain  within  itself 
authority  to  deprive  the  city  of 
property  actually  acquired  by  legis- 
lative permission.  As  to  property 
it  thus  holds  for  its  own  private 
purposes,  a  city  is  to  be  regarded 
as  a  constituent  in  State  govern- 
ment, and  is  entitled  to  the  like  pro- 
tection in  its  property  rights  as  any 
natural  person  who  is  also  a  con- 
stituent. The  right  of  the  state  is 
a  right  of  regulation,  not  of  appro- 
priation. It  cannot  be  deprived  of 
such  property  without  due  process 
of  law.  And  when  a  local  conven- 
ience or  need  is  to  be  supplied  in 
which  the  people  of  the  State  at 
large,  or  in  any  portion  thereof 
outside  the  city  limits,  are  not  con- 
cerned, the  State  can  no  more  by 
process  of  taxation  take  from  tho 
individual  citizens  the  money  to 
purchase  it,  than  they  could,  if,  it 
had  been  procured,  appropriate  it 
to  the  state  use." 

State  v.  Tappan,  29  Wis.  664.  But 
see  Kimball  v.  Mobile  County,  3 
Woods,  555,  Fed.  Cas.  No.  7,774; 
Hagar  v.  Reclamation  Dist,  111  U. 
S.  701;  Mobile  County  Com'rs  v. 
State,  45  Ala.  399;  Hagar  v.  Yolo 
County  Sup'rs,  47  Cal.  222;  Talbot 


County  Com'rs  v.  Queen  Anne's  Coun- 
ty Com'rs,  50  Md.  245,  and  State  v. 
St.  Louis  County,  34  Mo.  546;  Peo- 
ple v.  Flagg,  46  N.  Y.  401;  Williams 
v.  Town  of  Duanesburgh,  66  N.  Y. 
129. 

21  People   v.   Salomon,   51   111.   37; 
Slack  v.   Maysville  &  L.  R.  Co.,   52 
Ky.  (13  B.  Mon.)  1;  Allison  v.  Cork- 
er,  67  N.  J.  Law,  596,  52  Atl.  362; 
People  v.  Batchellor,  53  N.  Y.  128; 
Weismer  v.   Village  of  Douglas,   64 
N.  Y.  91. 

22  Township  of  Elmwood  v.  Marcy, 
92  U.    S.   289;    Hessler  v.    Drainage 
Com'rs,  53  111.  105;  Madison  County 
v.  People,  58  111.  456;  Sleight  v.  Peo- 
ple, 74  111.  47;  People  v.  State  Treas- 
urer, 23  Mich.  499;  People  v.  Batch- 
ellor,  53  N.  Y.  128,  a  leading  case 
citing  and  reviewing  many  authori- 
ties.    But  see  Slack  v.  Maysville  & 
L.  R.   Co.,   52   Ky.    (13   B.  Mon.)    1, 
where  the  court  held  that  the  Legis- 
lature   had    power    to   impose   local 
taxation  to  carry  out  the  construc- 
tion of  a  purely  local  enterprise. 

23  State  v.  Union  Cent.  L.  Ins.  Co. 
(Idaho)   67  Pac.  647;   In  re  Martin, 
62    Kan.   638,    64   Pac.    43;    State    v. 
Dwyer,  21  Minn.   512;    State  v.  Ma- 
son, 153  Mo.  23;   Trustees  of  Aber- 
deen   Academy    v.    Town    of    Aber- 
deen   21    Miss.    (13    Smedes    &    M.) 
645. 

2*Agua  Pura  Co.  of  Las  Vegas  v. 
City  of  Las  Vegas,  10  N.  M.  6,  60 
Pac.  208;  Bellingham  Bay  Imp.  Co. 
v.  City  of  New  Whatcom,  20  Wash. 
53. 


§  85 


LEGISLATIVE   POWER. 


137 


§  85.    Legislative  control  over  corporate  boundaries. 

The  boundaries  of  public  corporations  as  agents  of  the  sover- 
eign come  within  the  doctrine  of  absolute  control  by  the  legisla- 
ture. Originally  possessing  the  right  to  create  these  agencies  or 
subagencies,  it  can  exercise  the  lesser  power  of  changing  or  alter- 
ing their  boundaries.25  The  right  of  the  people  within  the  districts 
affected  to  consent  to  such  change  or  alteration  may  be  given  as 
a  matter  of  favor.26  The  sovereign  may  cede  a  portion  of  terri- 
tory without  the  consent  of  the  people  affected,  and  upon  such 
cession  it  will  pass  from  its  jurisdiction.27  Ministerial  acts  in  con- 


25  Girard  v.  City  of  Philadelphia, 
74  U.  S.  (7  Wall.)  1;  Laramie  Coun- 
ty Com'rs  v.  Albany  County  Com'rs, 
92  U.  S.  307;  Manchester  v.  Com., 
139  U.  S.  240;  Kelly  v.  Tate,  43  Ga. 
535;  Sabin  v.  Curtis,  3  Idaho,  662, 
32  Pac.  1130;  Monford  v.  linger,  8 
Iowa,  82;  In  re  Division  of  Howard 
County,  15  Kan.  194;  Chandler  v. 
City  of  Boston,  112  Mass.  200;  Opin- 
ion of  the  Supreme  Court,  60  Mass. 
(6  Cush.)  578;  Roos  v.  State,  6 
Minn.  428  (Gil.  291) ;  Woods  v.  Hen- 
ry, 55  Mo.  566;  Eskridge  v.  Mc- 
Gruder,  45  Miss.  294;  Portwood  v. 
Montgomery  County  Sup'rs,  52 
Miss.  523;  Inhabitants  of  Gorham  v. 
Inhabitants  of  Springfield,  21  Me. 
59;  Rumsey  v.  People,  19  N.  Y.  41; 
Columbus  Mills  v.  Williams,  33  N. 
C.  (11  Ired.)  558;  Dare  County 
Com'rs  v.  Currituck  County  Com'rs, 
95  N.  C.  189. 

Schaffner  v.  Young,  10  N.  D.  245. 
Change  of  boundaries  in  North  Da- 
kota controlled  by  constitutional 
provision.  Johns  v.  Davidson,  16 
Pa.  512;  Stuart  v.  Kirley,  12  S.  D. 
245. 

In  Tennessee  legislative  action 
controlled  by  constitutional  provi- 
sions. Gotcher  v.  Burrows,  28  Tenn. 
(9  Humph.)  585;  Macon  &  Smith 
Counties  v.  Trousdale  County,  61 
Tenn.  (2  Baxt.)  1;  McMillan  v.  Han- 


nah, 106  Tenn.  689,  61  S.  W.  1020; 
Washburn  v.  City  of  Oshkosh,  60 
Wis.  453.  See,  also,  sections  on  cor- 
porate boundaries  and  annexation  or 
division  of  territory:  Dillon,  Mun. 
Corp.  (4th  Ed.)  §  183,  "The  funda- 
mental idea  of  a  municipal  corpora- 
tion proper,  both  in  England  and 
in  this  country,  is  to  invest  com- 
pact or  dense  populations  with  the 
power  of  local  self-government.  In- 
deed the  necessity  for  such  corpora- 
tions springs  from  the  existence  of 
centers  or  agglomerations  of  popu- 
lation having  by  reason  of  density 
and  numbers,  local  or  peculiar  in- 
terests and  wants  not  common  to 
adjoining  sparsely  settled  or  agri- 
cultural regions.  It  is  necessary  to 
draw  the  line  which  defines  the 
limits  of  the  place  and  people  to  be 
incorporated;  this  is,  with  us,  a  leg- 
islative function." 

26  Reynolds   v.    Holland,    35    Ark. 
56;   Taylor  v.  Taylor,  10  Minn.  107 
(Gil.  81).    Consent  necessary  under 
constitutional     provision.      Mills     v. 
Williams,  33  N.  C.  (11  Ired.)  558. 

27  Benson  v.  U.  S.,  146  U.  S.  325. 
"It  is  contended  by  appellant's  coun- 
sel that    *     *     *    jurisdiction  passed 
to  the  general  government  only  over 
such  portions  of  the  reserve  as  are 
actually  used  for  military  purposes 
and  that  the  particular  part  of  the 


138 


LEGISLATIVE   POWER. 


§  86 


neetion  with  the  change  of  boundaries  in  some  states  can  be  as- 
signed by  the  legislature  to  subordinate  bodies  or  officials,  and  in 
such  cases,  the  courts  have  held,  there  is  no  delegation  of  legisla- 
tive powers.28  Where  constitutional  limitations  exist,  either  as 
to  population  or  the  territorial  extent  of  subordinate  agencies  of 
the  state,  it  has  been  held  that  courts  may  take  judicial  notice  of 
the  fact  that  an  act  of  the  legislature  will  reduce  certain  territory 
below  the  constitutional  limit.28 

§  86.    Over  municipal  boundaries. 

The  preceding  section  treated  in  a  general  way  of  legislative 
control  over  boundaries.     In  this  section  a  few  of  the  cases  re- 


reserve  on  which  the  crime  charged 
was  committed  was  used  solely  for 
farming  purposes.  But  in  matters 
of  that  kind  the  courts  follow  the 
action  of  the  political  department 
of  the  government.  *  *  *  The 
character  and  purposes  of  its  occu- 
pation having  been  officially  and 
legally  established  by  that  branch 
of  the  government  which  has  con- 
trol over  such  matters,  it  is  not 
open  to  the  courts  on  a  question  of 
jurisdiction  to  inquire  what  may  be 
the  actual  uses  to  which  any  por- 
tion of  the  reserve  is  temporarily 
put."  Citing  Ft.  Leavenworth  R. 
Co.  v.  Lowe,  114  U.  S.  525,  and  Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  McGlinn, 
114  U.  S.  542;  McCracken  v.  Todd, 
1  Kan.  148. 

28  Kayser  v.  Trustees  of  Bremen, 
16  Mo.  88;  Osgood  v.  Clark,  26  N. 
H.  307;  Allison  v.  Corker,  67  N.  J. 
Law,  596,  52  Atl.  362;  Blanchard 
v.  Bissell,  11  Ohio  St.  96;  Devore's 
Appeal,  56  Pa.  163.  But  see  People 
v.  Town  of  Nevada,  6  Cal.  143;  City 
of  Galesburg  v.  Hawkinson,  75  111. 
152. 

People  v.  Bennett,  29  Mich.  451. 
A  Michigan  statute  passed  in  1873 
providing  for  the  general  incorpora- 
tion of  villages  within  certain  dis- 


tricts was  held  unconstitutional  be- 
cause it  permitted  those  petitioning 
for  incorporation  to  decide  upon  the 
extent  of  territory  to  be  incorporat- 
ed which  was  held  a  delegation  of 
legislative  powers  in  this  respect  to 
private  citizens. 

Willett  v.  Bellville,  79  Tenn.  (11 
Lea)  1. 

Jasper  County  Com'rs  v.  Spitler, 
13  Ind.  235.  In  this  case  under  a 
constitutional  provision  which  con- 
ferred upon  the  general  assembly 
power  to  delegate  to  the  county 
boards  local  administrative  power, 
the  court  said:  "Under  this  provi- 
sion the  legislature  seems  to  be 
plainly  authorized  to  confer  the 
power  embraced  in  the  act  before 
us.  In  cases  like  the  present  the 
taking  effect  of  the  law  is  not  the 
result  of  any  action  on  the  part  of 
the  commissioners;  nor  do  they  de- 
cide whether  the  act  is  or  is  not 
in  force  but  simply  whether  it  ap- 
plies to  the  case  made  by  the  peti- 
tion which  the  act  prescribes.  This 
is  evidently  not  the  exercise  of  dele- 
gated legislative  power;  but  merely 
the  application  of  the  provisions  of 
a  general  law  to  a  given  case  local 
in  its  character." 

29  Woods  v.  Henry,  55  Mo.  560. 


g  86  LEGISLATIVE   POWER. 

f erring  to  and  considering  this  control  relative  to  the  corporate 
boundaries  of  municipal  corporations  proper  will  be  considered. 
The  same  general  principles  of  law  apply,  and  these,  so  far  as 
the  application  of  them  in  detail  is  concerned,  have  been  discussed 
in  the  sections  relating  to  corporate  boundaries,  their  establish- 
ment and  change.30  The  reason  for  the  creation  of  a  municipal 
corporation  proper  is  the  existence  of  a  congested  center  of  pop- 
ulation. The  legislature  having  power  to  create  a  public  corpo- 
ration has  the  right  to  determine  the  basis  for  the  organization 
of  municipal  corporations,  one  of  the  classes  of  public  corpora- 
tions, and  this  can  be  any  determining  factor  it  may  consider  a 
valid  and  expedient  one31  in  the  absence  of  constitutional  restric- 
tions. Some  states  even  hold  that  this  is  a  discretionary  matter 
with  the  legislature,  uncontrolled  by  subsequent  constitutional 
provisions.32  A  municipal  corporation  proper  may  have  estab- 
lished by  the  legislature  for  its  basis  of  existence  a  certain  popu- 
lation within  certain  limits,33  or  the  arbitrary  organization  of  a 
minimum  territory.34  To  put  it  concisely,  the  creation  of  a 
municipal  corporation  proper  may  be  dependent  either  upon  pop- 
ulation or  geographical  area.  If  there  are  constitutional  provi- 
sions which  limit  the  power  of  the  legislature  in  these  respects, 
such  control.  This  power  to  establish  or  change  corporate  bound- 
aries is  law-making  in  its  nature  and  an  attempted  delegation  of 
its  exercise  to  the  courts  or  a  quasi  judicial  body  or  to  executive 
officials  will  be  held  void,  it  being  incapable  of  delegation.35 
Courts  have  no  power  to  control  or  interfere  with,  in  any  way, 

so  See  §§  35  to  40,  and  55  to  65.  Mich.  123,  45  N.  W.  964.     See  cases 

si  City  of  Chicago  v.  Rumsey,  87  cited  §   13. 

111.  348;   Stoner  v.  Flournoy,  28  La.  s*  city   of  St.   Louis  v.   Allen,   13 

Ann.    850;     People    v.    Bradley,    36  Mo.  400;   Com.  v.  Blackley,  198  Pa. 

Mich.  447;  Manly  v.  City  of  Raleigh,  372,    47    All.    1104;    Perry   v.    State, 

57   N.   C.    (4   Jones,  Eq.)    370;    Wil-  9  Wis.  19.     See  cases  cited  §  14. 

Hams  v.  City  of  Nashville,  89  Tenn.  ss  city   of   Galesburg   v.    Hawkin- 

487,  15  S.  W.  364.  son,    75    111.    152.     In  this   case   the 

32  Mattox    v.    State,    115    Ga.    212,  Court  say:     "The  same  power  can- 

41   S.  E.  709;   McCallie  v.  Town  of  not  be  either  legislative  or  judicial, 

Chattanooga,    40    Tenn.     (3    Head)  as    the    legislature    may    incline    to 

317;  Wade  v.  City  of  Richmond,  18  retain    it,    or    surrender    it    to    the 

Grat.    (Va.)    583;    Town  of  Milwau-  judiciary.     If  the  boundaires  of  mu- 

kee  v.  City  of  Milwaukee,  12   Wis.  nicipal   corporations   can   be  altered 

93.  and  changed  by  the  legislature  in  its 

ss  Smith   v.   City   of   Saginaw,   81  discretion,   and   the  authorities   are 


140  LEGISLATIVE   POWER.  §   87 

the  exercise  of  this  discretionary  law-making  power  by  the  legis- 
lature.36 Where  such  action  may  change  or  affect  the  lines  of 
legislative,  judicial  or  other  districts,  if  the  jurisdiction  and  pow- 
ers of  the  altered  districts  remain  the  same  it  is  usually  held  that 
such  change  will  not  be  invalid.37  Where  there  is  a  constitutional 
provision  to  the  effect  that  a  change  of  the  boundary  of  a  city  or 
other  local  division  of  a  state,  when  it  would  alter  the  boundary 
of  an  assembly  district,  cannot  be  made  at  any  other  time  than 
the  decennial  enumeration  of  population,  a  change  except  at  that 
time  is  invalid.38 

§  87.    Legislative  power  over  public  property. 

The  power  of  the  legislature  is  full,  ample  and  supreme  over 
the  property  of  the  public  corporation,  acquired  and  held  in  its 
capacity  as  such  and  for  public  purposes.  This  property  is 
usually  acquired  through  the  exercise  of  the  power  of  taxation, 
— a  direct  gift  of  the  sovereign.  The  legislature  has  the  power  to 
provide  means  for  its  acquisition,  its  control  and  management,39 
and  its  final  disposition.40  The  rule  as  to  the  disposal  of  prop- 
erty applies  not  only  to  an  act  giving  present  authority,  but  also 

all  that  way,  then  it  is  impossible  re  Contested  Election  of  Law  Judges, 

that  the  courts  can  be  invested  with  109  Pa.   337. 

such  power."     See  authorities  cited  ss  Kinne    v.    City    of    Syracuse,  2 

note  28,  §  85.  Abb.   Dec.    (N.   Y.)    534.     See,   also, 

se  stilz    v.    City    of    Indianapolis,  People  v.  Holihan,  29  Mich.  116,  and 

55  Ind.  515;  City  of  New  Orleans  v.  People  v.  Bradley,  36  Mich.  447,  con- 

Cazelar,  27  La.  Ann.  156;   Martin  v.  struing  a  Mich.  Const,  limitation  on 

Dix,  52  Miss.  53.  the  right  of  the  legislature  to  change 

37  Howard  v.  McDiarmid,  26  Ark.  municipal  boundaries  in  such  a  man- 

100;    Sabin  v.  Curtis,  3   Idaho,   662,  ner  as  to  interfere  with  representa- 

32    Pac.   1130;    Galley   v.    Guichard,  tive  districts. 

27  La.  Ann.  396;   State  v.  Williams,  39  Potter   v.    Collis,    19   App.    Div. 

29  La.  Ann.  779;   Lafayette  F.   Ins.  392,  46  N.  Y.  Supp.  471;   McCollum 

Co.  v.   Remmers,  29   La.  Ann.   419;  v.  Smith,  19  Tenn.  (Meigs)  342,  cit- 

Opinion   of   the   Supreme   Court,   33  ing  Story,  Confl.  of  Laws,  §  447. 

Me.    587;    Opinion   of   the   Supreme  *o  Inhabitants  of  North  Yarmouth 

Court,  60  Mass.  (6  Gush.)   578;  Peo-  v.    Skillings,    45    Me.    133;    Barton 

pie  v.  Bradley,  36  Mich.  447;   Smith  County  v.  Walser,  47  Mo.  189;  Con- 

v.  City  of  Saginaw,  81  Mich.  123,  45  solidated    Ice    Co.   v.    City    of    New 

N.  W.  964;   State  v.  Blasdel,  6  Nev.  York,    53    App.    Div.    260,    65    N.    Y. 

40;   Farr  v.  City  of  Bayonne,  54  N.  Supp.  912,  but  see  this  case  to  the 

J.   Law,   125,   22  Alt.   1006.     See   In  contra. 


87 


LEGISLATIVE   POWER. 


141 


to  one  validating  previous  transfers  by  a  public  corporation.41 
The  only  limitations  upon  this  power  are  those  already  stated  and 
well-recognized,  viz.,  the  use  of  public  revenues  for  public  pur- 
poses, and  the  retention  of  local  property  and  revenues  for  public 
local  uses.  If  property  has  been  acquired  by  a  public  corporation 
in  its  capacity  as  a  private  corporation,  the  control  of  the  legisla- 
ture is  limited  by  the  general  laws  and  rules  applying  to  private 
property.42  Such  ownership  of  property  may  become  a  property, 
a  contract  or  a  vested  right  which  the  legislature  cannot  impair 
or  destroy.  A  municipal  corporation  proper  may  possess  two 
classes  of  powers  and  rights, — public  and  private.  In  all  its  pri- 
vate relations  it  maintains  the  character  of  an  individual.  In  its 
public  capacity  it  is  merely  an  agent  of  the  state  and  subject  to 
its  control. 

The  rules  as  laid  down  in  the  preceding  paragraph  apply  to  the 
real  and  personal  property  of  a  public  corporation,43  including 
streets  and  highways.4* 


41 Payne  v.  Treadwell,  16  Cal. 
220. 

42  Grogan  v.  City  of  San  Francis- 
co, 18  Cal.  590. 

Coyle  v.  Gray,  7  Houst.  (Del.)  44. 
A  system  of  waterworks  acquired 
by  a  municipal  corporation  for  the 
purpose  of  supplying  its  inhabitants 
with  water  was  held  not  private 
property. 

Bradford  v.  Shine,  13  Fla.  393; 
City  of  Savannah  v.  Steamboat  Co. 
of  Ga.,  R.  M.  Charlt.  (Ga.)  342; 
City  of  Clinton  v.  Cedar  Rapids  & 
M.  R.  R.  Co.,  24  Iowa,  455;  City 
of  Wellington  v.  Wellington  Tp.,  46 
Kan.  213;  New  Orleans,  M.  &  C.  R. 
Co.  v.  City  of  New  Orleans,  26  La. 
Ann.  478;  Proprietors  of  Mt.  Hope 
Cemetery  v.  City  of  Boston,  158 
Mass.  509,  33  N.  E.  695;  People  v. 
Common  Council  of  Detroit,  28  Mich. 
228;  Benson  v.  City  of  New  York, 
10  Barb.  (N.  Y.)  245;  People  v.  Por- 
ter, 26  Hun,  622;  affirmed  90  N.  Y. 
68;  Atkins  v.  Town  of  Randolph, 
31  Vt.  226;  Town  of  Milwaukee  v. 


City  of  Milwaukee,  12  Wis.  93. 

43  in  Meriwether  v.  Garrett,  102 
U.  S.  472,  in  the  dissenting  opinion, 
Justice  Strong  said  in  part:  "Its 
character  as  a  municipal  corporation 
does  not  affect  the  nature  of  its 
obligations  to  its  creditors  or  its 
cestuis  que  trust  or  impair  the  rem- 
edies they  would  have  if  the  city 
was  a  common  debtor  or  trustee. 
While  as  a  municipal  corporation 
the  city  had  public  duties  to  per- 
form, yet,  in  contracting  debts  au- 
thorized by  the  law  of  its  organ- 
ization, or  in  performing  a  private 
trust,  it  is  regarded  by  the  law  as 
standing  on  the  same  footing  as  a 
private  individual  with  the  same 
rights  and  duties  and  with  the  same 
liabilities  as  attend  such  persons. 
Over  its  public  duties,  it  may  be  ad- 
mitted, the  legislature  has  plenary 
authority.  Over  its  private  obliga- 
tions it  has  not." 

Small  v.  Inhabitants  of  Danville, 
51  Me.  359;  State  of.  Wisconsin  v. 
Torinus,  26  Minn.  1;  Oliver  v.  City 


142 


LEGISLATIVE   POWER. 


§   87 


This  power  of  the  legislature  is  sufficiently  broad  to  enable  it 
to  grant  to  railroad  companies  the  right  to  occupy  the  streets  and 
highways  of  subordinate  public  corporations  without  securing 


of  Worcester,  102  Mass.  489.  See, 
also,  25  Am.  Law  Rev.  398,  where 
the  following  is  quoted  from  an 
opinion  by  Judge  East  discussing 
the  character  and  nature  of  a  mu- 
nicipal corporation:  "The  functions 
of  a  municipality  are  twofold;  first, 
political,  discretionary,  legislative; 
secondly,  ministerial.  While  acting 
within  the  sphere  of  the  former 
they  are  exempt  from  liability  inas- 
much as  the  corporation  is  a  part 
of  the  government  to  that  extent 
and  its  officers  to  the  same  extent 
are  public  officers  and  as  such  en- 
titled to  the  protection  of  this  prin- 
ciple; but,  within  the  sphere  of  the 
latter,  they  drop  the  badges  of  gov- 
ernmental officers  and  become,  as  it 
were,  the  representatives  of  a  pri- 
vate corporation  in  the  exercise  of 
private  functions.  The  distinction 
between  those  legislative  powers 
which  it  holds  for  public  purposes 
as  a  part  of  the  government  of  the 
country  and  those  private  franchises 
which  belong  to  it  as  a  creature  of 
the  law  is  well  taken."  Bailey  v. 
City  of  New  York,  3  Hill  (N.  Y.) 
531;  Lindsey  v.  State,  27  Tex.  Civ. 
App.  540,  66  S.  W.  332;  Single  v. 
Marathon  County  Sup'rs,  38  Wis. 
363.  See,  also,  Cooley,  Taxation  (2d 
Ed.)  p.  688. 

Dillon,  Mun.  Corp.  (4th  Ed.)  §  66. 
"In  its  governmental  or  public  char- 
acter, the  corporation  is  made,  by 
the  state,  one  of  its  instruments,  or 
the  local  depositary  of  certain  lim- 
ited and  prescribed  political  powers, 
to  be  exercised  for  the  public  good 
on  behalf  of  the  state  rather  than 
for  itself.  In  this  respect  it  is  as- 


similated, in  its  nature  and  func- 
tions, to  a  county  corporation,  which, 
as  we  have  seen,  is  purely  part  of 
the  governmental  machinery  of  the 
sovereignty  which  creates  it.  Over 
all  its  civil,  political,  or  government- 
al powers,  the  authority  of  the  leg- 
islature is,  in  the  nature  of  things, 
supreme  and  without  limitation,  un- 
less the  limitation  is  found  in  the 
constitution  of  the  particular  state. 
But  in  its  proprietary  or  private 
character,  the  theory  is  that  the 
powers  are  supposed  not  to  be  con- 
ferred, primarily  or  chiefly,  from 
considerations  connected  with  the 
government  of  the  state  at  large,  but 
for  the  private  advantage  of  the 
compact  community  which  is  incor- 
porated as  a  distinct  legal  person- 
ality or  corporate  individual;  and 
as  to  such  powers,  and  to  property 
acquired  thereunder,  and  contracts 
made  with  reference  thereto,  the 
corporation  is  to  be  regarded  quo  ad 
hoc  as  a  private  corporation,  or  at 
least  not  public  in  the  sense  that 
the  power  of  the  legislature  over  it 
or  the  rights  represented  by  it,  is 
omnipotent." 

New  Orleans,  M.  &  C.  R.  Co.  v. 
City  of  New  Orleans,  26  La.  Ann. 
478.  See,  also,  cases  cited  §§  82  and 
84. 

« Note  26  Am.  Law  Rev.  520; 
City  of  Clinton  v.  Cedar  Rapids  & 
M.  R.  R.  Co.,  24  Iowa,  455;  City  of 
New  Orleans  v.  Hopkins,  13  La.  (0. 
S.)  326;  Spaulding  v.  Nourse,  143 
Mass.  490;  Com.  v.  Plaisted,  148 
Mass.  375;  Prince  v.  Crocker,  166 
Mass.  347;  Dietrich  v.  Schremms, 
117  Mich.  298,  75  N.  W.  618;  Guilder 


88 


LEGISLATIVE   POWER. 


143 


their  consent,  on  the  theory  that  highways  and  streets  are  dedi- 
cated to  a  public  use  and  the  legislature  as  representing  the  com- 
munity or  government  at  large  has  complete  control  over  public 
property.45 

§  88.     Over  corporate  contracts. 

Public  corporations  may,  during  their  existence  either  as  cor- 
porations de  facto  or  de  jure,  enter  into  contract  relations  with 
third  parties,  and  if  these,  at  the  time  of  their  inception,  are  valid, 
the  legislature  cannot,  although  its  powers  are  broad  as  to  the 
control  of  public  corporations  in  all  respects,  pass  laws  changing 
or  repealing  the  powers  of  the  corporation  in  such  a  manner  as 
to  impair  the  obligations  of  these  contract  rights  or  relations, 
protected  by  provisions  of  the  Federal  and  state  constitutions.48 
Laws  in  force  at  the  time  of  the  making  of  such  contracts  and 
which  were  their  authority  in  whole  or  in  part,  enter  into  and 
form  a  part  of  the  same.47  Contracts  enuring  to  the  benefit  of 


V.  Town  of  Otsego,  20  Minn.  74  (Gil. 
59);  Wager  v.  Troy  Union  R.  Co., 
25  N.  Y.  526;  People  v.  Kerr,  27  N. 
Y.  188;  People  v.  Flagg,  46  N.  Y. 
401;  Fearing  v.  Irwin,  55  N.  Y. 
486;  Simon  v.  Northup,  27  Or.  487; 
Irvin  v.  Turnpike  Co.,  2  Pen.  &  W. 
(Pa.)  466;  Mercer  v.  Pittsburgh, 
Ft.  W.  &  C.  R.  Co.,  36  Pa.  99;  Ford 
v.  Chicago  &  N.  W.  R.  Co.,  14  Wis. 
609. 

45  See    post,   chapter   IX,    discuss- 
ing the  control  of  public  property. 

46  Von  Hoffman  v.  City  of  Quincy, 
71  U.  S.   (4  Wall.)    535;  City  of  Ga- 
lena v.  Amy,  72  U.  S.  (5  Wall.)  705; 
Lee  County  v.  Rogers,   74  U.  S.    (7 
Wall.)    185;    Broughton    v.    City    of 
Pensacola,    93    U.    S.    266;    Wolff   v. 
City  of  New  Orleans,  103  U.  S.  358; 
State  v.  Jennings,  27  Ark.  419;  City 
of    San    Francisco    v.    Canavan,    42 
Cal.  541;  Columbia  County  Com'rs  v. 
King,   13    Fla.  451;    Boyd  v.   Cham- 
bers, 78  Ky.  140;   City  of  St.  Louis 
v.  Sheilds,  52  Mo.  351;   State  Board 


of  Education  v.  City  of  Aberdeen, 
56  Miss.  518;  Helena  Consol.  Water 
Co.  v.  Steele,  20  Mont.  1,  49  Pac. 
382;  Cleveland  v.  Board  of  Finance 
&  Taxation,  38  N.  J.  Law,  259;  Gab- 
ler  v.  City  of  Elizabeth,  42  N.  J. 
Law,  79;  Munday  v.  Assessors  of 
Rahway,  43  N.  J.  Law,  338;  Rader  v. 
Township  Committee  of  Union,  44 
N.  J.  Law,  259;  Tax  Assessors  of 
Rahway  v.  Munday,  44  N.  J.  Law, 
395;  Brooklyn  Park  Com'rs  v.  Arm- 
strong, 45  N.  Y.  234;  Brown  v.  City 
of  New  York,  63  N.  Y.  239;  Belo  v. 
Forsythe  County  Com'rs,  76  N.  C. 
489;  Bigler  v.  City  of  New  York,  5 
Abb.  N.  C.  51;  Goodale  v.  Fennell, 
27  Ohio  St.  426;  Western  Sav.  Fund 
Soc.  v.  City  of  Philadelphia,  31  Pa. 
175;  State  v.  City  of  Madison,  15 
Wis.  30;  State  v.  City  of  Milwaukee, 
25  Wis.  122. 

*7  Rails  County  Ct.  v.  U.  S.,  105 
U.  S.  733;  German  Sav.  Bank  v. 
Franklin  County,  128  U.  S.  526;  Co- 
lumbia County  Com'rs  v.  King,  13 


144 


LEGISLATIVE   POWER. 


§  88 


third  parties  or  to  the  corporation  itself,  become  property  and 
vested  rights,  protected  sacredly  by  all  the  power  of  the  state,  and 
which  cannot  be  impaired  or  destroyed  by  subsequent  legislation 
or  even  constitutional  provision.48  Particular  powers  of  taxation 
granted  to  public  corporations  may  become  a  part  of  such  a  con- 
tract, and  subsequent  legislation  lessening  or  destroying  such 
powers  will  be  held  unconstitutional  as  legislation  impairing  the 
obligation  of  a  contract.49  The  principle  applies  to  provisions 
for  a  sinking  fund  arid  also  to  any  property  or  security  which 
at  the  time  of  legislation  authorizing  an  issue  of  bonds  was  de- 
voted to  their  payment;  such  sinking  fund  or  means  of  payment, 
it  has  been  held,  cannot  be  diverted  to  other  uses  nor  such  legis- 
lation repealed.50  It  has  been  held,  howrever,  that  creditors  or 


Fla.  451;  Terrett  v.  Taylor,  9  Cranch 
(U.  S.)  43. 

In  Van  Hoffman  v.  City  of  Quincy, 
71  U.  S.  (4  Wall.)  535,  the  court 
says:  "It  is  also  settled  that  the 
laws  which  subsist  at  the  time  and 
place  of  the  making  of  a  contract 
and  where  it  is  to  be  performed  en- 
ter into  and  form  a  part  of  it  as  if 
they  were  expressly  referred  to  or 
incorporated  in  its  terms.  This 
principle  embraces  alike  those  which 
affect  its  validity,  construction,  dis- 
charge and  enforcement." 

*8  County  of  Moultrie  v.  Rocking- 
ham  Ten-Cent  Sav.  Bank,  92  U.  S. 
631;  State  of  Louisiana  v.  Police 
Jury  of  St.  Martin's  Parish,  111  U. 
S.  716;  City  of  Detroit  v.  Detroit 
Citizens'  St.  R.  Co.,  184  U.  S.  368; 
State  of  Minnesota  v.  Duluth  &  I. 
R.  R.  Co.,  97  Fed.  353.  In  People 
v.  State  Auditors,  42  Mich.  422,  a 
contract  by  the  legislature  for  the 
publication  of  supreme  court  reports 
was  held  not  binding  on  its  success- 
ors. 

Cape  May  &  S.  L.  R.  Co.  v.  City 
of  Cape  May,  35  N.  J.  Eq.  (8  Stew.) 
419;  Smith  v.  City  of  Appleton,  19 
Wis.  468.  But  see  City  of  St.  Louis 
v.  Sheilds,  52  Mo.  351. 


49  State  of  Louisiana  v.  Pilsbury, 
105  U.  S.  278;  State  of  Louisiana  v. 
Police  Jury  of  St.  Martin's  Parish, 
111   U.   S.   716;    Town   of  Mobile  v. 
Watson,   116   U.    S.    289;    Seibert   v. 
Lewis,    122    U.    S.    284;     Sawyer    v. 
Parish   of   Concordia,   12   Fed.    754; 
People  v.  Bond,  10  Cal.  563;   Liqui- 
dators of  City  Debts  v.  Municipality 
No.  1,  6  La.  Ann.  21;  Morris  v.  State, 
62  Tex.   728;    State  v.  City  of  Mad- 
ison, 15  Wis.  30. 

50  State   of   Louisiana   v.    City   of 
New  Orleans,   102  U.  S.  203.     "The 
obligation  of  a  contract  in  the  con- 
stitutional sense  is  the  means  pro- 
vided  by  law   by  which   it   can   be 
enforced,  by  which  the  parties  can 
be    obliged    to    perform    it.      What- 
ever legislation  lessens  the  efficacy 
of  this  means  impairs  the  obligation. 
If  it  tend  to  postpone  or  retard  the 
enforcement  of  the  contract,  the  obli- 
gation of  the  latter  is  to  that  extent 
weakened." 

State  of  Louisiana  v.  Police  Jury 
of  St.  Martin's  Parish,  111  U.  S. 
716;  Seibert  v.  Lewis,  122  U.  S.  284. 
Provisions  authorizing  the  levy  and 
collection  of  a  special  tax  to  pay 
bonds  are  a  part  of  the  contract  with 
the  creditor  and  cannot  be  repealed 


§  88 


LEGISLATIVE   POWER. 


those  holding  contract  obligations  have  no  vested  right  to  a  par- 
ticular form  of  remedy  and  the  legislature  may  abolish  or  alter 
a  remedy  without  impairing  the  contract  obligation  provided  it 
supply  one  which  is  equally  efficacious  and  available.01  Where 
a  remedy  is  limited  or  abolished,  this  will  constitute  an  impair- 
ment of  a  contract  obligation  for,  as  has  been  said,  "nothing  is 
more  important  than  the  means  of  enforcement."52  This  protec- 


unless  a  remedy  equally  efficacious 
is  substituted. 

Fazende  v.  City  of  Houston,  34 
Fed.  95;  Liquidators  of  City  Debts 
v.  Municipality  No.  1,  6  La.  Ann.  21. 

Munday  v.  Assessors  of  Rahway, 
43  N.  J.  Law,  338.  A  statute  was 
passed  relating  to  the  issue  of  writs 
of  mandamus  and  supplementing 
certain  authority  for  the  issue  of 
bonds  by  the  city  of  Rahway,  the 
effect  of  which  was  to  deprive  bond- 
holders of  their  immediate  right  to 
such  writ.  The  statute  was  held 
unconstitutional  and  the  court  said: 
"The  act  would  strip  him  of  his 
priority  and  attempts  what  in  Mar- 
tin v.  Somerville  Water-Power  Co., 
3  Wall.  Jr.  206,  Fed.  Cas.  No.  9,165, 
was  decided  to  be  beyond  legislative 
power.  It  is  as  if  the  legislature 
enacted  that  no  execution  should  is- 
sue to  enforce  a  pre-existing  judg- 
ment to  the  prejudice  of  the  inter- 
ests of  creditors  whose  claims  were 
not  yet  due." 

People  v.  Common  Council  of  Buf- 
falo, 140  N.  Y.  300.  Any  law  ma- 
terially abridging  a  remedy  for  the 
enforcement  of  a  contract  existing 
when  it  was  made  is  an  impairment 
of  its  obligation  unless  it  provides 
a  remedy  equally  adequate.  Bas- 
sett  v.  City  of  El  Paso,  88  Tex.  168, 
30  S.  W.  893;  Terry  v.  Wisconsin  M. 
&  F.  Ins.  Co.  Bank,  18  Wis.  87. 

si  State  of  Louisiana  v.  City  of 
New  Orleans,  102  U.  S.  203.  In  Na- 
tional Bank  of  Western  Ark.  v.  Se- 


bastian County,  5  Dill.  414,  Fed.  Cas. 
No.  10,040,  Judge  Parker  held  that 
in  reference  to  the  obligation  of 
contracts  this  provision  of  the  Fed- 
eral Constitution  "embraces  those 
laws  alike  which  affect  its  valid- 
ity, construction,  discharge  and  en- 
forcement," and  that  "an  act  of  a 
state  legislature  which  provides  that 
counties  are  no  longer  corporations 
— that  they  cannot  be  sued — is  void 
as  to  obligations  legally  issued  by 
such  counties  when  the  law  of  the 
state  provided  they  could  be  sued, 
when  set  up  against  a  party  seek- 
ing a  remedy  upon  the  obligations 
of  a  county  in  a  federal  court,  be- 
cause the  state  legislature  cannot 
take  away  the  right  of  a  holder  of 
such  county  obligations  to  sue  in  a 
federal  court  when  such  right  is 
given  him  by  the  constitution  and 
laws  of  the  United  States,  and  be- 
cause such  a  law  impairs  the  obliga- 
tion of  such  contracts."  But  see 
Meriwether  v.  Garrett,  102  U.  S. 
472,  and  Thompson  v.  Wiley,  46  N. 
J.  Law,  476,  where  the  agencies  were 
removed  through  which  the  courts 
could  alone  act  in  enforcing  the 
rights  of  creditors. 

52  Edwards  v.  Kearzey,  96  U.  S. 
595.  The  court  in  its  opinion  by 
Justice  Swayne  in  defining  the  obli- 
gation of  a  contract  say:  "The  ob- 
ligation of  a  contract  includes  ev- 
erything within  its  obligatory  scope. 
Among  these  elements  nothing  is 
more  important  than  the  means  of 


Abb.  Corp. — 10. 


146  LEGISLATIVE  POWER.  §  88 

tion  is  not  afforded,  however,  to  the  public  corporation  in  its 
capacity  as  such.  It  is  the  personal  property,  contract  or  vested 
right  of  the  individual  which  is  protected. 

In  discussing  the  subject  of  the  charter  of  the  corporation,  one 
of  the  differences  suggested  between  public  and  private  corpora- 
tions was  that  the  charter  or  grant  of  powers  by  the  sovereign 
to  public  corporations  did  not  partake  of  the  nature  of  a  contract 
as  between  the  donor  and  donee.63  The  charter  of  a  private  cor- 
poration is  considered  a  contract,  construed  and  enforced  as  such. 
The  charter,  however,  of  a  public  corporation  may  contain,  so  it 
has  been  held  in  some  instances,  grants  or  gifts  of  power  which 
partake  of  the  nature  of  a  contract  and  of  which  the  sovereign 
cannot  willfully  or  arbitrarily  dispossess  them.  It  is  true  that 
rights  of  this  character  are  seldom  granted,  but  it  is  none  the 
less  true  that  when  granted  the  rule  of  law  applies  as  applied  to 
the  grant  or  gift  of  a  power  to  a  private  corporation.6*  Con- 
tracts between  sovereign  states  can  only  be  entered  into55  and 
enforced  in  the  manner  provided  in  the  constitution  of  the  United 
States.  Over  such  contracts  the  power  of  the  legislature  is  nec- 
essarily limited,  if  possessed  at  all.  The  state  may,  by  the  passage 
of  legislation,  create  a  contract  obligation  which  cannot  be  de- 
stroyed by  subsequent  legislation.56 

enforcement.  This  is  the  breath  of  County  of  Hampshire  v.  County  of 
its  vital  existence.  Without  it,  the  Franklin,  16  Mass.  75;  State  v. 
contract,  as  such,  in  the  view  of  Moores,  55  Neb.  480,  76  N.  W.  175. 
the  law,  ceases  to  be,  and  falls  into  B5  Green  v.  Biddle,  8  Wheat  (U. 
the  class  of  those  'imperfect  obliga-  S.)  1.  See,  also,  as  to  the  construc- 
tions,' as  they  are  termed,  which  de-  tion  of  the  compact  between  Ken- 
pend  for  their  fulfillment  upon  the  tucky  and  Virginia  relating  to  "all 
will  and  conscience  of  those  upon  private  rights  and  interests  of  lands 
whom  they  rest.  The  ideas  of  right  within  the  district  of  Kentucky  de- 
and  remedy  are  inseparable.  'Want  rived  from  the  laws  of  Virginia 
of  right  and  want  of  remedy  are  the  prior  to  such  separation,"  Hawkins 
thing.'"  See,  also,  quotation  from  v.  Barney's  Lessee,  5  Pet.  (U.  S.) 
State  of  Louisiana  v.  City  of  New  457,  and  Fisher's  Lessor  v.  Cockerell, 
Orleans,  102  U.  S.  203,  cited  ante;  5  Pet.  (U.  S.)  248;  Chesapeake  &  O. 
Gabler  v.  City  of  Elizabeth,  42  N.  J.  Canal  Co.  v.  Ohio  R.  Co.,  4  Gill  & 
Law,  79.  J.  (Md.)  1;  Brien  v.  Elliot,  2  Pen. 

68  See  §  22.  &   W.    (Pa.)    49;    Hyde's  Lessee   v. 

5*  City  of  Richland  v.  County  of  Torrence,  2  Yeates  (Pa.)   440. 

Lawrence,  12  111.  1;  Bowdoinham  v.  ee  Antoni  v.  Greenhow,  107  U.  S. 

Richmond,   6   Me.    (6   Greenl.)    112;  769. 


§   90  LEGISLATIVE   POWER.  147 

§  89.    Legislative  control  over  trust  property  held  by  public  cor- 
porations. 

The  control  of  the  legislature  over  property  or  contract  rights 
of  the  public  corporation  includes  not  only  property  belonging 
to  the  corporation  in  its  public  capacity,  but  also  to  property 
which  it  holds  as  a  trustee  for  the  benefit  of  a  cestui  que  trust. 
The  only  limitation  upon  the  power  of  the  legislature  in  such  a 
case  is  that  the  purpose  for  which  the  property  or  its  income  is 
to  be  applied  must  not  be  changed.  This  principle  was  settled  in 
a  case  involving  the  right  of  the  city  of  Philadelphia  to  control, 
through  a  certain  board,  the  property  devised  by  Stephen  Girard 
to  it,  as  trustee,  for  the  purpose  of  maintaining,  upon  the  condi- 
tions set  forth  in  the  grant,  Girard  College,  situated  within  the 
limits  of  the  municipality.87  The  control  over  this  trust  property 
was  affected  indirectly  through  a  change  in  municipal  organiza- 
tion. 

§  90.    The  power  of  the  legislature  to  compel  the  payment  of 
debts. 

Public  corporations  like  individuals  have  certain  character- 
istics, one  of  these  being,  unfortunately,  too  often  possessed, — 
the  desire  to  avoid  the  payment  of  a  moral  or  legal  obligation. 
A  corporation  may  have  acquired  property  directly  or  indirectly, 
which  it  retains  and  of  which  it  receives  the  full  benefit ;  it  has 
been  or  is  used  by  the  corporation  for  its  legitimate  public  pur- 
poses ;  the  people  of  the  community  in  their  collective  and  public 
capacity  enjoy  its  use.  The  corporation,  however,  declines  to  pay 
those  who  have  parted  with  it  in  good  faith,  the  excuse  for  non- 
payment perhaps  being  inability  to  pay ;  an  alleged  constitutional 
provision  preventing  the  levy  of  taxes  for  such  purpose,  or,  in 
many  cases,  the  dishonest  wish  on  the  part  of  the  inhabitants  to 
avoid  the  assumption  of  burdens  after  having  enjoyed  the  benefits 
of  the  transaction,  the  debt  being  perhaps  the  result  of  an  im- 

57  Girard  v.  City  of  Philadelphia,  Mo.  543;  Greenville  v.  Mason,  53  N. 

74  U.  S.    (7  Wall.)   1;   Trustees  111.  H.   515;    Sargent  v.  Cornish,   54   N. 

Industrial  University  v.  Champaign  H.  18;  White  v.  Fuller,  39  Vt.  193; 

County  Sup'rs,  76  111.  184;   State  v.  Bass    v.    Fontleroy,    11    Tex.    698; 

Springfield    Tp.,    6    Ind.    83;    North  Town  of  Montpelier  v.  Town  of  East 

Yarmouth  v.   Skilling,   45  Me.  133;  Montpelier,   27  Vt.  704;    Id.,  29  Vt. 

Chambers  v.   City  of   St.  Louis,   29  12. 


148 


LEGISLATIVE  POWER. 


§  90 


provident  contract.  Under  these  conditions  it  is  clearly  within 
the  power  of  the  legislature  to  compel  a  payment  of  legal  and 
honest  obligations  by  the  public  corporation  in  the  manner  which 
it  may  provide,08  and  to  enforce  obedience  to  the  directions  con- 
tained in  its  positive  laws  through  proper  process  of  the  judicial 
branch  of  the  sovereign  power.  The  legislature  can  provide  for 
the  levy  and  collection  of  taxes  with  which  to  meet  this  obliga- 
tion.69 The  power  of  the  sovereign  through  its  law-making 
branch  goes  still  further,  so  it  has  been  held,  even  to  the  payment 
under  compulsion  of  a  debt  or  obligation  owing  by  a  public  cor- 
poration which  technically  can  be  avoided  but  in  favor  of  which 
there  exist  the  strongest  moral  reasons.60  It  is  also  within  the 


»8  City  of  Guthrie  v.  Ter.,  1  Okl. 
188,  31  Pac.  190;  Jackson  County 
Sup'rs  v.  La  Crosse  County  Sup'rs, 
13  Wis.  490;  Sedgwick  County 
Com'rs  v.  Bunker,  16  Kan.  498; 
Weister  v.  Hade,  52  Pa.  474;  Guil- 
ford  v.  Chenango  County  Sup'rs,  13 
N.  Y.  (3  Kern.)  143;  Carter  v.  Cam- 
bridge, 104  Mass.  236;  Brewster  v. 
City  of  Syracuse,  19  N.  Y.  116;  City 
of  New  Orleans  v.  Clark,  95  U.  S. 
644;  City  of  New  York  v.  Tenth  Nat. 
Bank,  111  N.  Y.  446. 

e»  State  of  Louisiana  v.  U.  S.,  103 
U.  S.  289;  New  York  L.  Ins.  Co.  v. 
Cuyahoga  County  Com'rs,  106  Fed. 
123;  State  v.  Parkinson,  5  Nev.  17; 
Berrian  v.  City  of  New  York,  27  N. 
Y.  Super.  Ct.  (4  Rob.)  538. 

eo  Sedgwick,  St.  Const.  Law,  313, 
314;  United  States  v.  Baltimore  & 
O.  R.  Co.,  84  U.  S.  (17  Wall.)  322. 

City  of  New  Orleans  v.  Clark,  95 
U.  S.  644.  "Assuming  then,  that  the 
bonds  were  invalid,  for  the  omis- 
sion stated,  they  still  represented 
an  equitable  claim  against  the  city. 
They  were  issued  for  work  done  in 
its  interest,  of  a  nature  which  the 
city  required  for  the  convenience  of 
its  citizens,  and  which  its  charter 
authorized.  It  was,  therefore,  com- 


petent for  the  legislature  to  inter- 
fere and  impose  the  payment  of  the 
claim  upon  the  city.  The  books  are 
full  of  cases  where  claims,  just  in 
themselves,  but  which,  from  some 
irregularity  or  omission  in  the  pro- 
ceedings by  which  they  were  creat- 
ed, could  not  be  enforced  in  the 
courts  of  law,  have  been  thus  rec- 
ognized and  their  payment  secured. 
The  power  of  the  legislature  to  re- 
quire the  payment  of  a  claim  for 
which  an  equivalent  has  been  re- 
ceived, and  from  the  payment  of 
which  the  city  can  only  escape  on 
technical  grounds,  would  seem  to  be 
clear.  Instances  will  readily  occur 
to  every  one,  where  great  wrong  and 
injustice  would  be  done  if  provision 
could  not  be  made  for  claims  of  this 
character.  For  example,  services  of 
the  highest  importance  and  benefit 
to  a  city  may  be  rendered  in  de- 
fending it,  perhaps,  against  illegal 
and  extortionate  demands;  or  mon- 
eys may  be  advanced  in  unexpect- 
ed emergencies  to  meet,  possibly,  the 
interest  on  its  securities  when  its 
means  have  been  suddenly  cut  off, 
without  the  previous  legislative  or 
municipal  sanction  required  to  give 
the  parties  rendering  the  services 


90 


LEGISLATIVE  POWER. 


149 


power  of  the  legislature,  where  there  has  been  an  alleged  assump- 
tion of  corporate  powers  under  a  misapprehension  of  authority, 


or  advancing  the  moneys  a  legal 
claim  against  the  city.  There  would 
be  a  great  defect  in  the  power  of  the 
legislature  if  it  could  not  in  such 
cases  require  payment  for  the  serv- 
ices, or  a  reimbursement  of  the 
moneys,  and  the  raising  of  the  nec- 
essary means  by  taxation  for  that 
purpose.  A  very  different  question 
would  be  presented,  if  the  attempt 
were  made  to  apply  the  means  raised 
to  the  payment  of  claims  for  which 
no  consideration  had  been  received 
by  the  city." 

United  States  v.  Realty  Co.,  163 
U.  S.  427.  "The  term  'debts'  in- 
cludes those  debts  or  claims  which 
rest  upon  a  mere  equitable  or  hon- 
orary obligation,  and  which  would 
not  be  recoverable  in  a  court  of  law 
if  existing  against  an  individual. 
The  nation,  speaking  broadly,  owes 
a  'debt'  to  an  individual  when  his 
claim  grows  out  of  general  prin- 
ciples of  right  and  justice;  when, 
in  other  words,  it  is  based  upon 
considerations  of  a  moral  or  merely 
honorary  nature,  such  as  are  bind- 
ing on  the  conscience  or  the  honor 
of  an  individual,  although  the  debt 
could  obtain  no  recognition  in  a 
court  of  law." 

Guthrie  Nat.  Bank  v.  City  of  Guth- 
rie,  173  U.  S.  528.  "We  regard  the 
power  of  the  territorial  legislature 
to  pass  this  act  as  indisputable.  In 
United  States  v.  Realty  Co.,  163 
U.  S.  427,  439,  the  power  of  Congress 
to  recognize  a  moral  obligation  on 
the  part  of  the  nation  and  to  pay 
claims  which,  while  they  are  not  of 
a  legal  character,  are  nevertheless 
meritorious  and  equitable  in  their 
nature,  was  affirmed.  The  territo- 
rial legislature  at  least  had  the  same 


authority  as  that  possessed  by  Con- 
gress to  recognize  claims  of  the  na- 
ture described."  The  court  further 
say:  "It  is  not  necessary  to  say 
in  this  case  that  the  legislature  had 
the  power  to  donate  the  funds  of 
the  municipality  for  the  purpose  of 
charity  alone.  The  facts  show  plain 
moral  grounds  for  the  act,  a  consid- 
ration  existing  in  the  benefits  re- 
ceived and  enjoyed  by  the  city  or 
by  its  predecessors  from  whom  it 
took  such  benefits." 

New  York  L.  Ins.  Co.  v.  Cuya- 
hoga  County  Com'rs,  106  Fed.  123; 
People  v.  Burr,  13  Cal.  343;  Creigh- 
ton  v.  City  &  County  of  San  Fran- 
cisco Sup'rs,  42  Cal.  446;  Carter  v. 
Cambridge,  104  Mass.  236. 

Friend  v.  Gilbert,  108  Mass.  408. 
"The  fact  that  the  town  was  under 
no  legal  obligation  to  pay  does  not 
make  it  a  gift  without  equivalent. 
It  has  been  decided  in  several  cases, 
that  towns  may  vote  money  to  in- 
demnify their  agents  who  may  in- 
cur a  liability  in  the  performance 
of  their  duties,  though  the  towns 
were  under  no  legal  obligation  to 
do  so." 

People  v.  Onondaga  Tp.  Sup'rs,  16 
Mich.  254;  State  v.  Bruce,  50  Minn. 
491.  "But  the  distinction  between 
valid  and  invalid  legislation  on  this 
subject  has  been  pointed  out  many 
times,  and  it  is  well  settled  that,  if 
there  rests  upon  the  designated  mu- 
nicipality any  obligation  or  duty, 
moral  or  equitable  (using  these 
words  in  a  large  and  popular  sense) 
to  pay  the  claim,  then  a  legislative 
act  requiring  its  payment  is  sup- 
ported as  valid  by  the  great  weight 
of  authority.  Coles  v.  Washington 
County,  35  Minn.  124,  27  N.  W.  497; 


150 


LEGISLATIVE  POWER. 


§  90 


to  compel  the  payment  of  debts  contracted  by  a  void  organiza- 
tion after  it  has  become  legally  incorporated.61 

In  this  connection  it  might  be  well  to  refer  again  to  the  power 
of  the  legislature  as  the  law-making  branch  of  the  state  to  compel 
the  creation  of  an  obligation  or  the  incurring  of  an  indebtedness 
by  public  corporations.  They  are  created  as  agencies  of  the  sov- 
ereign to  exercise  on  its  behalf  governmental  functions  and  to 
administer  public  affairs  to  a  greater  or  less  degree  under  its 
direction.  It  seems  to  be  within  the  province  and  power  of  the 
legislature  to  insist  that  public  corporations,  as  governmental 
agents,  shall  properly  perform  those  duties  and  functions  which 
ordinarily  devolve  upon  the  government  and  which  have  for  their 


State  v.  Foley,  30  Minn.  350,  and 
cases  cited.  As  the  legislature  pos- 
sesses the  constitutional  power  to 
compel  a  municipal  corporation,  out 
of  funds  in  its  treasury,  or  by 
means  of  taxes  imposed  for  that  pur- 
pose, to  meet  and  discharge  a  claim, 
•which  in  good  conscience  it  ought 
to  pay,  although  no  legal  liability 
has  previously  existed,  it  simply  re- 
mains for  us  to  discover  and  de- 
termine whether  there  rested  at  any 
time  upon  the  county,  or  upon  the 
state,  for  that  matter,  a  moral  or 
equitable  obligation  or  duty  to  re- 
fund the  amounts  paid  by  the  re- 
lator." 

Steines  v.  Franklin  Co.,  48  Mo. 
167;  North  Missouri  R.  Co.  v.  Ma- 
guire,  49  Mo.  490. 

Guilford  v.  Chenango  County 
Sup'rs,  13  N.  Y.  (3  Kern.)  143.  The 
court  say:  "The  legislature  is  not 
confined  in  its  appropriation  of  the 
public  moneys,  or  of  the  sums  to  be 
raised  by  taxation,  in  favor  of  in- 
dividuals, to  cases  In  which  a  legal 
demand  exists  against  the  state.  It 
can  thus  recognize  claims  founded 
in  equity  and  justice,  in  the  largest 
sense  of  these  terms." 

Brewster  v.  City  of  Syracuse,  19 


N.  Y.  116;  People  v.  Green,  63  Barb. 
(N.  Y.)  390;  City  of  New  York  v. 
Tenth  Nat.  Bank,  111  N.  Y.  446; 
O'Hara  v.  State,  112  N.  Y.  146;  City 
of  Philadelphia  v.  Field,  58  Pa.  320; 
Burns  v.  Clarion  County,  62  Pa.  422. 
But  see  People  v.  Lynch,  51  Cal.  15; 
Hoagland  v.  City  of  Sacramento,  52 
Cal.  142. 

Mosher  v.  Independent  School 
Dist.  of  Ackley,  44  Iowa,  122,  hold- 
ing to  the  contrary,  governed  by  con- 
stitutional limitation  of  indebted- 
ness, and  Baldwin  v.  City  of  New 
York,  42  Barb.  (N.  Y.)  549;  Id.,  45 
Barb.  359.  The  above  cases  hold- 
ing contrary  to  the  rule  stated  in 
the  text  are  based  upon  the  proposi- 
tion which  is  unquestionably  true 
that  a  public  corporation  cannot  be 
compelled  to  pay  a  claim  against  it 
where  no  obligation  either  moral, 
legal  or  equitable  exists. 

si  Guthrie  Nat.  Bank  v.  City  of 
Guthrie,  173  U.  S.  528.  But  see  Ex 
parte  Wells,  21  Fla.  280,  to  the  con- 
trary; Cooper  v.  Springer,  65  N.  J. 
Law,  594,  48  Atl.  605;  Coast  Co.  v. 
Borough  of  Spring  Lake,  56  N.  J. 
Eq.  615;  City  of  Guthrie  v.  Ten,  1 
Okl.  188. 


§  92  LEGISLATIVE  POWER.  151 

purpose  the  protection  of  life,  health,  property,  the  maintenance 
of  government,  and  the  administration  of  public  affairs ;  nongov- 
ernmental purposes,  not  within  the  proper  province  of  a  govern- 
mental agent,  the  legislature  cannot  compel  public  corporations 
to  accomplish  or  to  perform.62  The  division  between  the  obliga- 
tions which  the  legislature  can  compel  a  public  corporation  to 
assume  and  those  which  it  cannot,  can  hardly  be  characterized 
by  the  use  of  the  word  "local,"  although  to  a  certain  extent  this 
states  the  proper  basis.  To  illustrate,  the  supreme  court  of  the 
state  of  Michigan  held  that  the  legislature  could  not  compel  the 
people  of  the  city  of  Detroit  to  create  an  indebtedness  for  the 
purpose  of  laying  out  and  improving  a  public  park  within  the 
limits  of  that  city,  such  purpose  being  one,  as  it  were,  of  an  em- 
bellishment of  the  external  appearance  of  the  city.  On  the  other 
hand  it  is  quite  clear  that  if  the  city  of  Detroit  failed  to  provide 
a  proper  system  of  sewerage,  it  could  be  compelled  to  do  this 
without  the  consent  of  the  people,  the  construction  and  the  main- 
tenance of  a  system  of  sewerage  being  highly  essential  to  the 
proper  preservation  of  the  health  of  the  people,  a  governmental 
function  beyond  doubt.83 

§  91.    Retention  of  jurisdiction. 

The  sovereign  may,  in  the  organization  of  public  corporations, 
retain  such  control  over  criminal  and  other  proceedings  coming 
within  their  jurisdiction,  as  it  may  elect.6* 

§  92.    Constitutional  limitations  on  legislative  power. 

In  preceding  sections  it  has  been  suggested  that  the  only  lim- 
itations upon  the  power  of  the  legislature  to  deal  with  public 
corporations  as  it  may  elect,  are  to  be  found  in  constitutional 
provisions  or  in  inherent  fundamental  principles  of  equity.  These 

62  State  v.  Atkin,  64  Kan.  174,  67  Council   of   Detroit,   28    Mich.    228; 

Pac.    519;     People    v.    City    of    Chi-  People  v.  Flagg,  46  N.  Y.  401;  Bank 

cago,    51    111.    17;    Harward    v.    St.  of  Rome  v.  Village  of  Rome,  18  N. 

Clair  &  M.  Levee  &  Drainage  Co.,  51  Y.  38. 

111.  130;  People  v.  Common  Council  «*  United  States  v.  Baum,  74  Fed. 

of  Detroit,  28  Mich.  228.     See,  also,  43;  United  States  v.  Cornell,  2  Ma- 

§§  83  and  84,  where  many  authorities  son,  60,  Fed.  Gas.  No.  14,867;  United 

are  cited  and  considered.  States  v.   Thompson,   1   Sumn.   168, 

e»  Park    Commission    v.    Common  Fed.  Cas.  No.  16,492. 


152  LEGISLATIVE  POWER. 


§  93 


constitutional  limitations  upon  legislation  in  regard  to  either  the 
creation  of  public  corporations  or  the  management  and  control 
of  their  boundaries,  revenues  and  property,  are  usually  found  in 
provisions  prohibiting  the  passage  of  special  acts;  laws  concern- 
ing the  "business,"  the  "affairs"  or  the  "internal  affairs"  of 
public  corporations ;  laws  not  uniform  in  their  operation  through- 
out the  state,  or  regulations  directly  determining  the  manner  in 
which  changes  in  the  organic  life  of  public  corporations  may  be 
effected,  and  other  provisions  affecting  the  passage  of  legisla- 
tion.65 

§  93.    Limitations  on  the  passage  of  what  is  termed  "special  leg- 
islation." 

During  the  early  legislative  history  of  this  country  there  existed 
no  limitations  of  this  character  upon  the  power  of  the  different 
state  law-making  bodies.  Nearly  all  legislation  was  special  in 
its  nature.  A  particular  emergency  or  condition  was  met  or  pro- 
vided for  by  the  passage  of  a  special  act.  It  will  be  readily  un- 
derstood that  such  a  system  led  to  great  abuses.  The  powers  of 
particular  corporations  or  rights  granted  to  persons  depended 
not  on  what  they  deserved  or  should  properly  exercise,  but  upon 
the  influences  brought  to  bear  upon  the  law-making  body  to  grant 
them  the  powers  and  the  privileges  they  desired.  Not  only  did 
this  system  of  passing  laws  lead  to  the  granting  of  undeserved 
favors  and  powers  to  be  exercised  by  improper  and  incompetent 
bodies,  but  it  led  to  an  uncertain,  indefinite  and  un-uniform  con- 
dition of  legislation  affecting  all  interests.  The  same  conditions 
existed  to  a  large  extent  in  England  under  the  system  by  which 
the  crown,  unrestrained,  granted  charters  to  public  corporations, 
and  which  led  there  to  the  passage  by  parliament  of  the  Munici- 
pal Corporations  Act,  5  &  6  "Wm.  IV,  c.  76,  to  remedy  the  evils 
and  abuses  which  existed  as  a  result  of  the  absence  of  limitations 
and  regulations. 

Different  states  of  the  Union  have  adopted  in  their  constitu- 
tions, or  in  amendments,  limitations  upon  the  right  of  legislatures 
to  pass  acts  special  in  their  nature  or  to  meet  a  special  condition 
or  action.  The  wording  of  the  constitutional  provision  in  Min- 
es Stanly  County  Com'rs  v.  Coler.Cal.  46;  State  v.  Cheetham,  21  Wash. 
96  Fed.  284;  People  v.  Coleman,  4437. 


§93 


LEGISLATIVE   POWER. 


153 


nesota  is  a  good  illustration  of  the  form  usually  adopted,  though 
many  do  not  include  the  details  there  enumerated.68 

The  particular  subjects  usually  covered  by  constitutional  pro- 
visions prohibiting  the  passage  of  special  legislation  affecting  the 
creation  or  the  life  of  public  corporations,  relate  to  their  creation, 
the  amendment  or  repeal  of  their  charters,67  the  alteration  or 


so  Minn.  Const,  art.  4,  §  33:  "In 
all  cases  when  a  general  law  can  be 
made  applicable  no  special  law  shall 
be  enacted;  and  whether  a  general 
law  could  have  been  made  applicable 
in  any  case  is  hereby  declared  a 
judicial  question,  and  as  such  shall 
be  judicially  determined  without  re- 
gard to  any  legislative  assertion  on 
that  subject.  The  legislature  shall 
pass  no  local  or  special  law  regulat- 
ing the  affairs  of,  or  incorporating, 
erecting,  or  changing  the  lines  of 
any  county,  city,  village,  township, 
ward  or  school  district,  or  creating 
the  offices,  or  prescribing  the  pow- 
ers and  duties  of  the  officers  of,  or 
fixing,  or  relating  to  the  compensa- 
tion, salary  or  fees  of  the  same,  or 
the  mode  of  election  or  appointment 
thereto;  authorizing  the  laying  out, 
opening,  altering,  vacating  or  main- 
taining roads,  highways,  streets  or 
alleys;  *  *  *  locating  or  chan- 
ging county  seats;  regulating  the 
management  of  public  schools,  the 
building  or  repairing  of  school 
houses,  and  the  raising  of  money  for 
such  purposes;  *  *  *  creating 
corporations,  or  amending,  renew- 
ing, extending  or  explaining  the 
charters  thereof;  granting  to  any 
corporation,  association  or  individ- 
ual any  special  or  exclusive  privi- 
lege, immunity  or  franchise  what- 
ever, or  authorizing  public  taxation 
for  a  private  purpose.  Provided, 
however,  that  the  inhibitions  of  local 
or  special  laws  in  this  section  shall 
not  be  construed  to  prevent  the  pass- 


age of  general  laws  on  any  of  the 
subjects  enumerated."  See,  also, 
Const,  of  Ark.  art.  XII,  §  3;  Cal. 
art.  XI,  §  6;  Colo.  art.  XIV,  §  13; 
Idaho,  art.  XII,  §  1;  Iowa,  art.  VIII, 
§  1,  Kan.  art.  XII,  §  5;  Ky.  §  59;  Mo. 
art.  IX,  §  7;  N.  J.  art.  IV,  §  7, 
par.  11;  N.  D.  art.  VI;  Ohio,  art 
XIII,  §  6;  S.  D.  art.  X,  §  1;  Tex.  art. 
XI,  §§  4,  5.  This  provision  applies 
only  in  case  of  cities  and  towns  hav- 
ing less  than  10,000  inhabitants; 
Wash.  Const,  art.  XI,  §  10;  W.  Va. 
Const,  art.  XI,  §  1;  Wis.  Amend.  IV, 
§  32 ;  Wyo.  Const,  art.  13.  A  major- 
ity of  the  electors  must  consent  to 
the  incorporation  of  any  district  as 
a  municipality. 

67  See  notes  in  §  9.  State  v.  Duval 
County  Com'rs,  23  Fla,  483;  City  of 
Atchison  v.  Bartholow,  4  Kan.  124; 
State  v.  Capdevielle,  104  La.  561,  29 
So.  215;  City  of  Wyandotte  v.  Wood, 
5  Kan.  603;  State  v.  Leffingwell,  54 
Mo.  458,  where  that  provision  of  the 
Mo.  Const,  that  corporations  cannot 
be  created  by  special  act  except  for 
municipal  purposes  is  fully  consid- 
ered. The  court  holds  that  a  cor- 
poration for  "municipal  purposes" 
must  be  one  connected  with  a  mu- 
nicipal corporation  itself  and  organ- 
ized and  created  for  the  purpose  of 
carrying  out  some  of  the  objects  for 
which  such  corporations  are  organ- 
ized. People  v.  Draper,  15  N.  Y. 
561. 

Atkinson  v.  Marietta  &  C.  R.  Co., 
15  Ohio  St.  21.  "These  provisions 
of  the  constitution  are  too  explicit 


154 


LEGISLATIVE   POWER. 


change  of  their  boundaries,  their  mode  of  raising  revenues,68  and 
their  expenditure  of  public  moneys.69 

The  power  of  the  legislature  to  pass  general  laws  under  con- 
stitutional authority  classifying  public  corporations  and  author- 
izing the  exercise  of  different  powers  by  the  different  classes  is 
a  subject  of  sufficient  importance  to  be  discussed  in  a  succeeding 
section.70 

The  constitutional  provision  in  Minnesota  to  the  effect  that  the 
question  of  whether  a  general  law  could  have  been  made  appli- 
cable in  any  case  was  a  judicial  question  and  to  be  "judicially 
determined"  without  regard  to  any  legislative  assertion  on  that 
subject  is  one  not  everywhere  followed.71  A  general  law  has 
been  defined  as  "a  statute  which  relates  to  persons  or  things  as 
a  class  is  a  general  law,  while  a  statute  which  relates  to  particu- 
lar persons  or  things  of  a  class  is  special. '  '72  The  mere  arbitrary 


to  admit  of  the  least  doubt  that 
they  were  intended  to  disable  the 
General  Assembly  from  either  cre- 
ating corporations,  or  conferring 
upon  them  corporate  powers,  by  spe- 
cial acts  of  legislation.  It  was  in- 
tended to  correct  an  existing  evil, 
and  to  inaugurate  the  policy  of  plac- 
ing all  corporations  of  the  same 
kind  upon  a  perfect  equality  as  to 
all  future  grants  of  power  of  mak- 
ing such  laws  applicable  to  all  parts 
of  the  state,  and  thereby  securing 
the  vigilance  and  attention  of  its 
whole  representation;  and  finally, 
of  making  all  judicial  constructions 
of  their  powers,  or  the  restrictions 
imposed  upon  them,  equally  applica- 
ble to  all  corporations  of  the  same 
class." 

State  v.  City  of  Cincinnati,  20 
Ohio  St.  18.  But  see  State  v.  Denny, 
118  Ind.  382,  21  N.  E.  252,  and  City 
of  Evansville  v.  State,  118  Ind.  426, 
21  N.  E.  267,  discussing  the  right 
of  the  people  in  incorporated  munici- 
palities to  local  self-government. 

ss  City  of  Wyandotte  v.  Wood,  5 
Kan.  603;  State  v.  City  of  Cincin- 


nati, 20  Ohio  St.  18;  Com.  v.  Mac- 
ferron,  152  Pa.  244;  Rohde  v.  Sea- 
vey,  4  Wash.  91,  29  Pac.  768;  City 
of  Port  Townsend  v.  Sheehan,  6 
Wash.  220,  33  Pac.  427. 

6»  Pratt  v.  Browne,  135  Cal.  649, 
67  Pac.  1082;  San  Luis  Obispo  Coun- 
ty v.  Graves,  84  Cal.  75. 

™  See  §  94,  post. 

"Guthrie  Nat.  Bank  v.  City  of 
Guthrie,  173  U.  S.  528;  People  v. 
Levee  Dist.  No.  6  of  Sutter  County 
(Cal.)  63  Pac.  342;  City  of  St.  Louis 
Com'rs  v.  Shields,  62  Mo.  247;  Von 
Phul  v.  Hammer,  29  Iowa,  222;  Her- 
mann v.  Town  of  Guttenburg,  63  N. 
J.  Law,  616,  44  Atl.  758. 

72  in  Pepin  Tp.  v.  Sage  (C.  C.  A.) 
129  Fed.  657,  it  was  said,  quoted 
from  Nichols  v.  Walter,  37  Minn. 
264,  "A  law  is  general  and  uniform 
in  its  operation  which  operates 
equally  upon  all  the  subjects  within 
the  class  of  subjects  for  which  the 
rule  is  adopted;  but,  as  we  have 
said,  the  legislature  cannot  adopt  a 
mere  arbitrary  classification,  even 
though  the  law  be  made  to  operate 
equally  upon  each  subject  of  each 


§  93 


LEGISLATIVE  POWER. 


155 


grouping,  classifying  or  arranging  of  certain  objects  will  not  of 
itself  make  legislation  general.  There  must  be  a  logical  basis 
for  the  desired  effect  independent  of  conditions  or  circumstances 
then  existing.  As  has  been  said :  "It  is  not  necessary  that  a  law 
should  operate  upon  all  counties  and  cities  to  be  constitutional. 
If  the  law  is  general  and  uniformly  operating  upon  all  of  a  cer- 
tain necessary  or  reasonable  class,  or  upon  all  who  are  brought 
within  the  relations  and  circumstances  provided  in  the  act,  and 
such  law  has  provision  for  future  as  well  as  present  operation, 
it  is  not  obnoxious  to  limitations  against  special  and  local  legis- 
lation."73 


of  the  classes  adopted.  An  illustra- 
tion and  example  of  that  we  take 
from  Richards  v.  Hammer,  42  N.  J. 
Law,  435,  440:  'Thus  a  law  enact- 
ing that  in  every  city  in  the  state 
in  which  there  are  ten  churches 
there  should  be  three  commission- 
ers of  the  water  department,  with 
certain  prescribed  duties,'  would 
present  a  specimen  of  such  law.  So 
in  the  matter  we  have  supposed,  of 
granting  powers  and  privileges  to 
incorporated  villages,  if  those  situ- 
ated on  rivers  were  placed  in  a  class 
for  the  purpose  of  conferring  on 
them  special  powers  and  privileges 
not  referring  to  nor  suggested  by 
the  peculiarity  of  their  situation — 
as,  for  instance,  for  the  purpose  of 
maintaining  high  schools — the  class- 
ification would  be  merely  arbitra- 
ry." Wheeler  v.  City  of  Philadel- 
phia, 77  Pa.  338. 

See,  also,  State  v.  Cooley,  56  Minn. 
540,  where,  on  reargument,  p.  549, 
Justice  Collins  said  in  discussing  the 
distinction  between  a  general  and 
special  law:  "Hence,  a  general  law 
does  not  import  universality  in  the 
subject  or  operation  of  the  law.  'Gen- 
eral' is  defined  by  Webster  as  relat- 
ing to  a  genus;  pertaining  to  a 
whole  class  or  order.  The  line  of 
demarcation  between  general  laws 


and  special  laws  often  seems  indefi- 
nite and  difficult  to  draw;  but,  if  the 
principles  upon  which  the  distinc- 
tion rests  are  kept  in  mind,  the  dif- 
ficulty is  not  nearly  so  great  as 
might  seem.  A  law  is  general,  In 
the  constitutional  sense,  which  ap- 
plies to  and  operates  uniformly  upon 
all  members  of  any  class  of  persons, 
places  or  things  requiring  legislation 
peculiar  to  itself  in  matters  covered 
by  the  law;  while  a  special  law  is 
one  which  relates  and  applies  to 
particular  members  of  a  class,  either 
particularized  by  the  express  terms 
of  the  act,  or  separated  by  any  meth- 
od of  selection  from  the  whole  class 
to  which  the  law  might,  but  for  such 
limitation,  be  applicable.  And  in 
this  connection  there  should  be  kept 
In  mind  the  distinction  between 
'public'  and  'private,'  and  'general' 
and  'special,'  as  the  latter  terms  are 
used  in  these  constitutional  restric- 
tions; for  special  legislation  in  the 
constitutional  sense  may  be  either 
public  or  private." 

73  Harwood  v.  Wentworth,  162  U. 
S.  547;  Fellows  v.  Walker,  39  Fed. 
651;  City  of  Topeka  v.  Gillett,  32 
Kan.  431;  State  v.  Kansas  City,  50 
Kan.  508,  31  Pac.  1102;  Devine  v. 
Cook  County  Com'rs,  84  111.  591; 
West  Chicago  Park  Com'rs  v.  Me- 


156                                       LEGISLATIVE  POWER.  §   94 

§  94.    Constitutionality  of  laws  classifying  public  corporations. 

In  a  preceding  section,  attention  has  been  called  to  the  con- 
stitutional limitations  upon  the  power  of  the  legislature  to  pass 

Mullen,  134  111.  170,  25  N.  E.  677;  true  practical  limitation  of  the  legis- 

Cummings  v.   City  of  Chicago,   144  lative  power  to  classify  is  that  the 

111.  563,  33  N.  E.  855;  State  v.  Cooley,  classification  shall  be  upon  some  ap- 

56  Minn.  540,  where  the  court  said  parent  natural  reason — some  reason 

on    reargument:     "By    necessity    is  suggested   by   necessity,   by   such   a 

meant   practical,   and    not   absolute,  difference  in  the  situation  and  cir- 

necessity.     But    the    characteristics  cumstances    of   the   subjects   placed 

which    will    serve    as    a    basis    of  in  different  classes  as  suggests  the 

classification    must    be    substantial,  necessity   or   propriety   of   different 

and  not  slight  or  illusory.     For  ex-  legislation   with    respect    to    them." 

ample,    distinctions    due   merely    to  Anderson  v.  City  of  Trenton,  42  N. 

pre-existing  repealable  special  legis-  J.    Law,    487;    State   v.    Spaude,    37 

lation  would  not,  of  themselves,  con-  Minn.  322,  34  N.  W.  165;   Codlin  v. 

stitute    a    proper    basis    of    classifi-  Kohlhousen,   9  N.  M.   565;   State  v. 

cation,  for  that  would  tend  tu  per-  Mitchell,  31  Ohio  St.  592;    State  v. 

petuate  the  very  peculiarities  which  Anderson,  44  Ohio  St.  247;  Bronson 

the  constitution  was  designed  ulti-  v.  Oberlin,  41  Ohio  St.  476. 

mately  to  remove."     State  v.  Herr-  Wheeler  v.   City  of  Philadelphia, 

mann,  75  Mo.  340;   Nichols  v.  Wai-  77  Pa.  338.     "Legislation  is  intend- 

ter,  37  Minn.  272,  where  the  court  ed  not  only  to  meet  the  wants  of  the 

say  "we  quote  again  from  Richards  present,    but    to    provide    for    the 

v.  Hammer,  42  N.  J.  'Law,  435,  'but  future.     It  deals  not  with  the  past, 

the  true  principle  requires  something  but  in   theory   at   least,   anticipates 

more  than  mere  designation  by  such  the  needs  of  a  state,  healthy  with  a 

characteristics  as  will  serve  to  classi-  vigorous  development.     It  is  intend- 

fy,  for  the  characteristics  which  thus  ed  to  be  permanent.     At  no  distant 

serve  as  the  basis  for  classification  day,    Pittsburgh    will    probably    be- 

must  be  of  such  a  nature  as  to  mark  come  a  city  of  the  first  class.     In 

the  objects  so  designated  as  peculiarly  the   meantime,    is   the  classification 

requiring  exclusive  legislation.   There  as   to   cities  of   the   first  class   bad 

must    be   a   substantial    distinction,  because    Philadelphia    is    the    only 

having  reference  to  the  subject-mat-  one   of   the   class?     We   think   not. 

ter  of  the  proposed  legislation,  be-  Classification  does  not  depend  upon 

tween  the  objects  or  places  embraced  numbers.    The  first  man,  Adam,  was 

in  such  legislation  and  the  objects  as  distinctly  a  class  when  the  breath 

or  places  excluded.     The  marks  of  of  life  was  breathed  into  him  as  at 

distinction   on  which   the  classifica-  any   subsequent   period.     The   word 

tion  is  founded  must  be  such,  in  the  is   used  not   to   designate   numbers, 

nature  of   things,  as  will,  in  some  rea-  but  a  rank  or  order  of  persons  or 

sonable  degree,  at  least,  account  for  things;   in  society  it  is  used  to  in- 

or  justify  the  restriction  of  the  leg-  dicate    equality,    or    persons    distin- 

islation,'  "  and  continue,  "Or,  to  state  guished  by  common  characteristics; 

it  differently,  though  not  so  well,  the  as,  the  trading  classes,  the  laboring 


§  94  LEGISLATIVE   POWER.  157 

what  is  ordinarily  termed  "special  legislation, "  these  requiring  the 
passage  of  laws  general  in  their  nature  and  under  the  provisions 
of  which  all  bodies  fulfilling  or  meeting  the  conditions  specified 
can  become  organized.  The  necessity  for  legislation  classifying 
public  corporations  arises  from  the  fact,  so  often  repeated,  that 
the  density  of  population  varies  in  different  portions  of  the  state, 
and  that  those  portions  thickly  populated  experience  wants  and 
require  for  their  proper  government,  and  for  the  proper  admin- 
istration of  public  and  governmental  affairs  and  functions,  or- 
ganizations or  forms  of  government  more  complex  in  their  char- 
acter than  those  required  by  sparsely  settled  regions.  The  con- 
stitutionality of  legislation  providing  for  the  classification  of 
public  corporations  is  well  established,  so  long  as  it  comes  within 
the  constitutional  inhibition,  and  is  based  upon  some  distinction 
that  renders  the  legislation  reasonable  and  expedient.74  A  classi- 
fication is  inoperative  when  based  upon  unsubstantial,  arbitrary 
or  illogical  differences  or  characteristics.  "There  must  be  sub- 
stantial distinctions  having  a  reference  to  the  subject-matter  of 
the  proposed  legislation  between  the  objects."75  There  exists,  as 
one  basis  of  classification,  density  of  population,76  and  as  another 

classes;    in  science,  it  is  a  division  189;  State  v.  Babcock,  25  Neb.  709; 

or  arrangement  containing  the  sub-  State  v.  Stuht,  52  Neb.  209;    Gibbs 

ordinate   divisions  of  order,   genus,  v.  Morgan,  39  N.  J.  Eq.   (12  Stew.) 

and  species."  126;    Van  Riper  v.    Parsons,   40   N. 

Com.  v.  Patton,  88  Pa.  258;  Davis  J.  Law,   123;   Anderson  v.  Trenton, 

v.   Clark,  106  Pa.  377;   Morrison   v.  42  N.  J.   Law,  486;    Van  Giesen   v. 

Bachert,  112  Pa.  322;  City  of  Scran-  Bloomfield,  47  N.  J.  Law,  442;  Long 

ton  v.  Silkman,  113  Pa.  191,  6  Atl.  Branch  Police,  S.  &  I.   Commission 

146;    Lloyd   v.   Smith,   176   Pa.   213,  v.  Sloane,  49  N.  J.  Law,  356;   State 

35  Atl.  200;   Burkholtz  v.  State,  84  v.  Borough  of  Clayton,  53  N.  J.  Law, 

Tenn.    (16  Lea)    71.  277;  McLaughlin  v.  City  of  Newark, 

7*Darcy  v.  City  of  San  Jose,  104  57  N.  J.  Law,  298;   State  v.  City  of 

Cal.    642;    Carpenter    v.    People,    8  Cincinnati,  52  Ohio  St.  419;  City  of 

Colo.  116.  Reading    v.    Savage,    124    Pa.    328; 

Green  v.  Com.,  95  Ky.  233.     The  Johnson  v.  Martin,  75  Tex.  33;  Peo- 

assignment  of  a  city  to  a  particular  pie  v.  /"age,  6  Utah,  353. 
class  is  a  legislative  act  and  cannot        "  Richards  v.  Hammer,  42  N.  J. 

be  interfered  with  by  the  courts  for  Law,  435;  State  v.  Borough  of  Clay- 

the  reason  that  it  has  not  the  nee-  ton,  53  N.  J.  Law,  277;   Ayars'  Ap- 

essary  population  to  entitle  it  to  a  peal,  122  Pa.  266. 
place  in  such  class.  ™  Donlon  v.   Jewett,  88  Cal.  530; 

Brown   v.    Holland,    97    Ky.    249;  Kumler  v.   San   Bernardino  County 

Kansas  City  v.  Stegmiller,   151  Mo.  Sup'rs,  103  Cal.  393;  Darcy  v.  Com- 


153 


LEGISLATIVE   POWER. 


§94 


the  character  of  the  powers  and  duties  and  functions  necessary 
to  be  performed  and  exercised.77  Acts  passed  classifying  public 
corporations  have  been  attacked  most  frequently  upon  the  consti- 
tutional ground  of  special  legislation.  Sometimes  the  power  is 
given  to  the  legislature  of  the  state  to  determine  for  itself  whether 
a  special  condition  can  be  satisfied  under  the  provisions  of  general 
laws  governing  such  circumstances,  or  whether  it  is  necessary  to 
pass  a  law  which  it  may  hold  general.  In  other  cases,  as  has 
been  already  suggested,  this  power  of  deciding  when  a  general 
law  is  applicable  is  given  to  the  judicial  branch  of  the  state.78 

In  determining  the  character  of  certain  legislation  as  special 
or  otherwise,  coming  within  the  constitutional  prohibition,  its 
application  should  not  be  considered.  That  it  may  apply  to  but 
one  municipality  or  public  corporation  in  the  state  does  not  es- 
tablish or  fix  its  character,  therefore,  as  a  special  act.79  That  the 


mon  Council  of  San  Jose,  104  Cal. 
642;  Fragley  v.  Phelan,  126  Cal.  383; 
Pratt  v.  Browne,  135  Cal.  649;  Peo- 
ple v.  Cooper,  83  111.  585;  Green  v. 
Com.,  95  Ky.  233,  24  S.  W.  610; 
Alexander  v.  City  of  Duluth,  77 
Minn.  445;  Kelly  v.  Meeks,  87  Mo. 
396;  In  re  Sewer  Assessment  for 
Passaic,  54  N.  J.  Law,  156,  23  Atl. 
517;  Wood  v.  Atlantic  City,  56  N. 
J.  Law,  232,  28  Atl.  427;  Closson  v. 
Board  of  License  &  Excise  of  Tren- 
ton, 48  N.  J.  Law,  438;  Paul  v. 
Judge  of  Circ.  Ct.  of  Gloucester 
County,  50  N.  J.  Law,  585;  Warner 
v.  Hoagland,  51  N.  J.  Law,  62.  In 
State  v.  Wall,  47  Ohio  St.  499,  a 
mere  increase  in  population  held  not 
to  advance  a  city  from  second  to 
first  class  without  complying  with 
the  provisions  of  the  statute  rela- 
tive to  such  a  change.  Kilgore  v. 
Magee,  85  Pa.  401;  Luzerne  County 
v.  Glennon,  109  Pa.  564;  Land,  Log 
&  Lumber  Co.  v.  Brown,  73  Wis. 
294. 

77  Darcy  v.  Common  Council  of 
San  Jose,  104  Cal.  642;  People  v. 
Londoner,  13  Colo.  303,  22  Pac. 


764;  Rohde  v.  Seavey,  4  Wash.  91, 
29  Pac.  768. 

78  See  cases  cited  In  §  92;  Earle 
v.  Board  of  Education  of  San  Fran- 
cisco, 55  Cal.  489;  City  of  Topeka  v. 
Gillett,  32  Kan.  431;  State  v.  Herr- 
mann, 75  Mo.  340;  Van  Giesen  v. 
Inhabitants  of  Bloomfield,  47  N.  J. 
Law,  442;  State  v.  Pugh,  43  Ohio  St. 
98;  Scowden's  Appeal,  96  Pa.  422. 

7»  Fellows  v.  Walker,  39  Fed.  651; 
Darrow  v.  People,  8  Colo.  417;  State 
v.  Kolsem,  130  Ind.  434,  29  N.  E. 
595;  Louisville  School  Board  v.  Su- 
perintendent of  Public  Instruction, 
102  Ky.  394,  43  S.  W.  718;  State  v. 
Graham,  16  Neb.  74;  State  v.  Stuht, 
52  Neb.  209,  71  N.  W.  941;  Mar- 
met  v.  State,  45  Ohio  St.  63.  But 
State  v.  Jackson  County  Ct.,  89  Mo. 
237,  holds  a  law  that  can  apply  to 
but  one  county  in  a  state  special 
legislation.  See,  also,  State  v.  An- 
derson, 44  Ohio  St.  247,  that  decides 
legislation  local  and  special  classify- 
ing cities  upon  the  basis  of  popula- 
tion where,  according  to  the  last 
Federal  census,  there  is  but  one  city 
fulfilling  the  conditions  required. 


95 


LEGISLATIVE  POWER. 


159 


law  has  for  its  basis  of  classification  reasonable  and  -uniform  con- 
ditions, and  genuine  and  substantial  distinctions  which  may  apply 
to  the  future  as  well  as  existing  conditions,  seems  to  be  the  test,80 
though  some  cases  hold  that  where  the  purpose  of  the  law  is  tem- 
porary only,  if  it  creates  a  distinctive  class  based  upon  existing 
circumstances  it  may  still  be  constitutional.81  The  act  passed  by 
a  legislature  may  provide  that  before  it  shall  become  operative 
the  consent  of  the  people  affected  shall  be  given,  and  this  condi- 
tion does  not,  necessarily,  constitute  it  special  legislation.82 

§  95.    Other  constitutional  objections. 

The  unconstitutionality  of  legislation  affecting  public  corpora- 
tions has  been  urged  not  only  upon  the  ground  that  it  is  special 
legislation  but  also  because  state  constitutions  may  contain  pro- 
visions that  all  laws  relating  to  certain  matters  "shall  be  uniform 
in  their  operation  throughout  the  state,"83  or  there  may  be  also 
provisions  which  prohibit  the  legislature  from  passing  any  local 
or  special  law  "regulating  the  affairs  of  counties,  cities,  etc.,"84 


so  Ewing  v.  Hoblitzelle,  85  Mo.  64; 
Kelly  v.  Meeks,  87  Mo.  396;  Foley 
v.  City  of  Hoboken,  61  N.  J.  Law, 
478,  38  Atl.  833;  Angell  v.  Cass  Coun- 
ty, 11  N.  D.  265,  91  N.  W.  72;  State 
v.  Hawkins,  44  Ohio  St.  98. 

si  Iowa  R.  Land  Co.  v.  Soper,  39 
Iowa,  112;  Nichols  v.  Walter,  37 
Minn.  272;  Cobb  v.  Bord,  40  Minn. 
479;  State  v.  Cooley,  56  Minn.  548; 
Flynn  v.  Little  Falls  Elec.  &  Water 
Co.,  74  Minn.  180;  State  v.  City  of 
Thief  River  Falls,  76  Minn.  15; 
Alexander  v.  City  of  Duluth,  77 
Minn.  445. 

sa  People  v.  Kipley,  171  111.  44. 
In  State  v.  Copeland,  66  Minn.  315, 
Minnesota  Laws  1895,  c.  228,  grant- 
ing certain  cities  charter  powers  to 
take  effect  when  adopted  by  a  city, 
held  unconstitutional  as  being  in 
contravention  of  Const,  art.  4,  §§  33 
and  34.  City  of  Reading  v.  Savage, 
124  Pa.  328;  Warner  v.  Hoagland, 
51  N.  J.  Law,  62;  Com.  v.  Reynolds, 


137  Pa.  389.  Pittsburgh's  Petition 
for  Board  of  Viewers,  138  Pa.  401. 
This  case  construes  Pennsylvania 
Act  June  14,  1887,  and  holds  it  con- 
stitutional against  the  objection  that 
it  was  a  local  act,  because  provid- 
ing a  certain  time  within  which  it 
should  go  into  operation  as  to  cities 
of  a  certain  grade. 

ss  City  of  Kenton  v.  State,  52  Ohio 
St.  59,  38  N.  E.  885. 

s*  Appeal  of  Scranton  School  Dist, 
113  Pa.  176;  Appeal  of  Ayars,  122 
Pa.  266;  City  of  Reading  v.  Savage, 
124  Pa.  328.  See,  also,  Const,  of 
Cal.  art.  IV,  §  25,  par.  9;  Colo.  art. 
V,  §  25;  Idaho,  art.  Ill,  §  19;  111. 
art.  IV,  §  22;  Ind.  art.  IV,  §  22; 
Mo.  art.  IV,  §  53;  Mont.  art.  V,  §  26; 
Neb.  art.  Ill,  §  15;  Nev.  art.  IV, 
§20;  N.  J.  art.  IV,  §  7,  par.  11; 
N.  D.  art.  II,  §  69,  pars.  4,  32;  Pa. 
art.  Ill,  §  7;  S.  D.  art.  Ill,  §  23, 
par.  4;  Tex.  art.  Ill,  §  56;  W.  Va. 
art.  VI,  §  39;  Wyo.  art.  Ill,  §  27. 


160 


LEGISLATIVE  POWER. 


§  95 


or  "regulating  the  internal  affairs  of  towns  and  counties,"85  and 
acts  or  resolves  of  the  legislature  may  come  within  the  prohibi- 
tions contained  in  these  provisions.  That  a  bill  deals  with  more 
than  one  subject,  one  only  being  expressed  in  its  title,  is  another 
constitutional  objection  urged  against  legislation  looking  to  the 
organization  or  control  of  public  corporations.  Such  a  provision 
is  intended  to  afford  a  protection  to  the  people  and  to  legislators 
against  the  passage  of  bills  dealing  with  more  than  one  subject, 
some  of  which  might  not  be,  but  for  this  prohibition,  included  in 
the  title.86  It  is  not  necessary,  however,  in  the  title  of  a  bill,  to 
recite  in  detail  all  its  provisions.  General  information  or  notice 
of  the  subject  legislated  upon  is  sufficient.87 


es  Meredith  v.  City  of  Perth  Am- 
boy,  60  N.  J.  Law,  134,  36  Atl.  779; 
Grey  v.  City  of  Dover,  62  N.  J.  Law, 
40,  40  Atl.  640;  Hermann  v.  Town 
of  Guttenberg,  63  N.  J.  Law,  616, 
44  Atl.  758.  See,  also,  constitutional 
references  in  preceding  note. 

seMontclair  v.  Ramsdell,  107  U. 
S.  147,  where  the  court  in  an  opin- 
ion written  by  Judge  Harlan  con- 
struing such  a  constitutional  pro- 
vision of  the  state  of  New  Jersey 
said:  "The  objections  should  be 
grave  and  the  conflict  between  the 
statute  and  the  constitution  palpable 
before  the  judiciary  should  disre- 
gard a  legislative  enactment  upon 
the  sole  ground  that  it  embraced 
more  than  one  object  or  if  but  one 
object  that  it  was  not  sufficiently 
expressed  by  the  title."  Otoe  Coun- 
ty v.  Baldwin,  111  U.  S.  1;  Ackley 
School  Dist.  v.  Hall,  113  U.  S.  135; 
Mahomet  v.  Quackenbush,  117  U.  S. 
609;  Carter  County  v.  Sinton,  120  U. 
S.  517;  State  v.  Haverly,  62  Neb. 
767;  Astor  v.  Arcade  R.  Co.,  113 
N.  Y.  93,  where  many  cases  are  cited 
in  the  briefs.  Judge  Earl  in  his 
opinion  on  page  109  says  on  the 
purpose  of  such  a  provision,  "The 
constitutional  provision  referred  to 


has  been  deemed  by  statesmen  and 
jurists,  conditores  legum,  of  so  much 
importance  that  it  is  found  in  the 
fundamental  laws  of  most  of  the 
states.  Its  purpose  is  to  prevent 
fraud  and  deception  by  concealment, 
in  the  body  of  acts,  of  subjects  not  by 
their  titles  disclosed  to  the  general 
public  and  to  legislators  who  may 
rely  upon  them  for  information  as 
to  pending  legislation.  When  the 
subject  is  expressed,  all  matters  fair- 
ly and  reasonably  connected  with 
it,  and  all  measures  which  will  or 
may  facilitate  its  accomplishment, 
are  proper  to  be  incorporated  in  the 
act  and  are  germane  to  the  title. 
The  title  must  be  such,  at  least,  as 
fairly  to  suggest  or  give  a  clue  to 
the  subject  dealt  with  in  the  act, 
and  unless  it  comes  up  to  this  stan- 
dard it  falls  below  the  constitutional 
requirement."  In  re  Airy  St.,  113 
Pa.  281.  See,  also,  section,  post, 
"Title  of  ordinances." 

ST  State  of  Illinois  v.  Illinois  Cent. 
R.  Co.,  33  Fed.  730;  Lockhart  v. 
City  of  Troy,  48  Ala.  581;  City  of 
Savannah  v.  State,  4  Ga.  26;  Hill  v. 
Town  of  Decatur  Com'rs,  22  Ga. 
203;  Davis  v.  Woolnough,  9  Iowa, 
104;  People  v.  Mahaney,  13  Mich. 


§   95  LEGISLATIVE   POWER.  161 

§  96.    The  impairment  or  destruction  of  vested  rights  as  a  limita- 
tion. 

The  legislature  of  a  state  may  pass  laws  either  creating  public 
corporations,  regulating  and  controlling,  or  attempting  to  regu- 
late and  control  their  affairs,  dividing  their  boundaries,  providing 
for  the  disposition  of  their  revenues  and  the  manner  in  which 
taxes  shall  be  levied  and  collected,  such  laws  not  coming  within 
the  constitutional  objections  set  forth  in  the  preceding  paragraphs 
and  therefore  not  unconstitutional  and  void,  but  subject  to  funda- 
mental principles  of  law  and  if  violating  them  invalid  or  subject 
to  other  constitutional  provisions  relating  to  the  impairment  of 
contract  obligations  and  other  rights.88  The  control  of  the  sov- 
ereign, as  has  been  said,  is  full,  ample  and  supreme  over  public 
corporations,  but  the  existence  of  this  power  does  not  permit  even 
the  sovereign,  much  less  the  legislature,  its  agent,  to  impair  or 
destroy  contract,  property  and  vested  rights  owned  by  aliens  or 
citizens,  within  the  jurisdiction  of  the  state  and  protected  by 
fundamental  law.  In  short,  the  cases  hold  without  exception  that 
the  legislature  cannot  pass  a  law  affecting  either  the  creation,  life 
or  duties  of  a  public  corporation  which  in  effect  impairs  or  de- 
stroys the  right  of  a  creditor  of  that  corporation.  Creditors  pos- 
sess vested  rights  which  even  the  state,  controlled  by  constitu- 
tional limitations,  cannot  take  away.  Rights  of  this  character 
may  consist  of  a  remedy  given  by  the  state  to  enforce  the  collec- 

481;    Walter  v.  Town  of  Union,   33  ed  Dillon,  Mun.  Corp.  (4th  Ed.)  pp. 

N.  J.  Law,  350;  Harris  v.  People,  59  87-90. 

N.  Y.  599 ;   State  v.  Wright,  14  Or.        ss  Milner  v.  City  of  Pensacola,  2 

365;    Luehrman  v.   Taxing   Dist.   of  Woods,    632,    Fed.    Gas.    No.    9,619; 

Shelby   County,    70   Tenn.    (2   Lea)  Shapleigh  v.  City  of  San  Angelo,  167 

425.     See,  also,  the  following  cases  U.   S.   646;    People  v.   Burr,  13  Cal. 

holding  bills  unconstitutional  as  not  343;  Davidson  v.  City  of  New  York, 

complying  with   the  rule  stated  in  27  How.  Pr.    (N.  Y.)    342;    Wallace 

the  text.     Brieswick  v.  City  of  Bruns-  v.    Sharon   Tp.    Trustees,    84    N.    C. 

wick,  51  Ga.  639;  Ayeridge  v.  Town  164,   holds   contrary  to  the  general 

Com'rs  of  Social  Circle,  60  Ga.  404;  doctrine;    Morris  v.    State,   62   Tex. 

Village  of  Lockport  v.  Gaylord,   61  728.    In  Wade  v.  City  of  Richmond, 

111.  276;  Williamson  v.  City  of  Keo-  18  Grat.    (Va.)    583,  it  is  held  that 

kuk,    44    Iowa,   88;    City   of  Water-  the  annexation  of  territory  forming 

town   v.   Fairbanks,   65   N.   Y.   588;  a  part  of  a  county  to  an  adjoining 

Astor  v.   Arcade  R.   Co.,  113   N.   Y.  city  does  not  impair  the  obligation 

93;  Durkee  v.  City  of  Janesville,  26  of  a  contract  between  the  county  and 

Wis.  697.    See,  also,  many  cases  cit-  its  creditors. 

Abb.  Corp.— 11. 


162 


LEGISLATIVE   POWER. 


§   97 


tion  of  a  valid  obligation,89  or  it  may  be  a  means  provided  for 
the  payment  of  an  indebtedness  at  the  time  of  the  granting  of  the 
original  authority  to  incur  such  indebtedness,  a  corporate  power 
of  taxation  conferred,90  or  again  it  may  be  specific  property  or 
revenues  placed  at  the  disposal  of  the  creditor  under  certain  cir- 
cumstances and  conditions.91 

§  97.    Control  over  the  corporation  in  its  private  capacity. 

In  its  capacity  as  an  individual,  a  public  corporation  deals  with 
the  legislature  or  the  sovereign  upon  the  same  basis  of  equality 
as  a  private  person  or  corporation.  The  property,  of  whatever 
character,  which  it  may  acquire  and  hold,  is  acquired  and  held 
subject  to  all  the  rules  and  remedies  of  the  law  affecting  private 
property  and  interests.  The  legislature  can  no  more  arbitrarily 
pass  laws  affecting  these  interests  and  property  than  it  can  those 
of  private  individuals.92  As  recently  said,  "they  (the  courts)  are 


ss  Milner  v.  City  of  Pensacola,  2 
Woods,  632,  Fed.  Gas.  No.  9,619;  Ra- 
der  v.  Southeasterly  Road  Dist.  of 
Union,  36  N.  J.  Law,  273;  Ganson 
v.  City  of  Buffalo,  2  Abb.  Dec.  (N. 
Y.)  236;  Upper  Darby  Tp.  v.  Bor- 
ough of  Lansdowne,  174  Pa.  203. 
See,  also,  many  authorities  cited  in 
§  88. 

90  City  of  Covington  v.  Kentucky, 
173  U.  S.  231;  Devereaux  v.  City  of 
Brownsville,  29  Fed.  742;  Columbia 
County  Com'rs  v.  King,  13  Fla.  451. 
See  Palmer  v.  City  of  Danville,  166 
111.  42,  as  to  effect  of  change  in  man- 
ner of  levying  and  collecting  spe- 
cial tax  upon  right  of  contractor  for 
city  improvements;  Board  of  Edu- 
cation of  Hawesville  v.  Louisville, 
H.  &  St.  L.  R.  Co.,  110  Ky.  932,  C2 
S.  W.  1125;  Broadfoot  v.  City  of 
Fayetteville,  124  N.  C.  478;  Ladd  v. 
City  of  Portland,  32  Or.  271.  See, 
also,  authorities  cited  under  §  88. 

»i  Warner  v.  Hoagland,  51  N.  J. 
Law,  62,  16  Atl.  166;  Weekes  v. 
City  of  Galveston,  2  Tex.  Civ.  App. 
102,  51  S.  W.  544;  Smith  v.  City  of 


Appleton,  19  Wis.  468.  See,  also,  § 
88. 

82  Town  of  East  Hartford  v.  Hart- 
ford Bridge  Co.,  10  How.  (U.  S.) 
511;  Grogan  v.  City  of  San  Fran- 
cisco, 18  Cal.  590;  People  v.  City 
of  Chicago,  51  111.  17;  New  Orleans, 
M.  &  C.  R.  Co.  v.  City  of  New  Or- 
leans, 26  La.  Ann.  478. 

Police  Jury  of  Jefferson  Parish  v. 
McCormack,  32  La.  Ann.  624.  Here 
it  is  held  that  the  public  property 
of  a  parish  cannot  be  converted  into 
private  property  by  the  territorial 
division  of  the  parish. 

Proprietors  of  Mt.  Hope  Cemetery 
v.  City  of  Boston,  158  Mass.  509.  In 
the  opinion  given  by  Judge  Allen  it 
is  said  "by  a  quite  general  concur- 
rence of  opinion  this  legislative  pow- 
er of  control  is  not  universal  and 
does  not  extend  to  property  acquired 
by  a  city  or  town  for  special  pur- 
poses not  deemed  strictly  and  ex- 
clusively public  and  political  but  in 
respect  to  which  a  city  or  town  is 
deemed  rather  to  have  a  right  of 
private  ownership  of  which  it  can- 


§  97 


LEGISLATIVE   POWER. 


163 


also  more  and  more  recognizing  that,  from  the  point  of  view  of 
the  inviolable  private  rights  of  municipal  corporations,  these 
bodies  may  hold  property  as  private  in  character  and  therefore 
as  inviolable  in  character  by  any  governmental  action  as  the  prop- 
erty of  individuals.  It  is  indeed  true  that  this  position  has 
not  been  reached  without  considerable  reluctance."93  In  the 


not  be  deprived  against  its  will  save 
by  the  right  of  eminent  domain  with 
payment  of  compensation.  *  *  * 
The  conclusion  to  which  we  have 
come  is  that  the  cemetery  falls  with- 
in the  class  of  property  which  the 
city  owns  in  its  private  or  proprie- 
tary character  as  a  private  corpora- 
tion might  own  it  and  that  its  own- 
ership is  protected  under  the  con- 
stitutions of  Massachusetts  and  of 
the  United  States  so  that  the  legis- 
lature has  no  power  to  require  its 
transfer  without  compensation." 
Judge  Allen  also  says:  "The  city 
of  Boston  is  possessed  of  much  other 
property  which,  in  a  certain  sense, 
and  to  a  certain  extent,  is  held  for 
the  benefit  of  the  public,  but  in  other 
respects  is  held  more  like  the  prop- 
erty of  a  private  corporation.  Not- 
ably among  these  may  be  mentioned 
its  system  of  waterworks,  its  sys- 
tem of  parks,  its  markets,  its  hos- 
pital, and  its  library.  In  establish- 
ing all  of  these  the  city  has  not 
acted  strictly  as  an  agent  of  the 
state  government  for  the  accomplish- 
ment of  general  public  or  political 
purposes,  but  rather  with  special 
reference  to  the  benefit  of  its  own 
inhabitants.  If  its  cemetery  is  un- 
der legislative  control,  so  that  a 
transfer  of  it  without  compensation 
can  be  required,  it  is  not  easy  to 
see  why  the  other  properties  men- 
tioned are  not  also;  and  all  the  oth- 
er cities  and  towns  which  own  cem- 
eteries or  other  property  of  the  kinds 


mentioned  might  be  under  a  sim- 
ilar liability."  People  v.  Common 
Council  of  Detroit,  28  Mich.  228. 
In  this  case  it  is  intimated  that 
parks  are  in  the  nature  of  private 
property.  Spaulding  v.  Town  of 
Andover,  54  N.  H.  38,  56;  Benson 
v.  City  of  New  York,  10  Barb.  (N. 
Y.)  223;  Webb  v.  City  of  New  York, 
64  How.  Pr.  (N.  Y.)  10;  People  v. 
Ingersoll,  58  N.  Y.  1;  People  v. 
Fields,  58  N.  Y.  491;  Milam  County 
v.  Bateman,  54  Tex.  153;  Town  of 
Montpelier  v.  Town  of  East  Mont- 
pelier,  29  Vt.  12;  Town  of  Milwau- 
kee v.  City  of  Milwaukee,  12  Wis. 
93;  State  v.  Haben,  22  Wis.  660; 
State  v.  Schweickardt,  109  Mo.  496, 
19  S.  W.  47.  See,  also,  note  35  Am. 
St.  Rep.  529.  But  see  the  case  of 
David  v.  Portland  Water  Committee, 
14  Or.  98,  where  the  court  say,  "Pub- 
lic parks,  gas,  water  and  sewage  in 
towns  and  cities  may  ordinarily  be 
classed  as  private  affairs  but  they 
often  become  matters  of  public  im- 
portance and  when  the  legislature 
determines  that  there  is  a  public  ne- 
cessity for  their  use  in  a  certain 
locality,  I  do  not  think  they  can  be 
designated  as  mere  private  affairs; 
that  is  a  relative  question." 

ss  Darlington  v.  City  of  New  York, 
31  N.  Y.  164.  See,  also,  Terrett  v. 
Taylor,  9  Cranch  (U.  S.)  43,  52; 
Town  of  Pawlet  v.  Clark,  9  Cranch 
(U.  S.)  292;  and  the  authorities 
cited  under  §  87. 


164  LEGISLATIVE   POWER.  §   97 

opinion  of  Justice  Story  in  the  Dartmouth  College  Case,9*  he  says : 
"But  it  will  hardly  be  contended  that  even  in  respect  to  such 
(public)  corporations  the  legislative  power  is  so  transcendent 
that  it  may,  at  its  will,  take  away  the  private  property  of  the  cor- 
poration or  change  the  uses  of  its  private  funds  acquired  under 
the  public  faith.  Can  the  legislature  confiscate  to  its  own  use 
the  private  funds  which  a  municipal  corporation  holds  under  its 
charter  without  any  default  or  consent  of  the  corporators?  If 
a  municipal  corporation  be  capable  of  holding  devises  and  lega- 
cies to  charitable  uses,  *  *  *  does  the  legislature  under  our 
forms  of  limited  government  possess  the  authority  to  seize  upon 
those  funds  and  appropriate  them  to  other  uses  at  its  own  arbi- 
trary pleasure  against  the  will  of  the  donors  and  donees?" 

•*  Trustees  of  Dartmouth  Colleger.  Woodward,  4  Wheat.  (U.  S.)  518. 


CHAPTER  IV. 

CORPORATE  ELECTIONS. 

§     98.  Corporate  elections. 

99.  Notice. 

100.  Time  and  place  of  holding. 

101.  The  town  meeting;  its  powers. 

102.  Its  powers,  continued. 

103.  Purpose  for  which  held;  levy  of  taxes;  election  of  officers. 

104.  The  town  meeting;  right  and  authority  for  holding. 

105.  Officers  and  their  duties. 

106.  Voters  and  their  qualifications. 

107.  Miscellaneous  matters. 

§  98.    Corporate  elections. 

The  limits  of  this  work  will  not  permit  the  extended  discussion 
or  treatment  of  the  law  relating  to  general  elections.  This  is  a 
subject  of  sufficient  importance  to  warrant  an  extended  treatise. 
A  few  principles  of  law  and  cases  will  be  given  relating  to  the 
town  meeting  as  a  particular  form  of  election. 

That  discriminating  and  keen  observer,  De  Tocqueville,  ascribes 
the  success  of  American  political  institutions  and  ideas,  in  a  great 
measure,  to  the  existence  of  the  New  England  town  as  a  political 
organization  and  the  opportunity  afforded  each  individual  at  town 
meetings  to  participate  in  and  assume  the  exercise  of  govern- 
mental duties. 

In  his  opinion:  "Town-meetings  are  to  liberty  what  primary 
schools  are  to  science;  they  bring  it  within  the  people's  reach, 
they  teach  men  how  to  use  and  how  to  enjoy  it.  A  nation  may 
establish  a  free  government,  but  without  municipal  institutions, 
it  cannot  have  the  spirit  of  liberty." 

"The  township  of  New  England  possesses  two  advantages, 
which  strongly  excite  the  interest  of  mankind,  namely,  indepen- 
dence and  authority.  Its  sphere  is  limited,  indeed;  but  within 
that  sphere  its  action  is  unrestrained.  This  independence  alone 
gives  it  a  real  importance,  which  its  extent  and  population  would 
not  insure." 


166  CORPORATE  ELECTIONS.  §   98 

"The  New  Englander  is  attached  to  his  township,  not  so  much 
because  he  was  born  in  it,  but  because  it  is  a  free  and  strong 
community,  of  which  he  is  a  member,  and  which  deserves  the  care 
spent  in  managing  it.  In  Europe  the  absence  of  local  public  spirit 
is  a  frequent  subject  of  regret  to  those  who  are  in  power ;  every 
one  agrees  that  there  is  no  surer  guaranty  of  order  and  tran- 
quility,  and  yet  nothing  is  more  difficult  to  create." 

"The  township,  at  the  center  of  the  ordinary  relations  of  life, 
serves  as  a  field  for  the  desire  of  public  esteem,  the  want  of  ex- 
citing interest,  and  the  taste  for  authority  and  popularity;  and 
the  passions  which  commonly  embroil  society  change  their  char- 
acter, when  they  find  a  vent  so  near  the  domestic  hearth  and  the 
family  circle." 

"The  native  of  New  England  is  attached  to  his  township  be- 
cause it  is  independent  and  free;  his  co-operation  in  its  affairs 
insures  his  attachment  to  its  interest;  the  well-being  it  affords 
him  secures  his  affection ;  and  its  welfare  is  the  aim  of  his  ambi- 
tion and  of  his  future  exertions.  He  takes  a  part  in  every  occur- 
rence in  the  place;  he  practices  the  art  of  government  in  the 
small  sphere  within  his  reach;  he  accustoms  himself  to  those 
forms  without  which  liberty  can  only  advance  by  revolutions; 
he  imbibes  their  spirit;  he  acquires  a  taste  for  order,  compre- 
hends the  balance  of  powers,  and  collects  clear  practical  notions 
on  the  nature  of  his  duties  and  the  extent  of  his  rights. ' n 

This  particular  form  of  public  quasi  corporation  is  the  favorite 
model  for  all  governmental  agencies  intended  to  effect  the  same 
results.  The  idea  embodied  is  local  self-government;  the  right 
of  the  people  residing  within  a  certain  locality  to  meet,  discuss 
and  supply  their  wants,  controlled  only  by  the  state.  In  some 
localities  the  agency  employed  for  attaining  the  highest  develop- 
ment of  local  self-government  is  the  New  England  town,  com- 
monly so-called,  first  adopted  in  New  England,  hence  its  name. 
It  has  spread  to  all  those  parts  of  the  United  States  settled  and 
dominated  by  New  England  ideas.  In  other  parts  of  the  country 
the  form  of  the  organization  intended  to  accomplish  the  same 
purpose  is  what  is  known  as  the  county  or  shire.  The  agency, 
however,  is  immaterial.  All  forms  of  public  corporations,  in- 
cluding municipal,  have  for  their  purpose,  their  sole  object,  the 

i  De    Tocqueville,     Democracy    inAmerica,  c.  5. 


§   99  CORPORATE  ELECTIONS.  1(,7 

better  government  of  the  people  within  a  certain  locality.  It 
may  not  be  out  of  place  at  this  time  to  say  that  distinctions  and 
differences  have  been  drawn,  or  attempted,  as  between  the  differ- 
ent grades  of  public  corporations.  Such  distinctions  and  differ- 
ences exist,  however,  only  as  based  upon  the  relative  destiny  of 
population  of  certain  localities.  They  are  all  agencies  of  the 
government,  administering  public  affairs,  exercising  governmen- 
tal duties,  each  differently  and  in  the  manner  best  calculated  to 
effect  the  end  or  the  purpose  for  which  they  exist.  The  more 
frequent  exercise  of  a  power  does  not  change  its  quality  or  char- 
acter. A  confusion  of  ideas  necessarily  follows  a  multiplication 
of  differences  and  distinctions  which  do  not  exist  except  in  the 
cunning  minds  of  theorists. 

The  town  meeting,  the  representative  assembly  or  election  of 
the  town,  is  nothing  more  nor  less  than  the  meeting,  at  the  time 
designated  by  law,  of  all  the  qualified  voters  of  the  town  at  a 
public  place,  to  elect  officers  for  the  ensuing  year  and  to  discuss 
and  take  action  upon  measures  looking  to  their  greater  conveni- 
ence and  better  government.2 

§  99.    Notice. 

That  this  meeting  be  legal,  independent  of  statutory  provisions, 
it  is  necessary  that  those  entitled  to  assemble  and  participate  in 
its  deliberations  should  have  notice.3 

In  England  the  courts  apply  the  rule  that  if  all  the  corporators 
are  present,  notice  may  be  dispensed  with  by  unanimous  con- 
sent.4 But  in  New  England,  even  though  all  are  present  at  the 
town  meeting,  in  the  absence  of  notice,  it  is  not  valid,  and  all  acts 
performed  are  void.6  The  form  of  notice  is  immaterial,  unless 
prescribed  by  law,  so  long  as  the  result  to  be  accomplished  is 
effected.6  It  is  necessary  that  the  notice  should  direct  attention 

2  See  interesting  discussion  on  lo-  B  Hayward  v.  School  Dist.  No.  13, 

cal  self-government  in  Andrews'  56  Mass.  (2  Gush.)  419;  Brewster 

American  Law,  §§  452  et  seq.  v.  Hyde,  7  N.  H.  206. 

s  Reynolds  v.  Inhabitants  of  New  e  Baldwin  v.  North  Branford,  32 

Salem,  47  Mass.  (6  Mete.)  340;  Conn.  47;  Colman  v.  Anderson,  10 

Pratt  v.  Town  of  Swanton,  15  Vt.  Mass.  105,  and  Inhabitants  of  Bucks- 

147;  Hubbard  v.  Town  of  Williams-  port  v.  Spofford,  12  Me.  487,  hold 

town,  61  Wis.  397;  McVichie  v.  Town  seals  of  selectmen  calling  the  town 

of  Knight,  82  Wis.  137.  meeting  not  essential  to  the  valid- 

*  Rex  v.  Theodorick,  8  East,  545.  ity  of  the  warrant.     Cragie  v.  Mel- 


168 


CORPORATE  ELECTIONS. 


99 


to  particular  business  to  be  transacted  at  the  meeting  called,  and 
the  powers  of  the  town  are  limited  strictly,  except  as  authorized 
by  statute,  to  the  matters  included  within  the  notice.7  But  the 
rule  also  obtains  that  the  notice  or  warrant  for  a  town  meeting 
need  only  state  with  reasonable  certainty  the  matters  of  business 
to  be  acted  upon  at  the  meeting  called.8  The  time  and  place  of 
meeting  should  be  definitely  stated  in  the  notice.9  This  notice 
may  be  served  either  by  posting,10  at  the  place  provided  by  law 


len,  6  Mass.  7;  Reynolds  v.  Inhabi- 
tants of  New  Salem,  47  Mass.  (6 
Mete.)  340;  Wheeler  v.  Carter,  180 
Mass.  382,  62  N.  E.  471.  In  Mc- 
Vichie  v.  Town  of  Knight,  82  Wis. 
137,  a  notice  was  held  insufficient 
signed  by'  a  name  without  any  offi- 
cial designation  and  nothing  in  it 
to  show  the  official  character  of  the 
person  so  signing. 

7  Town  of  Bloomfleld  v.  Charter 
OaK  Bank,  121  U.  S.  121;  Willard  v. 
Borough  of  Killingworth,  8  Conn. 
247;  Woodward  v.  Reynolds,  58 
Conn.  486;  Evans  v.  Osgood,  18  Me. 
213;  Inhabitants  of  Cornish  v.  Pease, 
19  Me.  184;  Austin  v.  Inhabitants 
of  York,  57  Me.  304;  Drisko  v.  In- 
habitants of  Columbia,  75  Me.  73; 
Wood  v.  Inhabitants  of  Quincy,  65 
Mass.  (11  Gush.)  487;  Brackett  v. 
Whidden,  3  N.  H.  17. 

s  Bull  v.  Town  of  Warren,  36  Conn. 
83;  Davenport  v.  Inhabitants  of  Hal- 
lowell,  10  Me.  317;  Deane  v.  Wash- 
burn,  17  Me.  100;  Belfast  &  M.  L. 
R.  Co.  v.  Inhabitants  of  Brooks,  60 
Me.  568;  Brown  v.  Inhabitants  of 
Winterport,  79  Me.  305;  Blackburn 
v.  Inhabitants  of  Walpole,  26  Mass. 
(9  Pick.)  97;  Alden  v.  Rounseville, 
48  Mass.  (7  Mete.)  218;  Fuller  v.  In- 
habitants of  Groten,  77  Mass.  (11 
Gray)  340;  Sherman  v.  Torrey,  99 
Mass.  472;  Inhabitants  of  Westhamp- 
ton  v.  Searle,  127  Mass.  502;  Com. 
v.  Wentworth,  145  Mass.  50;  Smith 
v.  Crittenden,  16  Mich.  152;  Tucker 


v.  Aiken,  7  N.  H.  385;  Town  of 
Pittsburg  v.  Davenport,  56  N.  H. 
272;  Marden  v.  Champlin,  17  R.  I. 
423;  Ovitt  v.  Chase,  37  Vt.  196; 
Kittredge  v.  Town  of  Walden,  40 
Vt.  211;  Wyley  v.  Wilson,  44  Vt. 
404. 

9  Chamberlain    v.    Inhabitants    of 
Dover,    13    Me.    466;    Brown    v.    In- 
habitants of  Winterport,  79  Me.  305; 
Sherwin  v.  Bugbee,  16  Vt.  439.    "We 
have  no  doubt  the  place  of  holding 
the  meeting  must  be  definitely  speci- 
fied.    It  would   hardly   do   to   warn 
a  meeting  to  be  held  at  some  place 
in  the   district,  or   at  a  designated 
village,   or  at  one   of  two   or  more 
dwelling-houses.     So,  too,  in  regard 
to   time,  there   seems  to   be  a  pro- 
priety in  having  it  definitely  fixed. 
If  the  day,  only,  is  named,  the  ques- 
tion   immediately   arises,    shall    the 
inhabitants    be    required    to    attend 
the   whole    day?    or   when    can    the 
meeting   transact    the   business    for 
which  they  meet,  so  as  to  bind  the 
absent  members?    *     *     *    The  fact 
that  the   meeting  adjourned  to   an- 
other day  and  hour  will  not  help  the 
matter,  on  the  obvious  principle  that 
the   adjourned   meeting   could   have 
no  more  authority  than  the  original 
meeting,  which  was  void."    State  v. 
Davidson,    32    Wis.    114;     State    v. 
Waterbury,    79    Wis.    207;    State   v. 
Dcyle,   84  Wis.   678. 

10  Tompson   v.   Mussey,   3   Me.    (3 
Greenl.)   305;   Brown  v.  Witham,  51 


§  99 


CORPORATE  ELECTIONS. 


169 


or  by-law  of  the  town,11  publication,  or  personal  service12  upon 
the  qualified  voters  of  the  town,  and  this  should  be  done  for  the 
length  of  time,  before  the  meeting,  fixed  by  law.13  Where  the 
statute  requires  the  time  and  place  of  meeting  to  be  stated  in  the 
notice,  a  strict  compliance  with  the  law  is  necessary,  otherwise 
there  can  be  no  legal  liability  based  upon  action  taken  at  the 
meeting  when  held.14  Record  of  the  time  and  manner  of  the 
giving  of  this  notice,  and  its  substance,  should  be  kept  by  the 
town  clerk  or  clerical  officer,16  and  this  record  is  prima  facie  evi- 
dence of  the  sufficiency  and  legality  of  the  acts  recited.16  The 
return,  on  the  warrant  or  notice  calling  the  town  or  parish  meet- 
ing, of  the  officer  designated  by  law,  it  is  held,  is  the  only  proper 
evidence  that  the  meeting  was  legally  warned.  If  this  return  is 
defective,  parol  evidence  is  not  admissible  to  remedy  the  defect,17 


Me.  29;  Parker  v.  Titcomb,  82  Me. 
180;  Beals  v.  James,  173  Mass.  591; 
Norris  v.  Eaton,  7  N.  H.  284;  Brew- 
ster  v.  Hyde,  7  N.  H.  206. 

11  In  Com.  v.  Sullivan,  165  Mass. 
183,  posting  at  the  place  where  the 
meeting  was  to  be  held  was  held  to 
sufficiently  comply  with  the  by-law 
of  the  town  requiring  notice  of  the 
town   meeting  to   be  posted   at  the 
town    hall,     that    building    having 
burned   down.     Briggs  v.   Murdock, 
30  Mass.   (13  Pick.)   305;    Scammon 
v.  Scammon,  28  N.  H.  429;  Stoddard 
v.  Oilman,  22  Vt.  568. 

12  Beals  v.  James,  173  Mass.  591 ; 
Wood  v.  Qufmby,  20  R.  I.  482. 

is  Brooklyn  Trust  Co.  v.  Town  of 
Hebron,  51  Conn.  22 ;  People  v.  Trus- 
tees of  Fairbury,  51  111.  149;  Ward- 
ens of  Christ  Church  v.  Woodward, 
26  Me.  172;  Jones  v.  Sanford,  66  Me. 
585;  Gerry  v.  Herrick,  87  Me.  219; 
Williams  v.  Inhabitants  of  School 
Dist.  No.  1,  in  Lunenburg,  38  Mass. 
(21  Pick.)  75;  Rand  v.  Wilder,  65 
Mass.  (11  Cush.)  294;  Com.  v.  Shaw, 
48  Mass.  (7  Mete.)  52;  Locke  v.  Se- 
lectmen of  Lexington,  122  Mass.  290; 
Osgood  v.  Blake,  21  N.  H.  550;  Pratt 


v.  Town  of  Swanton,  15  Vt.  147; 
Hubbard  v.  Town  of  Williamstown, 
61  Wis.  397;  McVlchie  v.  Town  of 
Knight,  82  Wis.  137. 

i*  Chamberlain  v.  Inhabitants  of 
Dover,  13  Me.  466;  Haines  v.  School 
Dist.  No.  6,  in  Readfield,  41  Me.  246; 
Kingsbury  v.  Centre  School  Dist.  in 
Quincy,  53  Mass.  (12  Mete.)  99; 
Sherwin  v.  Bugbee,  16  Vt.  439. 

"Bearce  v.  Fossett,  34  Me.  575; 
Allen  v.  Archer,  49  Me.  346;  Brown 
v.  Witham,  51  Me.  29;  Hamilton  v. 
Inhabitants  of  Phipsburg,  55  Me. 
193;  Com.  v.  Shaw,  48  Mass.  (7 
Mete.)  52;  Town  of  Lemington  v. 
Blodgett,  37  Vt.  215.  State  v.  Town 
of  Decatur  Sup'rs,  58  Wis.  291,  holds 
the  recording  of  a  request  for  spe- 
cial town  meeting  merely  directory, 
and  that  proceedings  will  not  be  in- 
validated by  the  failure  of  the  town 
clerk  to  do  so. 

i«  Isbell  v.  New  York  &  N.  H.  R. 
Co.,  25  Conn.  556;  Evarts  v.  Killing- 
worth,  20  Conn.  457. 

17  Tuttle  v.  Gary,  7  Me.  426;  Hough- 
ton  v.  Davenport,  40  Mass.  (23  Pick.) 
235;  State  v.  Williams,  25  Me.  561; 
Wardens  of  Christ  Church  v.  Wood- 


170 


CORPORATE  ELECTIONS. 


100 


but  amendments  to  this  return,  so  it  is  held,  can  be  made  any 
time  by  the  officer  while  he  continues  in  office.18  A  return  if  de- 
fective, unless  amended,  establishes  the  illegality  of  the  meet- 
ing,19 and  is  conclusive  evidence,  in  collateral  proceedings,  of  the 
facts  recited.20  The  notice  or  warrant  required  by  law  is  usually 
signed  by  the  selectmen  of  the  town,  but  provision  may  be  made, 
in  case  of  their  refusal,  for  the  signatures  of  legal  voters.21 

§  100.    Time  and  place  of  holding. 

A  town  meeting  should  be  held  at  the  time  fixed  in  the  war- 
rant to  render  action  taken  at  such  meeting  valid.22 

In  England  the  time  and  place  of  holding  meetings  is  regulated 
by  express  provision  in  the  municipal  corporations  act.23  The 
hours  of  holding  may  be  designated  by  statute,  and  the  meeting 
must  be  held  at  the  hour  or  within  the  hours  so  specified.  If 
no  statutory  provision  is  made  for  the  time  of  holding  a  special 
or  an  adjourned  meeting,  the  hour  fixed  in  the  notice  controls,24 
and  action  taken  at  a  meeting  thus  held  will  be  binding  upon  the 


ward,  26  Me.  172;  Briggs  v.  Mur- 
dock,  30  Mass.  (13  Pick.)  305;  Com. 
v.  Shaw,  48  Mass.  (7  Mete.)  52; 
Proprietors  of  Cardigan  v.  Page,  6 
N.  H.  182;  Nelson  v.  Pierce,  6  N.  H. 
194.  But  see  contra,  Ford  v.  Clough, 
8  Me.  334. 

i»  Kellar  v.  Savage,  17  Me.  444; 
Thayer  v.  Stearns,  18  Mass.  (1  Pick.) 
109. 

isCottrill  v.  Myrick,  12  Me.  222; 
State  v.  Williams,  25  Me.  561;  Ward- 
ens of  Christ  Church  v.  Woodward, 
26  Me.  172;  Fossett  v.  Bearce,  29  Me. 
523;  Bearce  v.  Fossett,  34  Me.  575; 
Hamilton  v.  Inhabitants  of  Phips- 
burg,  55  Me.  193;  Williams  v.  In- 
habitants of  School  Dist.  No.  1,  in 
Lunenburg,  38  Mass.  (21  Pick.)  75; 
Nelson  v.  Pierce,  6  N.  H.  194.  The 
Massachusetts  cases,  however,  seem 
to  permit  greater  informality  in  the 
making  of  a  return  without  holding 
it  sufficient  to  invalidate  the  meet- 
ing as  called.  See  Briggs  v.  Mur- 


dock,  30  Mass.  (13  Pick.)  305; 
Houghton  v.  Davenport,  40  Mass. 
(23  Pick.)  235;  Com.  v.  Shaw,  48 
Mass.  (7  Mete.)  52,  and  Rand  v. 
Wilder,  65  Mass.  (11  Gush.)  294. 

20  Tuttle  v.  Gary,  7  Me.  (7  Greenl.) 
426;     Saxton    v.    Nimms,    14    Mass. 
315;     Proprietors    of     Cardigan    v. 
Page,  6  N.  H.  182;   Schoff  v.  Gould, 
52  N.  H.  512. 

21  Southard     v.      Inhabitants      of 
Bradford,    53    Me.    389;    Fletcher   v. 
Inhabitants   of  'Lincolnville,   20   Me. 
439. 

--  Chamberlain  v.  Inhabitants  of 
Dover,  13  Me.  466;  People  v.  Board 
of  Audit  of  Hempstead,  4  Hun  (N. 
Y.)  95;  People  v.  Martin,  5  N.  Y. 
(1  Seld.)  22. 

235  &  6  Wm.  IV,  c.  76,  §§  69  et 
seq. 

2*  Burnham  v.  Rogers,  167  Mo. 
17,  66  S.  W.  970;  Goodel  v.  Baker, 
8  Cow.  (N.  Y.)  286;  People  v.  Aus- 
tin, 20  App.  Div.  1,  46  N.  Y.  Supp. 


§  101 


CORPORATE  ELECTIONS. 


171 


corporation.     This  is  true  of  annual  meetings  where  no  statutory 
provision  fixes  the  exact  time  at  which  they  shall  be  held.25 

The  meeting  must  also  be  held  at  the  place  designated.  If  there 
are  statutory  provisions  fixing  the  place  and  regulating  the  man- 
ner of  conducting  the  meeting,  these  must  be  followed.26  If, 
however,  there  are  no  provisions  either  in  the  statute  or  the  by- 
laws of  the  town,  or  if  the  matter  is  left  discretionary  with  cer- 
tain officers,  the  place  as  fixed  by  such  officers  will  govern,  and  a 
meeting  there  held  pursuant  to  notice  will  not  be  considered  in- 
valid.27 The  officers  in  charge  of  the  meeting  may,  when  au- 
thorized by  statute,  adjourn  the  same  to  a  time  and  at  a  place 
designated.  This  power  of  adjournment  may  be  discretionary 
or  incidental.28 

§  101.    The  town  meeting;  its  powers. 

The  town  meeting  being  practically  the  legislative  forum  of 
the  qualified  voters  of  the  town,  it  follows  that  it  can  be  called 
only  for  the  purpose  of  passing  upon  such  matters  as  may  be  au- 
thorized by  law.29  The  governmental  agent  holding  the  meeting 


526;   State  v.  Racine  County  Sup'rs, 
70  Wis.   543. 

25  State    v.    Hoff,    88     Tex.    297; 
Mitchell  v.  Tolan,  33  N.  J.  Law,  195. 

26  Chamberlain   v.    Inhabitants    of 
Dover,    13    Me.    466;    Brown   v.    In- 
habitants of  Winterport,  79  Me.  305; 
Auditor  General  v.  Duluth,  S.  S.  & 
A.  R.  Co.,   116  Mich.  122;    State  v. 
Davidson,    32    Wis.    114;     State    v. 
Waterbury,   79   Wis.   207;    McVichie 
v.    Town    of    Knight,    82    Wis.    137; 
State  v.  Doyle,  84  Wis.  678. 

27  Chamberlain   v.    Inhabitants   of 
Dover,   13   Me.    466.      Here   a   town 
meeting    was     called    at    a    school 
house.    The  clerk  with  a  few  others 
met  in  the  street  opposite  the  school 
house,  half  an  hour  after  the  time 
appointed,  read  the  warrant  and  ad- 
journed to  a  store  a  mile  distant  on 
the  borders  of  the  town,  leaving  no 
notice  of   this   adjournment  at  the 
school  house.     Action  taken  at  this 


adjourned    meeting    was    not    held 
binding  on  the  town. 

28  Chamberlain   v.    Inhabitants   of 
Dover,   13   Me.   466;    Inhabitants   of 
Canton  v.  Smith,  65  Me.  203;   Reed 
v.   Inhabitants  of  Acton,   117  Mass. 
384;    Goodel  v.   Baker,   8   Cow.    (N. 
Y.)    286.     In  Hark  v.  Gladwell,   49 
Wis.  177,  the  court  said  in  speaking 
of  this  subject:     "It  will  not  do  to 
apply  to  the  orders  and  resolutions 
of    such    bodies    nice    verbal    criti- 
cism  and  strict  parliamentary   dis- 
tinctions,   because    the    business    is 
transacted   generally  by   plain   men 
not  familiar  with  parliamentary  law. 
Therefore    their    proceedings    must 
be   liberally   construed   in   order   to 
get  at  the  real  intent  and  meaning 
of   the  body."     Wisconsin  Cent.  R. 
Co.  v.  Ashland  County,  81  Wis.  1. 

29  Crittenden     v.     Robertson,     13 
Mich.    58;    Schoff    v.    Bloomfleld,    8 
Vt.  472:  the  town  authorized  in  this 


172 


CORPORATE  ELECTIONS. 


§   101 


is  directed  or  permitted  by  the  sovereign  to  administer  certain 
public  affairs  and  exercise  certain  powers  looking  to  its  own  local 
government  and  benefit  as  well  as  the  benefit  and  advantage  of 
the  community  at  large.  Action  taken  at  such  meeting  upon 
business  not  authorized  will  be  clearly  invalid.80 

The  law  goes  further  and  requires  that  action  at  a  meeting,  to 
be  valid,  must  be  taken  pursuant  to  the  warrant  or  notice  calling 
it,  which  shall  state  with  reasonable  certainty,  as  already  sug- 
gested,31 the  matters  of  business  expected  to  be  considered  at  such 
meeting.32  It  need  not  state  all  subjects  to  be  considered  where 
by  usage  or  custom  certain  questions  are  discussed,  considered 


case  to  act  upon  matters  other  than 
those  mentioned  in  the  warrant 
calling  the  meeting.  Bradley  v. 
Town  of  Hammonton,  38  N.  J,  Law, 
430.  This  case  holds  that  under  the 
provisions  of  New  Jersey  Act  of 
April  4,  1871,  the  town  may  in- 
demnify its  officers  out  of  town 
monies  for  reasonable  expenses  in- 
curred by  them  in  a  bona  fide  dis- 
charge of  their  duties.  See,  also, 
authorities  cited  under  §  99,  note  7. 

so  Inhabitants  of  Cornish  v.  Pease, 
19  Me.  184;  Kean  v.  Stetson,  22 
Mass.  (5  Pick.)  492;  Wharton  v. 
Roster,  38  N.  J.  Law,  308;  Atwood 
v.  Lincoln,  44  Vt.  332.  A  town  not 
authorized  to  borrow  money  for  the 
purpose  of  paying  bounties,  when 
the  warrant  for  the  town  meeting 
read  "to  see  if  the  town  will  vote 
a  tax  to  pay  a  bounty."  See,  also, 
authorities  cited  §  99,  note  8. 

si  See  authorities  cited,  §  99,  note 
8. 

»2  Bull  v.  Town  of  Warren,  36 
Conn.  83;  Belfast  &  M.  L.  R.  Co.  v. 
Inhabitants  of  Brooks,  60  Me.  568; 
Drisko  v.  Inhabitants  of  Colum- 
bia, 75  Me.  73;  Blackburn  v.  In- 
habitants of  Walpole,  26  Mass.  (9 
Pick.)  97;  Torrey  v.  Millbury,  38 
Mass.  (21  Pick.)  64.  The  warrant 


in  this  case  called  a  meeting  "to 
see  if  the  town  would  make  an  ap- 
propriation towards  purchasing  a 
fire  engine."  It  was  held  that  the 
tcwn  under  this  warrant  was  au- 
thorized to  pass  a  vote  "to  raise 
an  appropriate  amount"  for  that 
purpose. 

Avery  v.  Stewart,  55  Mass.  (1 
Gush.)  496.  Wood  v.  Inhabitants 
of  Quincy,  65  Mass.  (11  Gush.)  487. 
Here  a  town  was  not  authorized  to 
discontinue  a  portion  of  a  town  way 
and  set  off  the  land  to  a  private  in- 
dividual when  the  warrant  for  the 
meeting  recited  as  one  of  its  pur- 
poses to  "choose  a  committee  or  to 
hear  and  act  upon  the  report  of 
any  committee  the  town  may  think 
proper  when  assembled."  Hadsell 
v.  Inhabitants  of  Hancock,  69  Mass. 
(3  Gray)  526;  Smith  v.  Abington 
Sav.  Bank,  171  Mass.  178;  Kittredge 
v.  Inhabitants  of  North  Brookfield, 
138  Mass.  286;  Tucker  v.  Aiken,  7 
N.  H.  113;  Pittsburg  v.  Danforth,  56 
N.  H.  272;  Birge  T.  Berlin  Iron 
Bridge  Co.,  62  Hun,  618,  16  N.  Y. 
Supp.  596;  Town  of  Oyster  Bay  v. 
Harris,  21  App.  Div.  227,  47  N.  Y. 
Supp.  510;  Smith  v.  Town  of  West- 
erly, 19  R,  I.  437;  Alger  v.  Curry,  40 
Vt  437. 


§    102  CORPORATE  ELECTIONS.  173 

and  passed  upon  without  such  notice,  or  where  certain  action 
has  been  taken  for  some  time  past  under  a  special  wording  in 
the  warrant.33  But  unless  questions  are  by  usage  or  custom  thus 
entitled  to  be  considered  at  a  town  meeting,  it  is  necessary  that 
the  warrant  calling  the  meeting  should  distinctly  and  separately 
specify  them.  The  purpose  of  the  meeting  must  be  brought  to 
the  attention  of  all  who  will  be  affected  by  its  action  or  who  are 
entitled  to  take  part  in  the  proceedings.  This  last  rule  is  un- 
qualifiedly true  where  the  statutes  provide  that  the  warrant  or 
notice  calling  the  meeting  shall  contain  a  statement  of  the  busi- 
ness to  be  considered.3* 

§  102.    Its  powers,  continued. 

In  the  preceding  section,  the  authority  of  the  town  meeting  to 
pass  upon  and  take  action  regarding  matters  not  included  in  the 
warrant  or  notice  has  been  discussed.  Further  illustrations  will 
be  given  in  this  section  of  the  controlling  principles  there  stated. 
Except  where  governed  by  usage,  custom  or  statute,  the  town 
meeting  has  no  authority  to  take  action  regarding  matters  not 
named  or  specified  in  the  warrant  calling  the  meeting.  Under 
this  rule  it  was  held  in  a  Connecticut  case  that  a  vote  of  the  town 
limiting  the  right  of  fishing  in  a  free  and  common  fishery  was 
void  unless  the  meeting  at  which  such  vote  was  passed  was  spe- 
cially warned  for  that  purpose,  and  it  was  also  held  in  this  case 
that  the  burden  was  upon  the  one  seeking  to  avail  himself  of  the 
benefits  of  such  action.36 

as  Davenport     v.     Inhabitants     of  town  aid   to   railroads   need  not  be 

Hallowell,  10  Me.  317;  Kingsbury  v.  noticed   in   the   warrant   calling  an 

Centre   School    Dist.   in   Quincy,   53  election  to  vote  such  aid. 
Mass.    (12  Mete.)    99;    Fuller  v.   In-        Inhabitants    of   Ludlow   v.    Sikes, 

habitants  of   Groton,   77    Mass.    (11  36   Mass.    (19    Pick.)    317;    Passage 

Gray)   340:     The  town  was  author-  v.    School    Inspectors    of    Williams- 

ized  in  this  case  to  vote  a  sum  of  town,  19  Mich.  330,  held  true  as  to 

money  recommended  by  a  committee  a    meeting   of   board    of    school    in- 

previously  appointed  under  a  call  in  spectors;  Brackett  v.  Whidden,  3  N. 

the  warrant  "to  hear  the  report  of  H.  17;    Marden  v.  Champlin,   17  R. 

any     committee    heretofore    chosen  I.  423,  22  Atl.  938;   Smith  v.  Town 

and  pass  any  vote  in  relation  to  the  of  Westerly,  19  R.  J.  437. 
same."  35  Hayden  v.  Noyes,  5  Conn.  391; 

»*Pinney  v.  Brown,  60  Conn.  164;  Willard  v.  Borough  of  Killingworth, 

Inhabitants  of  Canton  v.  Smith,  65  8    Conn.    247.     In   speaking   of   the 

Me.  203.     A  public  act  authorizing  doctrine  as   stated   in   the  text   the 


174  CORPORATE  ELECTIONS.  g   103 

Authority  given  at  a  meeting  for  the  accomplishment  of  cer- 
tain results  is  not  exhausted  by  a  single  vote  raising  an  insuffi- 
cient amount.  This  sum  can  be  increased  by  successive  votes  at 
adjourned  meetings  until  sufficient  is  raised  to  effect  the  desired 
result.36 

An  article  in  a  warrant  for  a  town  meeting  "to  see  what  meas- 
ures the  town  will  take  to  build  a  certain  bridge,  or  in  matters 
and  things  relating  thereto,"  was  held  sufficient  to  authorize  the 
raising  of  money  for  that  purpose.37 

A  town  meeting  has  the  inherent  power  to  elect  officers  to  di- 
rect its  proceedings  in  case  of  the  absence  or  inability  of  those 
already  elected  to  perform  those  duties.38 

§  103.    Purpose  for  which  held;  levy  of  taxes ;  election  of  officers. 

Action  can  be  taken,  at  a  town  meeting  levying  taxes  and  pro- 
viding for  the  expenditure  during  the  ensuing  year,  of  moneys 
thus  raised.  The  appropriations  for  town  purposes  must  be  pub- 
lic in  their  character.  It  is  not  necessary  in  the  authority  for 
the  levying  of  certain  taxes  to  meet  annual  expenditures  author- 
ized by  law  that  a  specific  appropriation  should  be  made  for  each 
purpose.  It  has  been  held  that  a  vote  to  raise  a  certain  sum  for 
the  expenditures  of  the  current  year  is  sufficient.39 

court  in  this  case  says:     "This  doc-  ings  of  the  town   in  this  case,   nor 

trine  I  am  inclined  to  adopt  as  be-  from  any  proof  aliunde  to  establish 

ing   reasonable   and    in   analogy   to  the  fact,  the  judgment  is  erroneous, 

general  principles  which  govern  such  Perhaps  it  should  appear  on  the  face 

questions.      The    borough    and    the  of  the  proceedings;   but  at  least  he 

town   are   confessedly   inferior    cor-  who  seeks  to  enforce  the  act  should 

porations.     They  act  not  by  any  in-  prove   such   warning   to   have    been 

herent  right  of  legislation,  like  the  given." 

legislature   of   the   state;    but   their  se  Farrar  v.  Perley,  7  Me.  404. 

authority    is    delegated    and    their  37  Ford  v.  Clough,  8  Me.  (8  Greenl.) 

powers    must    therefore    be   strictly  334.     See,  also,   Osgood   v.   Bradley, 

pursued.    Within  the  limits  of  their  7   Me.    (7   Greenl.)    411;    Jewett   v. 

charter  their  acts  are  valid;    with-  Burroughs,  15  Mass.  464. 

out  it  they  are  void.    It  having  been  ss  Kellar  v.    Savage,   17   Me.   444; 

established  in  the  case  of  Hayden  v.  Attorney   General    v.    Simonds,    111 

Noyes,  5  Conn.  391,  that  to  render  Mass.     256;     Attorney     General     v. 

an  act  of  the  town  precisely  of  this  Crocker,   138   Mass.   214;    Tucker  v. 

character  valid  it  must  appear  that  Aiken,  7  N.  H.  113;   State  v.  Town 

the  meeting  of  the  town  had  been  of  Vershire,  52  Vt.  41.     If  a  person 

specially  warned  for  that  purpose;  is    permitted    to   act   as    moderator 

and  this   not  appearing  on  the  do-  without  objection  on  the  part  of  th« 


§    104  CORPORATE  ELECTIONS.  175 

Another  authorized  and  legal  purpose  for  which  a  town  meet- 
ing can  be  held  is  the  election  of  town  officers  for  the  coming 
year.  The  administration  of  the  government  of  the  town  is 
placed  in  the  hands  of  certain  officials  or  agents  who  represent 
the  corporation.40  They  act  for  and  bind  the  town  by  their  ac- 
tion. The  officers  to  be  elected  are  usually  designated  by  law, 
as  well  as  the  manner  of  their  election.41  If,  however,  the  stat- 
utes do  not  provide  for  the  precise  manner  in  which  they  shall 
be  elected,  usage  or  custom  prevails.  It  has  been  held  in  Iowa 
that  the  word  "election"  in  the  constitution  which  requires  "that 
all  elections  by  the  people  shall  be  by  ballot"  has  no  application 
to  meetings  of  electors  of  a  township.42  As  a  rule  the  authority 
of  officers  elected  at  town  meetings  will  be  upheld  and  their  ac- 
tion sustained.  The  fact  that  the  warrant  or  notice  calling  the 
meeting  may  be  imperfect  is  generally  held  insufficient  to  sus- 
tain a  collateral  attack  upon  de  facto  officers  or  their  acts  done  in 
an  official  capacity.48 

§  104.    The  town  meeting;  right  and  authority  for  holding. 

The  town  meeting  is  one  of  the  essential  characteristics  per- 

voters,  the  legality  of  the  meeting  quiring  towns  to  make  such  appro- 

cannot   be   subsequently    raised    be-  priations  specific  and  keep  them  dis- 

cause  of  this  fact.  tinct." 

39  Tucker  v.  Aiken,  7  N.  H.  113.  *»  Craig  v.  Scandret,  8  Ky.    (1  A. 

Here    the    court    said:     "This    is    a  K.  Marsh.)   15;  Wood  v.  Jewell,  130 

convenient  mode  of  ascertaining  the  Mass.  270;   Com.  v.  Wentworth,  145 

whole  amount  necessary  to  be  raised,  Mass.     50 ;     Kingsbury     v.     Centre 

as   estimates   are   usually   made    of  School    Dist.    in    Quincy,    53    Mass, 

the  amount  which  each  of  such  ob-  (12  Mete.)   99;    Baker  v.  Shephard, 

jects  is  likely  to  require.     But  ex-  24  N.  H.   (4  Fost.)  208. 

cepting  the  money  raised  for  schools  «  Damon  v.  Inhabitants  of  Gran- 

and  highways  it  is  not  known  that  by,  19  Mass.   (2  Pick.)    345;   Kincs- 

it  has  ever  been  the  practice  to  re-  bury  v.  Centre  School  Dist.  in  Quin- 

quire  that  the  sums   so  designated  cy,  53  Mass.   (12  Mete.)    99;    Order 

should    be    kept    separate    and    dis-  of  Election  of  Town  Officers,  20  R.  I. 

tinct,  so  that  in  case  of  a  deficiency  784. 

in  the  amount  raised  for  one;   and  42  Seaman  v.  Baughman,  82  Iowa, 

an  excess  in  that  voted  for  another,  216,   citing   Bouvier,   Law  Diet,   tit 

the  constituted  agents  could  not  ap-  "Election";  6  Am.  &  Eng.  Enc.  Law 

ply  the  whole   of  the   funds   raised  (1st  Ed.)  260;  Police  Com'rs  v.  City 

to  the  whole  necessary  expenditure;  of  Louisville,  66  Ky.   (3  Bush)   597. 

and  we  are  not  able  to  discover  any  43  Cottrill  v.  Myrick,  12  Me.  222; 

eood   which   would   result  from   re-  Inhabitants   of    Bucksport   v.    Spof- 


176  CORPORATE  ELECTIONS.  §    105 

taining  to  the  town  organization.  Rights  enjoyed  and  privileges 
possessed  are  exercised  at  that  time  by  the  voters  of  the  town. 
The  authority  to  meet  in  this  manner  is  given  by  law,  and  the 
right  of  exercising  powers  obtained  either  by  usage,  custom,  or 
by  statute,  cannot  be  destroyed  by  a  failure  to  exercise  such 
power.  If  the  corporation  fails  to  perform  its  duties  it  may  be 
compelled  by  mandamus  or  other  proper  proceeding.  This  prin- 
ciple was  applied  in  an  English  case*4  where  it  was  held  that  a 
mandamus  would  lie  to  the  corporation  to  proceed  to  the  election 
of  a  mayor  although  there  was  such  an  officer  de  facto.  Under 
the  decisions  in  some  states,  a  failure  to  elect  an  officer  upon  the 
designated  day  does  not  destroy  the  right  to  hold  such  election 
later;45  though  it  is  held  in  Vermont  that  the  majority  of  the 
electors  required  by  the  act  of  incorporation  to  annually  elect  its 
trustees  on  a  certain  day  have  no  power  to  adjourn  a  meeting  at 
that  time  "without  day."46  A  town  meeting,  however,  legally 
called  and  organized,  has,  it  is  generally  held,  the  incidental  and 
inherent  power  of  adjourning  to  meet  at  some  appropriate  place 
and  at  some  future  time  definitely  and  specifically  fixed  in  the 
adjournment.  At  such  adjourned  meeting  it  is  customary  and 
legal  to  transact  such  business  as  could  have  been  properly  trans- 
acted at  the  meeting  as  first  held.47 

§  105.     Officers  and  their  duties. 

Officers  duly  elected  and  qualified  are  authorized  to  perform 
the  duties  required  of  them  by  law  at  town  meetings  whether 
such  duties  be  executive,  ministerial  or  clerical  in  their  charac- 

ford,  12  Me.  487;    Sherman  v.   Tor-  loyal  minority  too  much  in  the  pow- 

rey,  99  Mass.  472.  er    of    a    disloyal    majority."      See, 

4*  Borough    of    Bossiny's    Case,    2  also,  Kimball  v.  Marshall,  44  N.  H. 

Strange,  1003.  465;    People  v.   Martin,   5  N.   Y.    (1 

45  Coles  County  v.  Allison,  23  111.  Seld.)  22. 

437;    Trenton    Com'rs   v.    McDaniel,  47  Chamberlain   v.    Inhabitants    of 

52  N.  C.    (7  Jones)    107;    Lynch  v.  Dover,   13    Me.   466;    Inhabitants   of 

Lafland,  44  Tenn.   (4  Cold.)   96.  Canton  v.  Smith,  65  Me.  203.     The 

46  Stone  v.  Small,  54  Vt.  498.     In  adjourned  meeting  is  a  continuation 
following  the  rule  laid  down  in  the  of  the  original  one.    Reed  v.  Inhabi- 
text  the  court  said:     "This  we  deem  tants  of  Acton,  117  Mass.  384;  Good- 
the  only   safe  rule  to   adopt.     Any  el   v.  Baker,   8   Cow.    (N.    Y.)    286; 
other  rule  would  open  the  door  to  Wisconsin  Cent.  R.  Co.  v.  Ashland 
great  abuse   of  power,  and  place  a  County,  81  Wis.  1. 


§   106  CORPORATE  ELECTIONS.  177 

ter.48  Upon  the  question  of  eligibility,  Mass.  St.  1898,  ch.  548,  § 
173,  provides  that  no  person  shall  be  eligible  or  act  as  an  election 
officer  at  a  town  election  at  which  he  is  a  candidate,  and  that 
upon  becoming  such  candidate,  if  he  does  not  resign,  the  power 
of  removal  is  given  to  the  selectmen  of  the  town.  In  a  late  case40 
it  was  held  that  this  section  did  not  apply  to  moderators  who 
were  also  candidates  at  town  elections,  for  though  acting  as  offi- 
cers at  such  elections  their  duties  were  merely  incidental  to  the 
official  duties  otherwise  performed  by  them. 

§  106.    Voters  and  their  qualifications. 

The  act  of  voting  is  not  an  inherent  or  inalienable  right;  it  is 
a  privilege ;  a  special  mark  of  favor  given  by  the  state  to  certain 
individuals  to  be  exercised  by  them.  As  was  said  in  a  Missouri 
ease,  "It  is  neither  a  vested,  an  absolute,  nor  a  natural  right."60 
It  being  then  a  matter  of  favor,  the  state  undoubtedly  has  the 
right  to  prescribe  qualifications  which  must  be  possessed  before 
the  privilege  can  be  lawfully  exercised,  the  limitations  upon  such 
qualifications  being  that  they  be  uniform  and  certain  in  their 
application,  not  based  upon  religious  belief,  and  not  within  pro- 
hibitive clauses  of  either  the  Federal  or  state  constitutions.  The 
validity  of  laws  prescribing  such  qualifications  has  been  settled 
beyond  doubt,  a  doubt  arising  only  as  to  their  application  or  con- 
struction. The  two  qualifications  necessary  to  consider  now  are 
those  based  on  ownership  of  taxable  property  within  the  town,51 
or  residence  for  the  length  of  time  prescribed  by  statute.52  No 
affirmative  action  on  the  part  of  the  town  authorities  is  necessary 
to  constitute  a  person  possessing  the  qualifications  from  becom- 
ing a  citizen  and  a  legal  voter  at  the  moment  of  his  settlement.53 

48  Dodds  v.  Henry,  9  Mass.  262:  of  Marlboro  v.  Inhabitants  of  Free- 

Kimball  v.  Lamprey,  19  N.  H.  215;  hold,  50  N.  J.  Law,  509,  14  Atl.  595: 

Birge  v.  Berlin  Iron  Bridge  Co.,  62  Poor  Dist.  of  Lock  Haven  v.  Poor 

Hun  (N.  Y.)  618.  Dist.  of  Chapman  (Pa.)  13  Atl.  742; 

4»  Wheeler  v.  Carter,  180  Mass.  Town  of  Topsham  v.  Town  of  Wil- 

382,  62  N.  E.  471.  liamstown,  60  Vt.  467,  12  Atl.  112. 

BO  Blair  v.  Ridgely,  41  Mo.  63,  97  Insanity  does  not  interrupt  the  gain- 
Am.  Dec.  248.  ing  of  settlement  in  town  based  upon 

6i  Sparrow  v.  Wood,  16  Mass.  457;  residence.  Monroe  County  v.  Jack- 

Oakes  v.  Hill,  27  Mass.  (10  Pick.)  son  County,  72  Wis.  449,  40  N.  W. 

333.  224. 

52  Canaan  v.  Grafton  County,  64  »3  Lord  v.  Chamberlain,  2  Me.  (2 

N.  H.  595,  15  Atl.  18;  Inhabitants  Greenl.)  67;  Bradford  v.  Gary,  5 

Abb.  Corp. — 12. 


178 


CORPORATE  ELECTIONS. 


§   107 


On  the  division  of  a  town,  the  statute  may  give  to  those  resid- 
ing upon  the  dividing  line  the  right  to  select  their  legal  settle- 
ment, a  personal  privilege  to  the  persons  so  favoned.54 

§  107.    Miscellaneous  matters. 

It  has  been  held  an  indictable  offense  to  violently  and  rudely 
disturb  a  town  meeting,55  and  the  same  is  true  of  "repeating"  at 
town  elections.58  The  town  meeting  is  considered  a  deliberative 
body  to  which,  except  when  engaged  in  the  election  of  officers, 
the  usual  rules  of  parliamentary  law  apply.57  In  New  Hamp- 
shire, however,  this  rule  is  modified  to  the  extent  that  the  mod- 
erator may  have  the  power  to  prescribe  rules  for  the  conduct  of 
the  meeting  over  which  he  presides.58 


Me.  (5  Greenl.)  339;  Inhabitants  of 
Cumberland  v.  Prince,  6  Me.  (6 
Greenl.)  408;  Inhabitants  of  West- 
port  v.  Inhabitants  of  Dartmouth, 
10  Mass.  341;  Cobb  v.  Kingman,  15 
Mass.  197. 

5*  Blanchard  v.  Inhabitants  of 
Cumberland,  18  Me.  113. 

65  Com.  v.  Hoxey,  16  Mass.  385. 
See,  also,  the  cases  collected  in  1 
Saund.  135,  note  3,  and  1  Starkie, 
Cr.  PI.  228,  232. 

5«  Walker  v.  Winn,  8  Mass.  248: 
Com.  v.  Silsbee,  9  Mass.  417;  Brad- 
ley v.  Heath,  29  Mass.  (12  Pick.) 
163. 

67  Hunneman  v.  Inhabitants  of 
Graf  ton,  51  Mass.  (10  Mete.)  454; 
Kimball  v.  Lamprey,  19  N.  H.  215. 
In  State  v.  Davidson,  32  Wis.  114, 
the  court  said:  "The  subjects  upon 
which  a  town  meeting  may  take  ac- 
tion are  numerous  and  diversified. 
The  course  of  procedure  which  is  to 
be  pursued  is  not  fully  marked  out 
by  the  statute  and  I  deem  it  quite 
safe  to  say  that  when  the  statute 
does  not  give  direction,  the  general 


rules  of  parliamentary  law  so  far 
as  they  may  be  applicable,  should 
be  observed  and  enforced  in  conduct- 
ing the  business  of  a  town  meeting. 
It  will  necessarily  follow  that  prop- 
ositions upon  which  the  town  meet- 
ing may  lawfully  act  may  be  submit- 
ted to  it  by  motion  or  resolution,  or 
in  the  form  of  proposed  by-laws  or 
orders,  by  any  elector  of  the  town, 
for  the  consideration  of  the  meet- 
ing. It  also  follows  from  such  ap- 
plication of  the  rules  of  parliament- 
ary law,  that  the  chairman  of  the 
meeting  cannot  prevent  action  upon 
any  subject  within  the  powers  con- 
ferred by  law  upon  the  meeting,  by 
neglecting  or  refusing  to  present  the 
same  to  the  meeting  for  its  action." 
58  Hill  v.  Goodwin,  56  N.  H.  441. 
"The  moderator  *  *  *  rules  as 
he  understands  that  he  ought  to  rule. 
If  his  ruling  is  incorrect,  any  per- 
son who  is  dissatisfied  may  appeal 
to  the  meeting,  and  its  decision,  be- 
ing not  against  the  statute,  is  final 
and  conclusive," 


CHAPTER  V. 


THE  POWERS  OF  PUBLIC   CORPORATIONS. 


I.  IN  GENERAL. 

§  108.  General  powers. 

109.  Implied. 

110.  Discretionary  and  imperative  powers. 

111.  Corporate  powers;  their  extent  and  nature. 

112.  Their  delegation. 

113.  Rules  of  construction. 

114.  Rule  of  strict  construction;  how  modified 

II.  THE  POLICE  POWEB. 

§  115.  Definitions. 

116.  General  limitations  upon  its  exercise. 

117.  Constitutional  limitations. 

118.  The  preservation  of  public  health. 

119.  Public  agencies  for  the  preservation  of  health. 

120.  Boards  of  health;  their  jurisdiction  and  powers. 

121.  Their  liability. 

122.  Quarantines  and  quarantine  regulations. 

123.  Police  power  respecting  the  regulation  of  occupations. 

124.  Inspection  of  foods. 

125.  Regulations  as  to  the  construction- and  use  of  buildings. 

126.  Regulation  and  abatement  of  nuisances. 

127.  The  protection  of  public  morals. 

128.  Regulations  controlling  or  suppressing  gambling. 

129.  The  police  power;  further  illustrations  of  its  exercise. 

130.  The  exercise  of  the  police  power  in  regulating  the  sale  and 

consumption  of  intoxicating  liquors. 

131.  The  police  power;   miscellaneous  illustrations  of  its  valid 

exercise. 

132.  The  exercise  of  the  police  power  continued;  the  exaction 

of  license  fees. 

133.  The  exercise  of  the  police  power;  further  illustrations. 

134.  Establishment  of  public  markets. 

135.  Public  markets;  the  power  to  regulate. 

136.  The  right  to  authorize  private  markets. 


18C  POWERS. 

137.  The  control  of  nuisances. 

138.  Nuisances;    their  abatement   and   removal. 

139.  Objections  to  the  removal  or  abatement  of  nuisances. 

III.  THE  POWEB   TO   INCUR   INDEBTEDNESS  OTHEB  THAN   BY  THE   ISSUE  OF 

BONDS. 

§  140.  The  corporate  power  to  incur  indebtedness. 

141.  Must  be  expressly  given;  it  cannot  be  implied. 

142.  To  what  extent  discretionary  if  expressly  given. 

143.  Implied  power  of  the  courts  to  compel  the  payment  of 

debts. 

144.  Manner  of  its  exercise;  body  authorized. 

145.  The  power  limited  by  the  purpose  or  use  of  funds  to  be 

raised. 

146.  The  construction  of  buildings  a  public  purpose. 

146a.  Illustrations  of  a  "public  purpose"  continued;   the  support 

of  the  poor;    water  supply. 
146b.  "Public  purposes"   continued;    light. 

147.  The  construction  of  internal  improvements. 

148.  Express  limitations  on  power  to  incur  indebtedness. 

149.  Same  subject  continued. 

150.  Retroactive  effect  of  limitations. 

151.  Construction  of  statutory  and  other  limitations. 

152.  Definition  of  the  word  "indebtedness"  or  "debt"  as  used  In 

limiting  laws. 

153.  Indebtedness  must  be  a  legal  demand. 

154.  Debts  of  territorially  co-existing  public  corporations. 

155.  Assessment  or  valuation  to  be  considered. 

156.  Indebtedness  further  defined;  warrants  issued  in  anticipa- 

tion of  taxes  levied. 

157.  Expenses  incurred  in  excess  of  current  revenue  or  income. 

158.  Net  debts;  deduction  of  uncollected  taxes. 

159.  Future  payments  under  executory  contracts  not  usually  re- 

garded as  "debts." 

160.  Unearned   interest   not   considered   a   "debt." 

161.  Deduction  of  assets  to  determine  net  debt. 

162.  Corporate  indebtedness;  its  payment  from  a  special  fund. 

163.  Its  payment  through  the  levy  of  taxes. 

164.  Manner  of  levying  taxes. 

165.  Provision  for  payment  at  time  debt  was  incurred. 

166.  Debt;  mode  of  payment. 
167.'  Time  and  place  of  payment. 
168.  Enforcement  of  a  debt  by  action. 

IV.  THE  POWEB  OF  PUBLIC  COBPORATIONS  TO  INCUB  INDEBTEDNESS  THROUGH 

THE  ISSUE  OF  NEGOTIABLE  SECUBITIES. 

S  169.     Power  to  issue  negotiable  securities. 


IN  GENERAL.  181 

170.  The  power  to  issue  must  be  expressly  given;  it  cannot  br' 

implied. 

171.  Ratification  of  void  issue  of  negotiable  bonds. 

172.  The  issue  of  bonds;  their  purpose. 

173.  Refunding  bonds. 

174.  Obligations  issued   for   the  purpose  of  funding  a  bonded 

indebtedness. 

175.  The  issue  of  negotiable  securities  for  the  construction  or 

improvement  of  highways. 

176.  The  construction  of  municipal  lighting  plants. 

177.  To  secure  a  water  supply. 

178.  Railway  aid  securities. 

179.  Construction  of  drains  and  sewers. 

180.  The  construction  of  bridges. 

181.  The  erection  of  public  buildings. 

182.  For  making  local  improvements. 

183.  Internal  improfements. 

184.  The  power  to  issue  and  the  conditions  precedent  to  Its  ex- 

ercise. 

185.  Performance  of  conditions  precedent  required  of  railway 

companies. 

186.  Conditions  precedent  to  issue. 

187.  Petition. 

188.  The  calling  of  an  election  by  ordinance. 

189.  The  election. 

190.  Questions  not  necessary  for  submission  to  the  electors. 

191.  The  election;  time  and  manner  of  holding. 

192.  Voters  and  their  qualifications. 

193.  Canvass  of  election  returns. 

194.  Necessary  votes. 

195.  Negotiable  securities;  delivery. 

196.  Necessity  for  registration. 

197.  Official  signatures  and  seals. 

198.  Form. 

199.  Recitals  of  authority. 

200.  The  ratification  of  void  securities. 

201.  Negotiable  bonds;  their  validity. 

202.  As  affected  by  adverse  decisions  of  a  state  court 

203.  Validity  of  issue  in  excess  of  legal  authority. 

204.  Legality  as  affected   by   subsequent  legislation. 

205.  Securities  of  public  corporations;  their  legal  character. 

206.  Validity  of  negotiable  securities.     The  doctrine  of  estoppel. 

207.  The  same  subject. 

208.  Estoppel  through  the  payment  of  interest. 

209.  The  doctrine  of  recitals. 

210.  Estoppel  not  applying  to  recitals  of  law. 


182  POWERS. 

211.  Distinction  between  power  to  issue  and  irregularity  In  its 

exercise. 

212.  The  doctrine  as  applied  to  bonds  containing  no  recitals  of 

authority. 

213.  Bona  fide  holder. 

214.  Coupons;  their  legal  character. 

215.  Time  and  place  of  payment. 

216.  Negotiable  securities;  sale. 

217.  Their  payment. 

218.  Time  of  payment. 

219.  Medium  of  payment. 

220.  To  whom  payable. 

221.  The  payment  of  interest. 

222.  The  rule  as  to  the  payment  of  void  bonds. 

223.  Payment   of  securities   through  provisions  for  a  sinking 

fund. 

224.  The  duty  to  levy  taxes  for  the  payment  of  interest  or  prin- 

cipal of  negotiable  bonds. 

225.  Rights  of  a  holder  to  maintain  an  action. 

V.    WARRANTS  AND  MISCELLANEOUS   EVIDENCE  OF   INDEBTEDNESS. 

§  226.  Warrants;  definition;  by  whom  drawn. 

227.  Fund  from  which  payable. 

228.  Formal  issue. 

229.  Audit  and  allowance  of  claims  as  preliminary  to  Issuance. 

230.  Their  legal  character. 

231.  Form. 

232.  Wording. 

233.  Validity. 

234.  Interest  payable. 

235.  Actions  on  warrants. 

236.  Their  payment. 

237.  Presentation  for  payment. 

238.  Payment;  the  amount. 

239.  Manner  of  payment. 

240.  Time  of  payment. 

241.  To  whom  payable. 

242.  Miscellaneous  forms  of  indebtedness. 

243.  The  same  subject;  legal  character. 

244.  Form  and  phraseology. 

245.  Mode  and  time  of  payment. 

VL    THE  POWER  TO  CONTRACT. 

§  246.     In  general. 

247.    The  implied  power  to  contract. 


IN  GENERAL.  183 

248.  Ultra  vires  contracts. 

249.  For  want  of  authority. 

250.  Because  of  purpose  or  result. 

251.  Contracts  protected  by  constitutional  provisions. 

252.  Contracts  ultra  vires  because  of  constitutional  provisions. 

253.  The  same  subject  continued. 

254.  Contracts  ultra  vires  because  contravening  some  exclusive 

right. 

255.  Contracts  ultra  vires  because  of  a  beneficial  interest  resultr 

ing  to  the  public  officers  executing  them. 

256.  Contracts   ultra  vires  because   of  fraud   or  bribery. 

257.  Contracts    ultra   vires    because   extending   beyond    official 

term. 

258.  Ultra  vires  contracts;  their  enforcement. 

259.  Availability  of  the  doctrine  of  estoppel. 

260.  Contracts;  their  formal  execution. 

261.  Presumption  of  legality. 

262.  Mode  of  contracting;  letting  to  the  lowest  bidder. 

263.  Acceptance  of  bids. 

264.  Rejection  of  bid. 

265.  Notice. 

266.  Specifications   of    services    or   supplies   required. 

267.  Discretionary  power  in  officers  to  reject  or  accept  bids. 

268.  The  same  subject  continued. 

269.  Discretionary  power  of  officials  to  award  to  lowest  bidder 

or  otherwise. 

270.  Change  of  contract. 

271.  Parties  to  the  proceedings. 

272.  Conditions  imposed. 

273.  Contracts;  how  made;  in  writing. 

274.  How  made;  orally. 

275.  By  whom  made. 

276.  As  authorized  by  legislative  bodies. 

277.  Contracts  made  by  departments. 

278.  Made  by  public  officials. 

279.  The  ratification  of  an  illegal  contract. 

280.  Ratification  of  a  contract  ultra  vires. 

281.  Legislative  ratification  of  ultra  vires  contracts. 

282.  Ratification  of  illegal  contracts. 

283.  Modification  of  a  contract. 

284.  Avoidance  or  rescission  of  contract. 

285.  Contracts;  their  construction. 

286.  Arbitration  clauses. 

287.  Corporate  contracts;  their  performance. 

288.  A  contract;   its  performance;  acceptance  of  work. 

289.  Fraud  as  rendering  a  contract  invalid. 

290.  The  right  of  the  parties  to  maintain  an  action  based  upon 

a  contract. 


184 


POWERS. 


§  108 


291.  Delay  In  the  performance  of  a  contract. 

292.  The  assignment  of  a  contract. 

293.  Rights  of  parties. 

294.  Payment  of  contract  obligations. 

295.  Extras. 

296.  Public  contracts;   actions. 

297.  Bond  required  of  contractors. 

298.  Rights  of  sureties. 

299.  Subcontractors. 

I.  IN  GENERAL. 
§  108.    General  powers. 

A  public  corporation  is  an  agency  of  government  created  by  the 
sovereign  when  such  action  seems  most  conducive  to  the  public 
good,  for  the  purpose  of  aiding  in  the  exercise  and  administration 
of  governmental  functions.1  A  corporation,  either  public  or  pri- 


i  Barnes  v.  District  of  Columbia, 
91  U.  S.  540.  In  the  opinion  of 
Mr.  Justice  Hunt  is  found  the  fol- 
lowing language:  "A  municipal 
corporation  in  the  exercise  of  all  of 
its  duties,  including  those  most 
strictly  local  or  internal,  is  but  a 
Department  of  the  state.  The  legis- 
lature may  give  it  all  the  powers 
such  a  being  is  capable  of  receiving, 
making  it  a  miniature  state  within 
its  locality.  Again;  it  may  strip  it 
of  every  power,  leaving  it  a  corpora- 
tion in  name  only;  and  it  may  cre- 
ate and  recreate  these  changes  as 
often  as  it  chooses,  or  it  may  itself 
exercise  directly  within  the  locality 
any  or  all  the  powers  usually  com- 
mitted to  a  municipality.  We  do 
not  regard  its  acts  as  sometimes 
those  of  an  agency  of  the  state,  and 
at  others  those  of  a  municipality; 
but  that,  its  character  and  nature 
remaining  at  all  times  the  same,  it 
is  great  or  small  according  as  the 
legislature  shall  extend  or  contract 
the  sphere  of  its  action."  Tippeca- 
noe  County  Com'rs  v.  Lucas,  93  U. 
S.  108.  "Municipal  corporations  are 


mere  instrumentalities  of  the  state 
for  the  convenient  administration  of 
government  and  their  powers  may 
be  qualified,  enlarged,  or  withdrawn, 
at  the  pleasure  of  the  legislature." 
The  court  in  its  opinion  by  Mr.  Jus- 
tice Field  also  say  in  regard  to  leg- 
islative control  of  the  property  of 
public  corporations,  "Their  tenure  of 
property,  derived  from  the  state  for 
specific  public  purposes,  or  obtained 
for  such  purposes  through  means 
which  the  state  alone  can  authorize, 
— that  is,  taxation, — is  so  far  sub- 
ject to  the  control  of  the  legislature, 
that  the  property  may  be  applied  to 
other  public  uses  of  the  municipal- 
ity than  those  originally  designated. 
This  follows  from  the  nature  of  such 
bodies,  and  the  dependent  character 
of  their  existence.  But  property,  de- 
rived by  them  from  other  sources, 
is  often  held,  by  the  terms  of  its 
grant,  for  special  uses,  from  which 
it  cannot  be  diverted  by  the  legis- 
lature. In  such  cases,  the  property 
is  protected  by  all  the  guards 
against  legislative  interference  pos- 
sessed by  individuals  and  private 


§  108 


IN  GENERAL. 


185 


vate,  is  a  creature  of  limited  powers.  Such  powers  as  it  possesses 
are  to  be  found  in  the  charter  of  its  creation,  which  has  been  held 
to  include  not  only  the  act  of  incorporation,  whether  a  special  or 
general  law,  but  constitutional  provisions  and  also  decisions  of 
the  highest  courts  construing  and  applying  these  acts  and  provi- 
sions. In  this  charter,  used  thus  in  its  broad  sense,  is  to  be  found 
the  powers  which  may  be  legally  exercised  by  the  corporation.2 


corporations  for  their  property.  And 
there  would  seem  to  be  reasons 
equally  cogent,  in  abstract  justice, 
against  a  diversion  by  the  legisla- 
ture from  the  purposes  of  a  munic- 
ipality of  property  raised  for  its  use 
by  taxation  from  its  inhabitants." 
United  States  v.  City  of  New  Or- 
leans, 98  U.  S.  381;  Stoutenburgh  v. 
Hennick,  129  U.  S.  141;  Goldthwaite 
v.  City  of  Montgomery,  50  Ala.  186; 
Low  v.  City  of  Marysville,  5  Cal. 
214.  Object  of  creation  government- 
al not  commercial.  Jacksonville 
Elec.  Light  Co.  v,  City  of  Jackson- 
ville, 36  Fla.  229;  Harmon  v.  City 
of  Chicago,  110  111.  400.  The  state 
as  sovereign  may  resume  the  exer- 
cise of  any  powers  granted  to  subor- 
dinate agencies  whenever  it  is 
deemed  expedient.  Herbert  v.  Ben- 
son, 2  La.  Ann.  770;  Police  Jury  of 
Bosster  v.  Shreveport  Corp.,  5  La. 
Ann.  661;  Heistand  v.  City  of  New 
Orleans,  14  La.  Ann.  330;  State  v. 
Garibaldi,  44  La.  Ann.  809;  Hooper 
v.  Emery,  14  Me.  375;  Inhabitants 
of  Camden  v.  Camden  Village  Corp., 
77  Me.  530;  City  of  St.  Louis  v. 
Clemens,  43  Mo.  395;  Ewing  v.  Ho- 
blitzelle,  85  Mo.  64.  "Public  cor- 
porations are  the  auxiliary  of  the 
state  in  the  important  business  of 
municipal  rule  and  are  called  into 
being  at  the  pleasure  of  the  state, 
and  the  same  voice  which  speaks 
them  into  existence  can  speak  them 
out."  But  see  later  Missouri  cases 
modifying  this  decision  somewhat. 


Murnane  v.  City  of  St.  Louis,  123 
Mo.  479,  which  holds  "that  the  im- 
portant business  of  municipal  rule  is 
a  local  and  not  a  state  matter."  See 
authorities  cited  under  section  82 
with  the  discussion  of  the  arbitrary 
right  of  a  state  to  destroy  the  corpo- 
rate existence  of  any  of  its  subordi- 
nate agencies.  See,  also,  Dillon,  Mun. 
Corp.  (4th  Ed.)  note  1,  p.  127,  and 
Cooley,  Taxation  (2d  Ed.)  p.  678, 
where  Judge  Cooley  observes,  "But 
in  the  general  framework  of  our  re- 
publican governments  nothing  is 
more  distinct  and  unquestionable 
than  that  they  recognize  the  exist- 
ence of  local  self-government  and 
contemplate  its  permanency.  Some 
state  constitutions  do  this  in  ex- 
press terms;  others  by  necessary 
implication,  and  probably  in  no  one 
of  the  states  has  the  legislature  been 
entrusted  with  the  power  which 
would  enable  it  to  abolish  the  local 
governments."  People  v.  Common 
Council  of  Detroit,  29  Mich.  108, 
which  holds  that  municipalities  have 
a  constitutional  right  to  local  self- 
government. 

2  City  of  Detroit  v.  Detroit  City 
R.  Co.,  56  Fed.  867;  City  of  Mo- 
bile v.  Dargan,  45  Ala.  310;  Low  v. 
City  of  Marysville,  5  Cal.  214;  City 
of  Oakland  'v.  Carpentier,  13  Cal. 
540,  where  it  is  said,  "A  corporation 
owing  its  existence  to  the  laws  is 
precisely  what  the  law  makes  it." 
People  v.  Henshaw,  76  Cal.  436; 
Kyle  v.  Malin,  8  Ind.  34;  Field  v. 


186 


POWERS. 


§  108 


Judge  Dillon  in  his  work  on  municipal  corporations3  classifies  the 
powers  possessed  as  follows:  "(1)  Those  granted  in  express 
words;4  (2)  those  necessarily  or  fairly  implied  in  or  incident  to 
the  powers  expressly  granted;8  (3)  those  essential  to  the  declared 


City  of  Des  Moines,  39  Iowa,  575; 
City  of  Leavenworth  v.  Norten,  1 
Kan.  432;  First  Municipality  of  New 
Orleans  v.  General  Sinking  Fund 
Com'rs,  1  Rob.  (La.)  279;  Inhab- 
itants of  Camden  v.  Camden  Village 
Corp.,  77  Me.  530;  Cooper  v.  Alden, 
Har.  (Mich.)  72;  Hitchcock  v.  City 
of  St.  Louis,  49  Mo.  484;  Kansas 
City  v.  Lorber,  64  Mo.  App.  604; 
People  v.  Bagley,  85  Cal.  343;  Bor- 
ough of  Greensburg  v.  Young,  53 
Pa.  280;  Appeal  of  Whelen,  108  Pa. 
162;  Gabel  v.  City  of  Houston,  29 
Tex.  335;  Williams  v.  Davidson,  43 
Tex.  1.  See,  also,  authorities  cited 
under  §§  4-7. 

s  Dillon,  Mun.  Corp.  (4th  Ed.)  §  89. 
See,  also,  the  following  cases  among 
many  others  giving  the  same  classi- 
fication or  one  substantially  similar. 
Freeport  Water  Co.  v.  City  of  Free- 
port,  180  U.  S.  587;  affirming  186 
111.  179;  Town  of  New  Decatur  v. 
Berry,  90  Ala.  432;  Reis  v.  Graff, 
51  Cal.  86; -Phillips  v.  City  of  Den- 
ver, 19  Colo.  179;  City  of  New  Lon- 
don v.  Brainard,  22  Conn.  552;  Hue- 
sing  v.  City  of  Rock  Island,  128  111. 
465;  Champer  v.  City  of  Green  Cas- 
tle, 138  Ind.  339;  Hanger -v.  City  of 
Des  Moines,  52  Iowa,  193;  Henke 
v.  McCord,  55  Iowa,  378;  Cook  v. 
Dendinger,  38  La.  Ann.  261;  State 
v.  Robertson,  45  La.  Ann.  954;  Low- 
ell v.  City  of  Boston,  111  Mass.  454; 
State  v.  Murphy,  134  Mo.  548;  Da- 
venport v.  Kleinschmidt,  6  Mont. 
502;  City  of  New  York  v.  Dry  Dock, 
E.  B.  &  B.  R.  Co.,  133  N.  Y.  104; 
Smith  v.  City  of  Newbern,  70  N.  C. 


14;  State  v.  Webber,  107  N.  C.  962; 
City  of  Corvallis  v.  Carlile,  10  Or. 
139;  City  of  Portland  v.  Schmidt, 
13  Or.  17;  Sharpless  v.  City  of  Phil- 
adelphia, 21  Pa,  147;  Williams  v. 
Davidson,  43  Tex.  33;  City  of  Bren- 
ham  v.  Brenham  Water  Co.,  67  Tex. 
542;  Village  of  St.  Johnsbury  v. 
Thompson,  59  Vt.  300;  Kirkham  v. 
Russell,  76  Va.  956;  Lynchburg  & 
R.  St.  R.  Co.  v.  Dameron,  95  Va. 
545;  Clarksburg  Elec.  Light  Co.  v. 
City  of  Clarksburg,  47  W.  Va.  739; 
Bell  v.  City  of  Platteville,  71  Wis. 
139. 

*  Board  of  Liquidation  of  City 
Debt  v.  Louisville  &  N.  R.  Co.,  109 
U.  S.  221;  Low  v.  City  of  Marys- 
ville,  5  Cal.  214.  Dailey  v.  City  of 
New  Haven,  60  Conn.  314,  where  the 
court  say:  "It  is  a  rule  of  great 
public  utility  and  courts  should  rec- 
ognize and  enforce  it  as  a  safeguard 
against  the  tendency  of  municipali- 
ties to  embark  in  enterprises  not 
germane  to  the  objects  for  which 
they  are  incorporated."  Crofut  v. 
City  of  Danbury,  65  Conn.  294 ;  Kyle 
v.  Malin,  8  Ind.  34;  Town  of  Kirk- 
wood  v.  Meramec  Highlands  Co.,  160 
Mo.  111. 

B  In  re  Lee  Tong,  18  Fed.  253,  the 
court  speaking  through  Judge  Deady 
says:  "Apart  from  the  few  facul- 
ties considered  incident  to  its  exist- 
ence, such  as  the  capacity  to  sue 
and  be  sued,  and  have  a  common 
seal,  a  municipal  corporation  has  no 
power  to  do  any  act  except  such  as 
are  essential  to  the  plain  purpose  of 
its  creation,  or  are  authorized  by 


§  108 


IN  GENERAL. 


187 


offices  and  purposes  of  the  corporation,  not  simply  convenient  but 
indispensable. '  '6 

This  classification  and  statement  has  been  approved  by  many 
courts.  The  exercise  of  the  governmental  powers  thus  conferred 
upon  public  corporations  is  not  optional.  They  are  political  sub- 
ordinate divisions  of  the  state  organized  as  a  part  of  its  machin- 
ery of  administration.  Their  duties  are  wholly  of  a  public  nature 
and  their  creation  a  matter  of  public  convenience  or  governmental 
necessity.  In  order  that  they  may  better  carry  out  the  purposes 
for  which  they  are  created  certain  powers  are  conferred  on  them, 
and  whether  they  will  assume  and  exercise  these  powers  or  per- 
form the  duties  imposed  are  matters  with  which  they  have  no 
concern.  The  exercise  of  public  powers  is  held  involuntary.7 


the  express  provisions  of  its  char- 
ter, or  a  clear  or  necessary  implica- 
tion therefrom.  Under  this  rule,  be- 
fore it  can  be  concluded  that  the 
power  to  punish  persons  for  keeping 
gambling  houses  and  gaming  is  in- 
cluded in  the  power  to  suppress  the 
same,  it  must  clearly  appear  from 
the  language  of  the  grant,  read  by 
the  light  of  the  circumstances  of  the 
case,  that  such  was  the  intention  of 
the  legislature.  If  there  is  a  reason- 
able doubt  about  the  implication  of 
the  power,  it  must  be  resolved 
against  its  exercise."  Scott's  Ex'rs 
v.  City  of  Shreveport,  20  Fed.  714; 
Ex  parte  Burnett,  30  Ala.  461;  Doug- 
lass v.  City  of  Placerville,  18  Cal. 
643;  City  of  New  London  v.  Brain- 
ard,  22  Conn.  552.  Dailey  v.  City  of 
New  Haven,  60  Conn.  314,  where  the 
court  say:  "Even  towns  which  un- 
der our  peculiar  political  history  and 
policy  *  *  *  possessed  because 
of  their  independent  character,  large 
original  powers  were  held  to  have 
no  original  or  inherent  powers  what- 
ever but  only  such  as  are  either  ex- 
pressly granted  by  the  legislative 
power  of  the  state  or  are  necessary 
to  the  performance  of  their  duties  as 


territorial  and  municipal  corpora- 
tions." Sherlock  v.  Village  of  Win- 
netka,  68  111.  530;  City  of  Mt.  Pleas- 
ant v.  Breeze,  11  Iowa,  399;  John- 
ston v.  City  of  Louisville,  74  Ky.  (11 
Bush)  527;  City  of  Charleston  v. 
State,  2  Speers  (S.  C.)  719;  Miller 
v.  Burch,  32  Tex.  208. 

e  Scott's  Ex'rs  v.  City  of  Shreve- 
port, 20  Fed.  714;  McFarlain  v. 
Town  of  Jennings,  106  La.  541,  31 
So.  62;  Town  of  Kirkwood  v.  Mera- 
mec  Highlands  Co.,  160  Mo.  111. 
Power  to  create  a  monopoly  not  an 
implied  one.  See  cases  cited  under 
last  preceding  note. 

7  Granger  v.  Pulaski  County,  26 
Ark.  37:  "Their  functions  are  whol- 
ly of  a  public  nature,  and  their  cre- 
ation a  matter  of  public  convenience 
and  governmental  necessity,  and  in 
order  that  they  may  the  better  sub- 
serve the  public  interest,  certain 
corporate  powers  are  conferred  on 
t-iem.  Whether  they  will  assume 
their  corporate  powers  end  perform 
the  duties  and  obligations  imposed, 
are  questions  over  which  they  have 
no  choice,  but  their  assumption  is 
wholly  involuntary."  See,  also,  the 
following  cases:  Town  of  Waltham 


188  POWERS.  §  108 

They  have  the  full  power  to  pass  rules  and  regulations  for  the 
carrying  out  of  the  duties  entrusted  to  them,  and  usually  granted 
to  corporations  of  similar  character.8  A  late  author  on  general 
law,9  in  discussing  the  powers  exercised  by  a  public  corporation, 
states:  "A  municipal  corporation  ordinarily  possesses  several 
distinct  classes  of  power.  First,  those  strictly  political  or  gov- 
ernmental, pertaining  to  the  police  and  governments,  in  which 
they  are  the  mere  agents  of  the  state.10  A  second  class,  such  as 
the  public  are  always  interested  in,  namely,  schools,  hospitals  and 
the  like.11  A  third  class,  only  quasi  public  in  their  nature,  such, 
for  instance,  as  gasworks,  waterworks  for  fire  protection,  electric 
lighting  plants,  and  the  like.  Courts  of  different  states  do  not 
agree  in  classifying  these  functions  as  public  or  private,  but  most 
American  cities  possess  them.12  A  fourth  class,  private  prop- 
erty."13 

The  author  would  suggest  as  a  better  classification  of  powers 
to  be  exercised  by  municipal  corporations  proper,  those  possessed 
in  their  capacity,  first,  as  agents  of  the  government;  second,  as 
municipal  corporations  proper;  third,  as  private  corporations, 
and  in  case  of  public  corporations  other  than  municipal  corpora- 
tions proper,  first — those  possessed  as  agents  of  the  government, 
and  second,  as  private  corporations. 

The  powers  exercised  by  all  public  corporations,  as  suggested, 
must  be  found  in  the  charter  of  the  corporation,  this  charter  being 
based  upon  either  a  public  or  special  act,14  limited  and  controlled 

v.   Kemper,    55    111.    346;    White    v.  "  Hearns  v.   Waterbury  Hospital, 

County  of  Bond,  58  111.  297;  Hill  v.  66  Conn.  98;    Speight  •».  People,  87 

City  of  Boston,  122  Mass.  344;  Brab-  111.    595;    Benton    r.    Trustees    City 

ham    v.    Hinds    County    Sup'rs,    54  Hospital  of  Boston,  140  Mass.  13. 

Miss.   363.     See,  also,  cases  cited  §  12  City   of  Walla   Walla   v.  Walla 

110,  post.  Walla  Water  Co.,  172  U.  S.   1;   El- 

sReddick  v.  People,  82   111.  App.  more   v.    Drainage   Com'rs,   135    111. 

85.     See   authorities   cited   under   §  269;    Hill    v.    City    of    Boston,    122 

109,  post.  Mass.  344;   Springfield  F.  &  M.  Ins. 

s  Andrews'  American  Law,  p.  502.  Co.  v.  Village  of  Keeseville,  148  N. 

10  White  v.  County  of  Bond,  58  111.  Y.  46. 

297;  Hill  v.  City  of  Boston,  122  Mass.  "Safety  Insulated  Wire  &  Cable 

344;   Bigelow  v.  Inhabitants  of  Ran-  Co.    v.    City    of    Baltimore,    66    Fed. 

dolph,     80    Mass.     (14    Gray)     541;  140;  People  v.  Hurlbut,  24  Mich.  44; 

Eastman  v.  Meredith,  36  N.  H.  284;  Hill  v.  City  of  Boston,  122  Mass.  344. 

Moffitt  v.  City  of  Asheville,  103  N.  C.  «  Trustees  of  Dartmouth   College 

237.  v.  Woodward,  4  Wheat.  (U.  S.)  518; 


§  108 


IN  GENERAL. 


189 


by  constitutional  provisions  and  construed  by  judicial  decisions.15 
Some  cases  also  hold  that  powers  enjoyed  and  exercised  without 
interruption  or  objection  for  many  years  may  be  legally  exercised 
by  such  corporations  through  the  doctrine  of  prescription,  but 
the  weight  of  authority  is  against  any  increase  or  enlargement  of 
the  powers  of  a  public  corporation  through  the  application  of  this 
doctrine  and  even  in  those  states  where  occasional  cases  are  found 
favoring  the  acquirement  of  a  power  by  usage,  the  courts  hold 
that  the  usage  should  be  general  and  reasonable.  The  tendency 
is  to  a  restriction  and  limitation  of  the  powers  capable  of  being 
legally  exercised  by  public  corporations.16  In  England,  the  cases 
generally  hold  that  public  corporations  may  legally  exercise  pow- 
ers by  virtue  of  long  established  custom  or  usage  from  which  an 
original  grant  of  power  by  legal  authority  will  be  presumed.17 


Thomson  v.  Lee  County.  YU  U.  S.  (3 
Wall.)  327;  City  of  Mobile  v.  Moog, 
53  Ala.  561.  "Sovereignty  resides 
only  in  the  entire  state.  In  the- 
municipal  or  other  local  communi- 
ties thereof,  or  in  their  magistra- 
cies, there  is  no  such  thing  as  an 
inherent  and  independent  authority 
or  right  to  govern,  by  which  the 
communities  themselves  or  any  of 
the  members  thereof  must  be  legal- 
ly bound.  Submission  is  due  to  the 
obligations  which  such  bodies  under- 
take to  impose  only  so  far  as  the 
state,  in  the  exercise  of  its  sover- 
eign powers  for  the  general  good, 
has  delegated  authority  to  create 
them."  Town  of  Petersburg  v.  Map- 
pin,  14  111.  193;  Stewart  v.  Adams, 
50  Kan.  560;  McManning  v.  Farrar, 
46  Mo.  376;  People  v.  Mitchell,  35  N. 
Y.  551.  See,  also,  §§  22-31. 

is  Madden  y.  Lancaster  County,  65 
Fed.  188;  Robert  J.  Boyd  Pav.  & 
Contr.  Co.  v.  Ward,  85  Fed.  27; 
Kansas  City  v.  Scarritt,  127  Mo.  642. 

i«  In  Attorney  General  v.  Bank  of 
Newbern,  21  N.  C.  (1  Dev.  &  B.  Eq.) 
216,  the  court  say:  "Their  acts  con- 
temporaneously, and  continued  con- 
sistently through  a  period  of  eigh- 


teen years,  are  such  strong  proof  of 
the  sense  in  which  the  act  was  un- 
derstood by  those  who  passed  it,  as 
to  make  their  construction  almost 
as  authoritative,  as  if  the  words  ad- 
mitted of  no  other."  Butler  v.  City 
of  Charlestown,  73  Mass.  (7  Gray) 
12.  "The  first  suggestion  to  be  made 
on  this  point  is,  that  in  cities  where 
the  corporation  acts  only  through 
officers  whose  powers  are  limited 
and  defined  by  law,  the  court  would 
be  slow  to  sanction  any  usage  en- 
larging those  powers."  Benoit  v. 
Inhabitants  of  Conway,  92  Mass. 
(10  Allen)  528;  Willard  v.  Inhab- 
itants of  Newburyport,  29  Mass.  (12 
Pick.)  227;  Frazier  v.  Warfield,  13 
Md.  279;  Spaulding  v.  City  of  Low- 
ell, 40  Mass.  (23  Pick.)  71;  Dem- 
arest  v.  Inhabitants  of  New  Barba- 
does,  40  N.  J.  Law,  604;  City  of 
Camden  v.  Varney,  63  N.  J.  Law, 
325;  Wetmore  v.  Story,  22  Barb. 
(N.  Y.)  414. 

IT  Attorney  General  v.  Bank  of 
Newbern,  21  N.  C.  (1  Dev.  &  B.  Eq.) 
216;  Chad  v.  Tilsed,  5  Moore,  185; 
Clark  v.  Denton,  1  Barn.  &  Adol.  92; 
Rex  v.  Grout,  1  Barn.  &  Adol.  104; 
Rex  v.  Sal  way,  4  Man.  &  R.  314; 


190 


POWERS. 


The  application  of  the  American  rule  does  not,  however,  prevent 
the  courts  from  establishing  the  meaning  of  an  ambiguous  grant 
of  power  by  following  the  custom  or  usage  of  the  corporation  or 
its  inhabitants  in  its  exercise.  This  is  especially  true  where  the 
manner  in  which  a  power  is  to  be  exercised  is  the  question  at 
issue.18 

§  109.    Implied. 

Public  corporations,  by  the  weight  of  authority,  possess  not 


Id.,  9  Barn.  &  C.  424;  Rex  v.  Gold- 
smith, 4  Barn.  &  Adol.  835;  Attor- 
ney General  v.  Foster,  10  Ves.  335; 
Rex  v.  Mashiter,  6  Adol.  &  E.  153. 

is  Van  Hostrup  v.  City  of  Madison, 
68  U.  S.  (1  Wall.)  291,  and  Meyer 
v.  City  of  Muscatine,  68  U.  S.  (1 
Wall.)  384,  hold  that  a  municipality 
will  be  estopped  from  denying  the 
construction  already  given  by  it  to 
an  ambiguous  charter  provision 
where  such  construction  has  been 
accepted  by  third  parties  in  good 
faith  and  where  a  different  one  will 
result  in  a  serious  injury  to  them. 
See  also  as  illustrating  this  same 
proposition  the  case  of  St.  Louis 
Brewing  Ass'n  v.  City  of  St.  Louis, 
140  Mo.  419,  where  the  court  said: 
"If  any  doubts  could  exist  as  to  the 
proper  construction  of  this  ordi- 
nance, they  are  put  at  rest  by  the 
evident  construction  the  city  itself 
placed  upon  it  which  appears  from 
the  fact  that  no  amendment  was 
deemed  necessary." 

Frazier  v.  Warfield,  13  Md.  279. 
"Doubtful  words  in  a  general  stat- 
ute may  be  expounded  with  refer- 
ence to  a  general  usage  and  when 
a  statute  is  applicable  to  a  particu- 
lar place  only,  such  words  may  be 
construed  by  usage  at  that  place." 

Smith  v.  Inhabitants  of  Cheshire, 
79  Mass.  (13  Gray)  319;  Kimball  v. 
Brawner,  47  Mo.  398;  Sherwin  v. 


Bugbee,  16  Vt.  439.  "In  constru- 
ing statutes  applicable  to  public 
corporations,  courts  will  attach  no 
slight  weight  to  the  uniform  prac- 
tice under  it  if  this  practice  has 
been  continued  for  a  considerable 
period  of  time."  But  see  Wetmore 
v.  Story,  22  Barb.  (N.  Y.)  414; 
Hood  v.  City  of  Lynn,  83  Mass.  (1 
Allen)  103,  where  the  court  said  in 
considering  an  illegal  appropriation 
of  money  claimed  to  be  valid  on 
the  ground  of  custom,  "An  unlawful 
expenditure  of  money  of  a  town 
cannot  be  rendered  valid  by  usage, 
however  long  continued.  Abuses  of 
power  and  violations  of  right  de- 
rive no  sanction  from  time  or  cus- 
tom. A  casual  or  occasional  exer- 
cise of  a  power  by  one  of  a  few 
towns  will  not  constitute  usage.  It 
must  not  only  be  general,  reason- 
able and  of  long  continuance,  but, 
what  is  more  important  it  must 
also  be  a  custom  necessary  to  the 
exercise  of  some  corporate  power, 
or  the  enjoyment  of  some  corporate 
right,  or  which  contributes  essen- 
tially to  the  necessities  and  con- 
venience of  the  inhabitants.  The 
usage  relied  on  in  the  present  case, 
if  established,  would  not  satisfy 
either  of  these  last  named  requisites, 
which  are  necessary  to  give  it  valid- 
ity." 


§  109 


IN  GENERAL. 


191 


only  those  powers  granted  in  express  words  but  also  those  neces- 
sarily or  fairly  incident  to  the  powers  expressly  granted  and 
those  implied  because  essential  to  the  declared  offices  and  pur- 
poses of  the  corporation.  It  is  comparatively  easy  to  give  the 
classification  of  powers  or  to  state  a  general  rule  of  application 
which  will  control  the  courts  in  passing  upon  the  legality  of  an 
act  done  by  a  public  corporation  under  authority  of  some  power 
which  it  is  claimed  to  possess.  Among  the  implied  powers  legally 
exercised  by  public  corporations  are  those  which  may  be  termed 
usual  municipal  powers.19  The  courts  recognize  the  fact  that 
public  corporations  are  organized  not  only  as  governmental  agen- 
cies but  also  for  the  purpose  of  enabling  the  people  of  a  particular 
locality  to  govern  themselves  in  respect  to  their  local  matters. 
In  Minnesota  such  corporations,  it  is  declared,  "shall  have  the 
general  powers  possessed  by  municipal  corporations  at  common 
law."20  And  a  Michigan  case  decided  that  municipal  organiza- 
tions in  Michigan  were  of  "common-law  origin  and  having  no  less 
than  common-law  franchises."21  In  a  discussion  of  the  doctrine 


i»  City  of  Ottawa  v.  Carey,  108 
U.  S.  110;  Baumgartner  v.  Hasty, 
100  Ind.  575;  Mayo  v.  Dover  &  Fox- 
croft  Village  Fire  Co.,  96  Me.  539. 

Aurora  Water  Co.  v.  City  of  Auro- 
ra, 129  Mo.  540.  "There  are  many 
implied  powers  which  attach  them- 
selves to  municipal  corporations,  in- 
herent powers  which  belong  to  them 
because  they  are  municipal  corpora- 
tions just  as  certain  powers  are  in- 
herent in  courts  (and  their  public 
agencies)  because  of  the  very  na- 
ture and  attributes  of  their  organi- 
zation." 

Skyes  v.  City  of  Columbus,  55 
Miss.  115;  Le  Couteulx  v.  City  of 
Buffalo,  33  N.  Y.  333;  City  of  Wil- 
liamsport  v.  Com.,  90  Pa.  498. 

Butler  v.  City  of  Milwaukee,  15 
Wis.  493.  "Implications  of  author- 
ity in  bodies  corporate,  more  espe- 
cially those  created  for  municipal 
purposes,  should  be  clear  and  un- 
doubted, and  the  party  claiming 


through  them  should  be  able  to 
point  them  out  with  certainty  and 
precision.  The  fact  that  he  cannot, 
is  conclusive  that  they  do  not  ex- 
ist. Mere  general  arguments  drawn 
from  the  convenience  of  possessing 
a  power  under  certain  circumstances 
in  case  of  emergency — conclusions 
that,  if  possessed,  it  might  be  bene- 
ficially exercised, — are  very  danger- 
ous sources  of  corporate  authority. 
It  was  with  such  that  the  counsel 
was  obliged  to  present  this  case. 
Implications  spring  from  the  neces- 
sities of  some  power  actually  con- 
ferred, and  not  from  notions  of 
what  would  be  convenient  or  ex- 
pedient under  particular  circum- 
stances. Hence  this  case  differs  ma- 
terially from  that  of  Miller  v.  City 
of  Milwaukee,  14  Wis.  642." 

20  Laws  Minn.  1899,  p.  51. 

21  People  v.  Hurlbut,  24  Mich.  44. 
See,  also,  Butler  v.  City  of  Milwau- 
kee, 15  Wis.  493. 


192 


POWERS. 


§   109 


of  implied  municipal  powers,  it  is  also  well  to  remember  that  a 
grant  of  power  carries  with  it  all  the  necessary  incidents  to  make 
that  grant  effectual.22 

To  enact  ordinances.  Among  the  implied  powers  falling  as  the 
occasion  may  require  either  under  one  or  the  other  of  the  classes 
above  given  is  that  to  enact  ordinances.  The  power  or  right  of  a 
corporation,  private  or  public,  to  adopt  such  by-laws  as  it  may 
deem  proper  for  its  own  internal  government  in  harmony  with 
its  charter,  the  laws  and  the  constitution  of  the  state  and  the  gen- 
eral law  of  the  land  is  not  seriously  questioned.23  The  applica- 
tion of  this  principle  is  restricted,  of  course,  by  the  grade  or 
character  of  the  corporation,  the  purpose  for  which  it  is  organ- 
ized and  the  limitations  first  suggested  in  this  paragraph.2* 

Public  offices.  Another  implied  power  possessed  by  municipal 
corporations  is  that  of  creating  or  instituting  certain  public  offices 
and  officials  where  such  are  necessary  to  the  proper  performance 
of  the  functions  or  duties  imposed  or  required  by  law  of  the  cor- 
poration.25 


22  McCulloch  v.  State  of  Maryland, 
4  Wheat.  (U.  S.)  316;  People  v.  City 
&  County  of  San  Francisco  Sup'rs, 
27  Cal.  655;  Agnew  v.  Brail,  124  111. 
312;  City  of  Anderson  v.  O'Conner, 
98  Ind.  168;  Grimes  v.  Hamilton 
County,  37  Iowa,  290;  Walnut  Tp. 
v.  Rankin,  70  Iowa,  65;  McFarlain 
v.  Town  of  Jennings,  106  La.  541; 
Prout  v.  Inhabitants  of  Pittsfield 
Fire  Dist.,  154  Mass.  450;  Ex  parte 
Marmaduke,  91  Mo.  228;  City  of  St. 
Louis  v.  Shoenbusch,  95  Mo.  618; 
Sheidley  v.  Lynch,  95  Mo.  487;  State 
v.  Walbridge,  119  Mo.  383. 

State  v.  Missouri,  K.  &  T.  R.  Co., 
164  Mo.  208.  "Where  an  express 
power  is  given,  all  the  power  neces- 
sary to  carry  it  into  effect  is  im- 
plied. That  which  is  implied  is  as 
much  a  part  of  the  statute  as  if 
written  therein.  The  statute  pro- 
vides for  an  election,  and  requires 
a  two-thirds  majority  of  the  quali- 
fied voters  to  ratify  the  contract. 


Such  a  contract  necessarily  Involves 
the  creation  of  an  indebtedness.  The 
city  could  not  get  water  without 
paying  for  it,  and  the  legislature 
could  not  have  intended  it  to  do  oth- 
erwise." Peterson  v.  City  of  New 
York,  17  N.  Y.  449;  Ketchum  v. 
City  of  Buffalo,  21  Barb.  294;  af- 
firmed 14  N.  Y.  356;  Shanklin  v. 
Madison  County  Sup'rs,  21  Ohio  St. 
575;  Linn  v.  Borough  of  Chambers- 
burg,  160  Pa.  511. 

23  Lambert    v.    Thornton,     1    Ld. 
Raym.  91;  City  of  Mobile  v.  Yuille, 
3  Ala.  137;   Chamberlain  v.  City  of 
Evansville,    77    Ind.    542;     A    Coal- 
Float  v.  City  of  Jeffersonville,   112 
Ind.   15;    Cross  v.   Town  of  Morris- 
town,    33    N.    J.    Law,    57;    City    of 
Nashville    v.    Linck,    80    Tenn.    (12 
Lea)    499. 

24  State    v.    Hammond,    40    Minn. 
43;   Littlefield  v.  State,  42  Neb.  223. 

25  Lowry  v.  City  of  Lexington,  113 
Ky.  763,  68   S.  W.  1109;    Collopy  v. 


§   1C9  IN  GENERAL.  193 

To  acquire  and  hold  property.  A  public  corporation  has  also 
the  implied  power,  unless  restricted  by  law,  to  acquire  and  hold 
such  property  whether  real,  personal  or  mixed  as  may  be  neces- 
sary or  convenient  to  enable  it  to  either  exercise  powers  directly 
granted  or  to  perform  properly  the  functions  of  government  for 
which  it  was  created.26  This  power  to  acquire  property  has  been 
considered  sufficient  to  authorize  the  purchase  of  property  be- 
yond the  jurisdiction  of  the  corporation  where  this  was  necessary 
for  the  proper  government  of  a  municipality.27  In  regard  to  the 
implied  power  of  public  corporations  to  dispose  of  property  either 
by  transfer,  donation  or  dedication,  to  mortgage  or  pledge  the 
same,  see  the  chapter  relating  to  public  property,  its  acquirement 
and  disposal. 

The  police  power.  A  public  corporation  unquestionably  has 
the  implied  right  to  exercise  the  police  power  and  to  accomplish 
this  purpose,  to  pass  and  enforce  such  police  and  sanitary  regula- 
tions and  ordinances  as  may  be  necessary  and  as  such  public  cor- 
porations may  deem  expedient.  The  right  to  properly  exercise 
the  police  power  has  been  invoked  as  the  basis  of  an  implied 
power  to  supply  the  inhabitants  of  a  municipal  corporation  proper 
with  water  and  light.  Of  the  soundness  of  this  proposition,  espe- 
cially in  regard  to  the  latter,  there  is  grave  question.28 

Miscellaneous  implied  powers.  Public  corporations  and  espe- 
cially municipal  corporations  proper  possess,  in  addition  to  the 
implied  powers  suggested  above,  the  right  to  make  and  use  a 
common  seal  and  alter  it  at  pleasure;  the  power  to  sue  and  be 

Cloherty,  95  Ky.  330;  Boehm  v.  City  98    111.    491;    Newman   v.    Ashe,    68 

of  Baltimore,  61  Md.  259;    State  v.  Tenn.  (9  Baxt.)  380.     But  see  Thomp- 

May,  106  Mo.  488.  son  v.  Moran,  44  Mich.  602. 

26  De  Witt   v.   City  of  San   Fran-        23  Rae  v.  City  of  Flint,  51  Mich, 
cisco,  2  Cal.  289;  Sheidley  v.  Lynch,  526;    Webb   City   &  C.   Waterworks 
95   Mo.   487;    People  v.   Lowber,   28  Co.  v.  Webb  City,  78  Mo.  App.  422; 
Barb.    (N.   Y.)    65;    Le   Couteulx   v.  Saleno  v.   City  of  Neosho,   127  Mo. 
City  of  Buffalo,  33  N.  Y.  333;   In  re  627;    Atlantic  City  Waterworks  Co. 
City  of  Buffalo,  68  N.  Y.  167.     See,  v.  Atlantic  City,   39   N.  J.   Eq.    (12 
also,    Von   Schmidt   v.   Widber,   105  Stew.)   367;  Sayre  Borough  v.  Phil- 
Cal.   151,   and   pertinent   authorities  lips,  148  Pa.  482.     See,  also,  post,  § 
cited  in  the  chapter  relating  to  pub-  115   et  seq.   upon   the  police   power 
lie   property,    its   acquirement,    con-  and    its    exercise — also    those    sec- 
trol  and  disposal.  tions    discussing    municipal    water 

27  City  of  Champaign  v.  Harmon,  and  light  supply. 

Abb.  Corp. — 13. 


194  POWERS.  §   HO 

sued;  complain  and  defend  in  any  court;  acquire  a  name  and  by 
that  name  to  have  perpetual  succession  and  to  exercise  such  pow- 
ers as  are  recognized  necessary  to  the  existence  of  corporate  life 
of  the  character  and  kind  possessed  by  public  corporations.  The 
express  action  of  the  state  in  respect  to  any  of  the  powers  noted 
will,  of  course,  control  the  corporation  in  the  exercise  of  such 
power.  In  the  absence  of  direct  affirmative  action,  the  statement 
above  in  regard  to  implied  powers  is  undoubtedly  true.29 

§  110.    Discretionary  and  imperative  powers. 

The  classification  as  given  by  Judge  Dillon  needs  no  further 
explanation.  There  is  found  however  upon  an  examination  of 
the  authorities,  another  division  of  powers  not  co-ordinate  or  co- 
extensive with  the  one  given,  but  based  upon  the  idea  that  a  pub- 
lic corporation  may  possess  powers  granted  to  it  by  the  sovereign 
the  exercise  of  which  is  optional  ;30  there  also  may  be  other  powers 
granted  to  it  the  exercise  of  which  is  not  a  matter  of  choice.  We 
have,  then,  imperative  powers  or  those  whose  exercise  is  obliga- 
tory upon  the  public  corporation  and  the  performance  of  which 
can  be  compelled  by  proper  process;31  and  discretionary  powers 
or  those  to  be  exercised  or  not  within  the  sound  discretion  of  the 
officers  controlling  public  affairs. 

29  Girard  v.  City  of  Philadelphia,  ^  Mason  v.  Fearson,   9  How.    (U. 
74  U.  S.  (7  Wall.)  1;  City  of  Gaines-  S.)   248;  Vason  v.  City  of  Augusta, 
ville  v.  Caldwell,  81  Ga.  76;  Johnson  38  Ga.  542;   City  of  Ottawa  v.  Peo- 
v.  City  of  Indianapolis,  16  Ind.  227;  pie,  48  111.  233.     In  this  case  it  was 
Neely    v.    Town    Council    of    York-  held    that   mandamus   would   lie   to 
ville,  10  S.  C.  (10  Rich.)  141;  Rich-  compel    town    authorities    to    main- 
ards  v.  Town  of  Clarksburg,  30  W.  tain  certain  bridges  where  the  act 
Va.  491.  granting  the  original  authority  pro- 

30  City  of  Joliet  v.  Verley,  35  111.  vided  "that  said  bridges  when  con- 
58.     A  municipality  cannot  be  com-  Btructed    shall    be    maintained,    re- 
pelled by  the  courts  to  open  streets  paired,   and   opened  to  the  passage 
notwithstanding  the  obligation  rest-  of  boats."     Watts  v.  Police  Jury  of 
ing  upon  it  to  minister  to  the  con-  Carroll,  11  La.  Ann.  141.     Here  the 
venience    of    the    people    within    It.  levy    of    a    tax    was    compelled    by 
Sinking   Fund   Com'rs   v.   Northern  mandamus.     Inhabitants    of   Veazie 
Bank,  58  Ky.    (1  Mete.)    174;   Reed  v.  Inhabitants  of  China,  50  Me.  518; 
v.  City  of  Louisville,  22  Ky.  L.  R.  Inhabitants    of    Milford    v.    Inhab- 
1636,  61  S.  W.  11;  St.  Joseph  Board  Hants  of   Orono,   50   Me.   529;    City 
of  Public  Schools  v.  Patten,  62  Mo.  of  New  York  v.  Furze,   3  Hill    (N. 
444.    The  legislature  of  a  state  can-  Y.)   612;   Malcom  v.  Rogers,  5  Cow 
not  be  compelled  to  make  laws.  (N.   Y.)    188;    Hemmer   T.   Hustace, 


§  no 


IN  GENERAL. 


195 


Their  exercise.  Powers  conferred  on  public  corporations  to 
be  exercised  for  the  public  good,  involving  the  performance 
of  governmental  duties,  are  imperative  in  their  nature.32  They 
become  a  duty  and  their  performance  an  obligation.  The  lan- 
guage used  in  conferring  a  power  does  not  determine  its  charac- 
ter. Words  of  permission  in  a  charter,  it  is  held,  if  they  tend  to 
promote  the  public  benefit,  are  obligatory.  And  it  is  also  true 
that  where  the  law  imposes  a  duty  and  supplies  the  agencies  for 
performing  it,  it  is  to  be  considered  as  imperative  in  character.33 
The  imperative  powers  granted  or  imposed  upon  public  corpora- 
tions cannot  be  abridged,  surrendered  or  destroyed  by  any  act  of 
the  corporation  itself.3*  And  the  converse  of  this  rule,  that  a 


51  Hun  (N.  Y.)  457;  Phelps  v.  Haw- 
ley,  52  N.  Y.  23. 

32  Goodrich    v.    City    of    Chicago, 
20  111.  445;  District  Tp.  of  Dubuque 
v.    City   of   Dubuque,   7    Iowa,   262; 
Middle  Bridge  Proprietors  v.  Brooks, 
13    Me.    391;    City   of   Baltimore   v. 
Marriott,  9  Md.  160;   Anne  Arundel 
County   Com'rs   v.   Duckett,   20   Md. 
468;    Blake  v.   Portsmouth  &  C.  R. 
Co.,  39  N.  H.  435;   Kennelly  v.  Jer- 
sey City,  57  N.  J.  Law,  293;  Arnold 
v.  City  of  Pawtucket,  21  R.  I.  15. 

33  Rex    v.    Town    of    Hastings,    5 
Barn.  &  Aid.  692,  note.     In  Hurford 
v.  City  of  Omaha,  4   Neb.  336,  the 
court  say:     "It  sometimes  becomes 
a  very   grave   question   in   the   con- 
struction   of   statutes   whether   par- 
ticular provisions  are  to  be  regarded 
as    mandatory   or   directory.     It   Is, 
however,   a   familiar   principle  that 
statutes  relating  merely  to  matters 
of  convenience  or  to  the  orderly  and 
prompt  conduct  of  business  and  not 
to   the   essence   of  the  thing  to  be 
done,    are    generally    considered    as 
directory  only  but  this  doctrine  has 
been   carried   so  far  in   some  cases 
that  it  seems  impossible  to  reconcile 
all  the  cases  in  which  the  question 
has    been    considered    and   if    equal 
force  were  given  to  each  case  found 


in  the  books  it  would  be  a  fruitless 
effort  to  attempt  to  fix  any  settled 
discriminate  point  between  a  man- 
datory and  a  directory  statute." 

People  v.  Otsego  County  Sup'rs, 
51  N.  Y.  401;  Phelps  v.  Hawley,  52 
N.  Y.  23.  "Where  persons  or  the 
public  have  an  interest  in  having 
the  act  done  by  a  public  body,  'may' 
in  such  a  statute  means  'must.' " 
Malcom  v.  Rogers,  5  Cow.  (N.  Y.) 
188;  Kelley  v.  City  of  Milwaukee, 
18  Wis.  83. 

s*  City  of  New  York  v.  Second 
Ave.  R.  Co.,  32  N.  Y.  261.  See,  also, 
Dillon,  Mun.  Corp.  (4th  Ed.)  cases 
cited,  note  3,  p.  156,  and  McQuillin 
Mun.  Ord.  §  84;  Goszler  v.  Corpora- 
tion of  Georgetown,  6  Wheat.  (U. 
S.)  593;  Clark  v.  City  of  Washing- 
ton, 12  Wheat.  (U.  S.)  40;  Conti- 
nental Const.  Co.  v.  City  of  Altoona, 
92  Fed.  822;  City  Council  of  Mont- 
gomery v.  Capital  City  Water  Co., 
92  Ala.  361;  City  of  Oakland  v. 
Carpentier,  13  Cal.  540;  Carlyle 
Water,  L.  &  P.  Co.  v.  City  of  Carlyle, 
31  111.  App.  325;  Illinois  Cent.  Hos- 
pital for  Insane  v.  City  of  Jackson- 
ville, 61  111.  App.  199;  City  of  Val- 
paraiso v.  Gardner,  97  Ind.  1;  New 
Orleans  Gas  Light  Co.  v.  City  of 
New  Orleans,  42  La.  Ann.  188;  State 


196 


POWERS. 


§  no 


public  corporation  cannot  by  any  act  of  its  own  increase  its 
powers,  is  also  true.  This  is  especially  true  of  powers  granted 
involving  the  right  of  legislation.  On  the  other  hand,  those  duties 
or  powers  conferred  upon  a  public  corporation  which  are  not 
made  obligatory  in  their  performance  or  exercise,  either  by  the 
language  of  the  statute  conferring  the  power  or  by  the  character 
or  nature  of  the  act  to  be  done,  may  be  considered  as  discretion- 
ary and  optional  so  far  as  their  performance  or  exercise  by  the 
corporation.35  The  legislature  cannot  compel  the  performance, 
by  a  public  corporation,  of  a  discretionary  power.  A  corporate 
act  if  done  by  the  exercise  of  a  prohibited  power  cannot  be  vali- 
dated by  its  subsequent  recognition.38  The  exercise  of  discretion- 
ary powers,37  as  well  as  the  manner  of  such  exercise  when  not 


v.  Graves,  19  Md.  351;  Gale  v.  Vil- 
lage of  Kalamazoo,  23  Mich.  344; 
Jefferson  City  v.  Courtmire,  9  Mo. 
692;  National  Waterworks  Co.  v. 
City  of  Kansas,  20  Mo.  App.  237; 
Attorney  General  v.  Lowell,  67  N. 
H.  198;  Louisville  City  R.  Co.  v. 
City  of  Louisville,  71  Ky.  (8  Bush) 
415;  In  re  Opening  of  Albany  St., 
6  Ahb.  Pr.  (N.  Y.)  273;  City  of 
New  York  v.  Britton,  12  Abb.  Pr. 
(N.  Y.)  367,  note. 

ss  Goodrich  v.  City  of  Chicago,  20 
111.  445;  Merrill  v.  Shaw,  5  Minn. 
148  (Gil.  113);  St.  Joseph  &  D.  C. 
R.  Co.  v.  Buchanan  County  Ct.,  39 
Mo.  485;  State  v.  City  of  St.  Louis, 
158  Mo.  505;  Spears  v.  City  of  New 
York,  72  N.  Y.  442;  Carr  v.  North- 
ern Liberties,  35  Pa.  324;  Grant  v. 
City  of  Erie,  69  Pa.  420. 

Kelley  v.  City  of  Milwaukee,  18 
Wis.  83.  In  this  case  the  court  said 
in  discussing  the  difference  between 
imperative  and  discretionary  pow- 
ers that  "in  some  cases  where  an 
authority  is  conferred  in  permissive 
language  merely,  it  is  still  held  to 
be  imperative  if  third  persons  have 
an  absolute  right  to  have  it  exer- 
cised. But  it  is  obvious  that  this 


principle  cannot  be  applied  to  dis- 
cretionary powers.  For  so  soon  as 
it  is  determined  that  it  is  discre- 
tionary whether  to  exercise  the  au- 
thority or  not,  it  follows  that  there 
are  no  persons  who  have  the  right 
to  insist  on  its  exercise.  To  deter- 
mine whether  such  a  power  is  dis- 
cretionary or  not,  the  nature  of  the 
power  itself  and  the  rights  of  in- 
dividuals in  respect  to  its  exercise 
must  be  looked  at." 

se  McPherson  v.  Foster,  43  Iowa, 
48.  See,  also,  Western  Jurist,  Jan- 
uary, 1872,  for  a  full  discussion  of 
the  subject. 

37  Public  corporations  generally 
possess  a  wide  discretion  both  in  re- 
gard to  the  opening  of  public  streets 
or  highways  and  their  improvement, 
including  the  construction  and  es- 
tablishment of  drains,  sewers,  side- 
walks, pavements  or  crosswalks. 
Brush  v.  City  of  Carbondale,  78 
111.  74;  Fulton  v.  Cummings,  132 
Ind.  453;  Certain  Inhabitants  of 
Melpomerie  St.  v.  City  of  New  Or- 
leans, 14  La.  Ann.  452;  Hovey  v. 
Mayo,  43  Me.  322;  Methodist  Protest- 
ant Church  v.  City  of  Baltimore,  6 
Gill  (Md.)  391;  Skinker  v.  Heman, 


§   HO  IN  GENERAL.  197 

specified  by  the  grant  of  authority,38  is,  as  indicated  by  the  plain 
meaning  of  the  words,  left  to  the  discretion  of  the  corporation 
and  of  its  officials  having  in  charge  the  management  or  the  trans- 
action of  the  specific  act.39  Courts  are  not  permitted,  nor  do  they 
assume,  the  right  to  exercise  any  restraining  or  other  influence 
in  regard  to  the  performance  or  nonperformance  of  discretionary 
duties  unless  questions  are  involved  of  bad  faith,  fraud,  corrup- 
tion or  the  invasion  of  private  rights.40  And  even  under  such 

64  Mo.  App.  441;  Seibert  v.  Tiffany,  Gill,   31   Md.   375;    Page  v.  City  of 

8  Mo.  App.  33;  Farrar  v.  City  of  St.  St.  Louis,  20  Mo.  136;   Lockwood  v. 

Louis,  80  Mo.  379;   Wiggin  v.  City  City  of  St.  Louis,  24  Mo.  20;  Heman 

of  New  York,  9  Paige   (N.  Y.)    16;  v.  Schulte,  166  Mo.  409;  Lincoln  St. 

People    v.    Queens    County    Sup'rs,  R.  Co.  v.  City  of  Lincoln,   61  Neb. 

131    N.    Y.    468;    and   Teegarden   v.  109;    Poillon   v.    City   of   Brooklyn, 

City   of   Racine,   56  Wis.   545.     See  101  N.  Y.  132;  City  of  Cincinnati  v. 

generally  United   States  v.   City  of  Gwynne,    10    Ohio,    192;    Markle    v. 

New  Orleans,  31  Fed.  537;   Danielly  Town    Council   of   Akron,   14   Ohio, 

v.   Cabaniss,   52   Ga.    211;    Sheridan  586;    Kelley   v.   City  of  Milwaukee, 

v.  Colvin,  78  111.  237;   City  of  Rich-  18   Wis.   83;    Union   Pac.   R.   Co.  v. 

mond  v.  McGirr,  78  Ind.  192;  Kitch-  Ryan,   2   Wyo.   408;    Id.,   113   U.   S. 

el  v.  Union  County  Com'rs,  123  Ind.  516. 

540;   Jones  v.  Pendleton  County  Ct.  39  The  exercise  of  a  discretionary 

(Ky.)  19  S.  W.  740;  Droz  v.  Parish  municipal    power    should,    however, 

of  East  Baton  Rouge,  36  La.  Ann.  be   reasonable  both  as  to  its  mode 

307;    Baker  v.    City   of   Boston,   29  and  time.     Kirkham  v.  Russell,  76 

Mass.    (12  Pick.)   184;   Spaulding  v.  Va.    956. 

City  of  Lowell,  40  Mass.  (23  Pick.)  40  City  of  East  St.  Louis  v.  Zeb- 
71;  Torrent  v.  City  of  Muskegon,  iey,  no  U.  S.  321.  "No  court  has 
47  Mich.  115;  Rotenberry  v.  Yalo-  the  right  to  control  that  discretion 
busha  County  Sup'rs,  67  Miss.  470;  (USe  of  municipal  revenues)  much 
Christman  v.  Phillips,  58  Hun  (N.  less  to  usurp  and  supersede  it.  To 
Y.)  282;  Schanck  v.  City  of  New  do  so,  in  a  single  year,  would  re- 
York,  69  N.  Y.  444.  quire  a  revision  of  the  details  of 
ss  Thompson-Houston  Elec.  Co.  v.  every  estimate  and  expenditure 
City  of  Newton,  42  Fed.  723;  City  of  based  upon  an  inquiry  into  all 
Bridgeport  v.  Housatonuc  R.  Co,,  branches  of  the  municipal  service; 
15  Conn.  475;  Dodd  v.  City  of  Hart-  to  do  it  for  a  series  of  years,  and 
ford,  25  Conn.  232;  Colton  v.  Han-  in  advance,  is  to  attempt  to  foresee 
chett,  13  111.  615;  Brush  v.  .City  of  every  exigency  and  to  provide 
Carbondale,  78  111.  74;  Evansville,  against  every  contingency  that  may 
I.  &  C.  Straight  Line  R.  Co.  v.  City  arise  to  affect  the  public  necessi- 
of  Evansville,  15  Ind.  395;  Taylor  v.  ties." 

McFadden,  84   Iowa,   262;    Slack   v.  Boston   Safe-Deposit   &   T.    Co.   v. 

Maysville  &  L.  R.  Co.,  52  Ky.    (13  Salem  Water  Co.,  94  Fed.  238;  City 

B.   Mon.)    1;    City   of   Baltimore   v.  of   Fayetteville   v.    Carter,    52   Ark. 


198  POWERS.  §   HI 

circumstances,  judicial  tribunals  are  slow  to  act  unless  the  ele- 
ments above  indicated  clearly  and  manifestly  appear.  The  cor- 
rective and  restraining  influence  of  the  courts  can  also  be  invoked 
where  public  corporations  transcend  or  abuse  their  power  or 
threaten  to  do  so.  But  public  corporations  are  ordinarily  free  to 
transact  their  police,  administrative  and  local  discretionary  du- 
ties without  restraint  or  hindrance  by  the  judicial  or  other 
branches  of  the  state.41 

§  111.    Corporate  powers ;  their  extent  and  nature. 

However  ample  the  powers  of  a  public  corporation  may  be  as 
granted  by  the  sovereign,  and  whether  express,  incidental,  im- 
perative, or  discretionary,  the  corporation  can  never  be  author- 
ized to  interfere  with  or  deprive  persons  of  private,  property,  or 
personal  rights.42 

301;   City  of  Vincennes  v.  Citizens'  44  Iowa,  505;   City  of  St.  Joseph  v. 

Gas   Light   Co.,   132    Ind.   114;    Des  Farrell,  106  Mo.  437;  Aurora  Water 

Moines    Gas    Co.    v.    City    of    Des  Co.  v.  City  of  Aurora,  129  Mo.  540; 

Moines,   44    Iowa,    505.  New  York   &  H.  R.   Co.   v.   City  of 

Moses    v.    Risdon,    46    Iowa,    251.  Isew  York,  1  Hilt.   (N.  Y.)    562;    In 

"In    the    absence    of    actual    fraud,  re  Episcopal   School,  75   N.  Y.  324, 

courts    cannot    interfere    with    the  and  Rutherford  v.  Hamilton,  97  Mo. 

judgment    and    discretion    of    city  543. 

councils    in    determining   what    are       41  Garrison  v.  Chicago,  7  Biss.  480, 

and    what    are    not   suitable    rooms  Fed.    Gas.    5,255;     State    v.    Swear- 

for  the  purposes  of  the  city  and  its  ingen,    12    Ga.    23.     "Municipal   cor- 

officers."     State  v.  Board  of  Public  porations  are  the  germs  and  minia- 

Works   of   St.   Paul,   27   Minn.   442;  ture    models    of    free    government; 

State  v.  District  Ct.  of  Ramsey  Coun-  and  their  internal  police  and  admin- 

ty,  33  Minn.  295;   City  of  St.  Louis  istration    should   not  be   interfered 

v.  Weber,  44  Mo.   547;    City  of  St.  with   for  slight  causes;    not  unless 

Louis  v.  Boffinger,  19  Mo.  15;  Morse  some  great  right  has  been  withheld 

v.  Westport,  136  Mo.  276;  Cape  May  or    wrong    perpetrated."     Chambers 

&  S.  L.  R.  Co.  v.  City  of  Cape  May,  v.   City   of   St.   Louis,   29   Mo.    543; 

35   N.  J.    Eq.    (8    Stew.)    419;    Bab-  Phelps    v.    City    of    Watertown,    61 

cock   v.    City   of   Buffalo,   56   N.   Y.  Barb.     (N.     Y.)     121.      "Courts     of 

268;   Seitzinger  v.  Borough  of  Tarn-  equity  have  no  general  supervisory 

aqua,  187  Pa.  539;   Place  v.  City  of  power  over  the  government  of  mu- 

Providence,   12   R.   I.   1.  nicipal  corporations,  or  over  the  acts 

Courts  will  assume  that  municipal  and  proceedings  of  their  governing 

corporations    exercise    their    discre-  bodies." 

tionary    powers    properly,    in    good        42  Martin  v.  Roesch,  57  Ark.  474; 

faith  and  with  regularity.     See,  Des  State   v.    Gaines,   46   La.   Ann.    431, 

Moines  Gas  Co.  v.  City  of  Des  Moines,  15  So.  174;  Mitchell  v.  City  of  Rock- 


§  112 


IN  GENERAL. 


199 


§  112.    Their  delegation. 

The  powers  possessed  by  public  corporations  are  usually  gov- 
ernmental in  their  nature  and  when  granted  by  the  legislature 
cannot  be  delegated  by  the  corporation  to  others  for  their  dis- 
charge or  performance.43  It  must  exercise  the  functions  imposed 
upon  it  by  its  charter.  The  character  of  these  duties  and  the 
manner  of  their  performance  is  usually  specified  in  the  original 
grant  of  power.  This  rule  does  not  prevent  however  the  delega- 
tion of  the  performance  of  ministerial  duties.  The  law  recog- 
nizes the  clear  distinction  between  duties  or  powers  involving  the 
exercise  of  judgment  and  discretion  and  those  purely  mechan- 
ical, clerical  or  ministerial  in  their  character.4* 


land,  45  Me.  496;  Hyde  v.  City  of 
Newark,  28  N.  J.  Law  (4  Dutch.) 
529  r  People  v.  Coler,  166  N.  Y.  1. 

«  See,  also,  cases  cited  §  110,  note 
41.  The  principle  applied  in  Dil- 
lard  v.  Webb,  55  Ala.  468,  the  power 
to  appoint  pound  keepers  conferred 
by  the  statute  on  board  of  commis- 
sioners of  public  corporation,  not 
capable  of  delegation.  In  Smith  v. 
Morse,  2  Cal.  524,  it  is  held  that  the 
common  council  of  a  municipal  cor- 
poration has  no  power  to  create  a 
new  department  of  the  city  govern- 
ment to  divert  the  city's  revenues 
and  property.  City  of  Oakland  v. 
Carpentier,  13  Cal.  540;  Chase  v. 
City  Treasurer  of  City  &  County  of 
Los  Angeles,  122  Cal.  540,  55  Pac. 
414;  Knight  v.  City  of  Eureka,  123 
Cal.  192,  55  Pac.  768. 

In  Gundling  v.  City  of  Chicago, 
176  111.  340,  the  discretionary  power 
in  the  issue  of  a  license  by  the  may- 
or held  not  to  be  a  delegation  of  the 
power  of  the  city  council  to  license 
tne  sale  of  cigarettes.  People  v.  Mc- 
Wethy,  177  111.  334,  the  city  coun- 
cil have  no  authority  to  delegate  its 
power  over  the  construction  of  sew- 
ers to  a  committee  and  the  city  en- 
gineer. Naegle  v.  City  of  Centralia, 


81  111.  App.  334,  the  municipal  au- 
thority to  license  cannot  be  delegat- 
ed by  the  board  of  aldermen  to  the 
mayor.  Town  of  Macon  v.  Patty, 
57  Miss.  378,  the  power  to  determine 
the  condition  of  sidewalks  as  vested 
in  the  board  of  mayor  and  aldermen 
cannot  be  by  them  delegated  to  street 
committeemen.  Ayres  v.  Schmohl, 
86  Mo.  App.  349,  the  time  within 
which  certain  public  work  should  be 
done  is  held  in  this  case  to  be  a 
legislative  function  incapable  of 
delegation.  Ecroyd  v.  Coggeshall, 
21  R.  I.  1,  41  Atl.  260,  a  resolution 
of  the  city  council  leaving  to  the 
city  solicitor  the  approval  of  a  deed 
conveying  land  purchased  by  the 
city  not  a  delegation  of  the  council's 
power  to  purchase  land.  Whyte  v. 
City  of  Nashville,  32  Tenn.  (2 
Swan)  364.  Principle  not  applied: 
In  Hitchcock  v.  City  of  Galveston, 
96  U.  S.  341,  principle  not  applied 
to  power  vested  in  the  city  council 
to  order  the  construction  of  side- 
walks. Covington  v.  City  of  East 
St.  Louis,  78  111.  548,  the  general  as- 
sembly of  Illinois,  under  constitu- 
tion of  1870,  can  delegate  authority 
to  municipal  governments  in  cities. 
**  Hitchcock  v.  City  of  Galveston, 


200  POWERS.  §   113 

§  113.    Rules  of  construction. 

It  is  seldom  that  a  rule  other  than  that  of  strict  construction 
is  applied  or  should  be  applied  to  powers,  of  whatever  nature, 
exercised  or  attempted  to  be  exercised,  by  a  public  corporation. 
The  reason  for  this  salutary  principle  is  that  a  public  corporation 
is  organized  not  for  the  personal  pecuniary  gain  or  profit  of  its 
members,  but  as  an  agency  of  the  government,  for  the  exercise  of 
governmental  powers  and  for  the  better  performance  of  the  du- 
ties which  every  good  government  owes  to  those  within  its  juris- 
diction. The  charter  of  the  corporation  contains  the  grant  of  its 
powers,  and  powers,  rights  and  privileges  should  not  be  read  into 
this  charter  by  judicial  construction  or  interpretation.  As  Chief 
Justice  Shaw  said:45  "They  can  exercise  no  powers  but  those 
which  are  conferred  upon  them  by  the  act  by  which  they  are  con- 
stituted, or  such  as  are  necessary  to  the  exercise  of  their  corpo- 
rate powers,  the  performance  of  their  corporate  duties,  and  the 
accomplishment  of  the  purposes  of  their  association.  The  prin- 
ciple is  fairly  derived  from  the  nature  of  corporations,  and  the 
mode  in  which  they  are  organized  and  in  which  their  affairs  must 
be  conducted."  Any  ambiguity  or  doubt,  if  such  exist,  must  be 
construed  or  resolved  in  favor  of  the  public  and  as  against  the 
exercise,  usually  through  irresponsible  agents,  of  the  power  by 
the  corporation.48  The  strict  rule  of  construction  does  not  apply 

96  U.  S.  341;  Haughawout  v.  Hub-  used  by  the  legislature  must  be  re- 
bard,  131  Cal.  675;  Gillett  v.  Logan  solved  in  favor  of  the  public." 
County  Sup'rs,  67  111.  256;  City  of  State  v.  Smith,  67  Conn.  541;  Lo- 
Burlington  v.  Dennison,  42  N.  J.  gan  v.  Pyne,  43  Iowa,  524;  Leonard 
Law,  165;  Town  of  Harrisonburg  v.  v.  City  of  Canton,  35  Miss.  189;  Col- 
Roller,  97  Va.  582;  Dances  v.  Town  lins  v.  Hatch,  18  Ohio,  523;  Heeney 
of  Mannington,  50  W.  Va.  322.  v.  Sprague,  11  R.  I.  456. 

45Spaulding  v.  City  of  Lowell,  40  *6  Ottawa  v.  Carey,  108  U.  S.  110; 

Mass.  (23  Pick.)   71.     See,  also,  the  City   of   Detroit  v.   Detroit  City   R. 

following   cases:      Thomson   v.   Lee  Co.,  56  Fed.  867;   City  of  Ft.  Scott 

County,    70    U.    S.     (3    Wall.)    327,  v.   Eads  Brokerage  Co.    (C.   C.   A.) 

where  the   court  holds   that  a  mu-  117    Fed.    51;    Douglass   v.   City    of 

nicipal  corporation  "can  exercise  no  Placerville,    18    Cal.    643;    Glass    v. 

power  which  is  not.  in  express  terms  Ashbury,    49    Cal.    571;    Thomas    v. 

or    by    fair    implication,    conferred  City    of    Grand    Junction,    13    Colo, 

upon    it."      Minturn    v.    Lame,    23  App.  80,  56  Pac.  665;  Crofut  v.  City 

How.    (U.    S.)    435,    where    Justice  of  Danbury,  65  Conn.  294;  Ex  parte 

Nelson   here   said,    "Any   ambiguity  Sims,  40  Fla.  432,  25  So.  280.    Prin- 

or  doubt  arising  out  of  the   terms  ciple  applied  to  authority  to  impose 


§  114  IN  GENERAL.  201 

as  a  general  rule  of  law  to  private  corporations,  the  reason  being 
that  they  are  organized  for  the  personal  gain  of  the  members. 
Property  is  not  acquired  through  the  levy  of  taxes  but  by  or 
through  the  contribution  of  personal  and  private  funds  over 
which  the  state  has  no  direct  control.  If  an  injury  or  a  loss 
results  to  or  a  debt  is  laid  upon  a  private  corporation  through 
the  exercise  of  a  doubtful  or  ambiguous  power,  that  loss,  in- 
jury or  burden  is  sustained  by  private  promoters.  If,  on  the 
other  hand,  a  public  corporation  exercises  an  ambiguous  or  a 
doubtful  power,  resulting  in  an  oppressive  debt,  an  injury  or  loss 
to  public  property,  or  an  increase  in  taxation,  it  is  the  community 
at  large,  the  property  interests,  that  must  sustain  and  bear  the 
loss  and  burden.  Therefore,  to  repeat,  the  rule  of  strict  con- 
struction applies,  and  every  doubt  in  the  construction  of  a  power 
granted  is  against  its  exercise  and  in  favor  of  the  tax-paying 
public. 

§  114.    Rule  of  strict  construction ;  how  modified. 

The  rule  of  strict  construction  as  given  in  the  preceding  sec- 
tion is  occasionally  modified.  The  courts  hold  that  the  rule 
should  not  be  carried  to  such  an  extent  as  to  defeat  the  very 
purpose  for  which  the  power  was  granted,  if  proper  to  be  exer- 
cised, and  that  where  it  is  necessary  to  adopt  a  more  liberal  rule 

license  taxes.     Agnew  v.  Brail,  124  like  all  such  jurisdictions,  it  must 

111.  312;  Clark  v.  City  of  Davenport,  be  confined  to  the  subjects  specially 

14    Iowa,    494;    Logan   v.    Pyne,    43  enumerated."      Knapp     v.      Kansas 

Iowa,      524;       First      Presbyterian  City,  48  Mo.  App.  485;   City  of  Jop- 

Church   v.    City   of   Ft.    Wayne,   36  lin  v.  Leckie,  78  Mo.  App.  8;   State 

Ind.    338;    Neumeyer  v.   Krakel,   23  v.    Moores,    55    Neb.    480;    State    v. 

Ky.  L.   R.  190,   62  S.  W.  518;    City  Town  of  Union,  33  N.  J.  Law,  350; 

of    Somerville    v.    Dickerman,    127  Meday   v.    Borough    of   Rutherford, 

Mass.    272;     Bank    of    Michigan    v.  65  N.  J.  Law,  645;  Parker  v.  Baker, 

Niles,  1  Doug.  (Mich.)  401;  City  of  1  Clark  Ch.   (N.  Y.)   223;   People  v. 

St.  Paul  v.  Laidler,  2  Minn.  190  (Gil.  Ham,  32  Misc.   517,  66  N.  Y.  Supp. 

159);  Leonard  v.  City  of  Canton,  35  264;   State  v.  Webber,  107  N.  C.  962; 

Miss.    189.     Where    the    court    say,  Appeal  of  Whelan,  108  Pa.  162;  Caro- 

"The   power    of   the   corporation    is  lina  Nat.   Bank   v.    State,   60    S.   C. 

merely  something  added,  as  to  the  465,   38   S.   E.   629;    Lesley  v.   Kite, 

particular    locality,    to    the    general  192    Pa.    268;    Kirkham   v.    Russell, 

powers  of  government;  or,  in  other  76  Va.   956;    City  of  Winchester  v. 

words,    it   is    a   special   jurisdiction  Redmond,   03   Va.  711;    Richards  v. 

created   for   specified  purposes,  and  Clarksburg,   30   W.   Va.   491;    Quint 


202 


POWERS. 


115 


of  construction  of  a  corporate  power  to  accomplish  the  result 
sought  by  the  legislature,  it  should  be  done.47 


II.  THE  POLICE   POWEB. 


115.    Definitions. 


Government  should  have  for  its  end  the  welfare,  convenience 
and  advantage  of  the  people,  and  the  advancement  of  all  their 
material,  intellectual  and  moral  interests.  One  of  its  important 
objects,  if  not  the  most  important,  is  the  protection  and  preser- 
vation of  life  and  limb  and  the  property  and  good  morals  of  the 
public. 


v.  City  of  Merrill,  105  Wis.  406. 
The  rule  also  applies  to  the  mode, 
when  prescribed  by  statute,  of  the 
exercise  of  powers.  Zottman  v.  City 
and  County  of  San  Francisco,  20 
Cal.  96. 

47  City  of  Bridgeport  v.  Housa- 
tonic  R.  Co.,  15  Conn.  475;  Smith  v. 
City  of  Madison,  7  Ind.  86.  "The 
strictness  then  to  be  observed  in  giv- 
ing construction  to  municipal  char- 
ters should  be  such  as  to  carry  into 
effect  every  power  clearly  intended 
to  be  conferred  on  the  municipality, 
and  every  power  necessarily  implied, 
in  order  to  the  complete  exercise  of 
the  powers  granted."  Kyle  v.  Ma- 
lin,  8  Ind.  34;  Cochrane  v.  City  of 
Frostburg,  81  Md.  54.  In  City  of 
Port  Huron  v.  McCall,  46  Mich.  565, 
it  is  held  that  the  reason  for  the 
rule  of  strict  construction  does  not 
apply  where  the  power  granted  re- 
lates merely  to  a  change  in  the  form 
of  municipal  indebtedness.  The  court 
in  its  opinion  by  Justice  Cooley 
said:  "There  is  a  principle  of  law 
that  municipal  powers  are  to  be 
strictly  interpreted  and  it  is  a  just 
and  wise  rule.  Municipalities  are 
to  take  nothing  from  the  general 
sovereignty  except  what  is  express- 
ly granted.  But  when  a  power  is 
conferred  which  in  its  exercise  con- 


cerns only  the  municipality  and  can 
wrong  or  injure  no  one,  there  is  not 
the  slightest  reason  for  any  strict 
or  literal  interpretation  with  a  view 
of  narrowing  its  construction.  If 
the  parties  concerned  have  adopted 
a  particular  construction  not  mani- 
festly erroneous  and  which  wrongs 
no  one,  and  the  state  is  in  no  man- 
ner concerned,  the  construction 
ought  to  stand.  That  is  good  sense, 
and  it  is  the  application  of  correct 
principles  in  municipal  affairs." 
State  v.  Walbridge,  119  Mo.  383. 
Gregory  v.  City  of  New  York,  40 
N.  Y.  273.  "The  importance  of  sus- 
taining that  board,  in  all  lawful 
measures,  tending  to  secure  or  pro- 
mote the  health  of  the  city,  should 
make  us  cautious  in  declaring  any 
curtailment  of  their  authority,  ex- 
cept upon  clear  grounds.  On  the 
contrary,  powers  conferred  for  so 
greatly  needed  and  most  useful  pur- 
poses, should  receive  a  liberal  con- 
struction for  the  advancement  of 
the  ends  for  which  they  were  be- 
stowed." East  Tennessee  University 
v.  City  of  Knoxville,  65  Term.  (6 
Baxt.)  166;  Ex  parte  Gregory,  20 
Tex.  App.  210;  Ex  parte  Garza,  28 
Tex.  App.  381;  Brennan  v.  City  of 
Weatherford,  53  Tex.  330. 


§  115 


POLICE  POWER. 


203 


That  particular  and  inherent  power  of  the  state  which  has  for 
its  purpose  the  accomplishment  of  these  results  is  termed  the 
police  power.  It  includes  and  comprehends  within  its  exercise 
all  those  general  laws  and  internal  regulations  which  are  neces- 
sary to  secure  the  peace,  good  order,  health  and  comfort  of  so- 
ciety.48 It  is  that  power  of  the  state  more  than  all  others  which 


48  Gibbons  v.  Ogden,  9  Wheat.  (U. 
S.)  203.  In  the  Slaughter  House 
Cases,  83  U.  S.  (16  Wall.)  36,  62, 
in  the  opinion  written  by  Mr.  Jus- 
tice Miller,  it  was  said  in  speaking 
of  the  police  power:  "This  is  called 
the  police  power;  and  it  is  declared 
by  Chief  Justice  Shaw  (Com.  v. 
Alger,  61  Mass.  [7  Gush.]  84),  that 
it  is  much  easier  to  perceive  and  re- 
alize the  existence  and  sources  of 
it  than  to  mark  its  boundaries,  or 
prescribe  limits  to  its  exercise.  This 
power  is  and  must  be,  from  its  very 
nature,  incapable  of  any  very  exact 
definition  or  limitation.  Upon  it  de- 
pends the  security  of  social  order, 
the  life  and  health  of  the  citizen, 
the  comfort  of  an  existence  in  a 
thickly  populated  community,  the 
enjoyment  of  social  and  private  life, 
and  the  beneficial  use  of  property." 
Munn  v.  State  of  Illinois,  94  U.  S. 
113. 

Boston  Beer  Co.  v.  State  of  Massa- 
chusetts, 97  U.  S.  25.  "If  the  public 
safety  or  the  public  morals  require 
the  discontinuance  of  any  manufac- 
ture or  traffic  the  hand  of  the  legis- 
lature cannot  be  stayed  from  provid- 
ing for  its  discontinuance  by  any 
incidental  inconvenience  which  in- 
dividuals or  corporations  may  suf- 
fer. All  rights  are  held  subject  to 
the  police  power  of  the  state.  We 
do  not  mean  to  say  that  property 
actually  in  existence  and  in  which 
the  right  of  the  owner  has  become 
vested  may  be  taken  for  the  public 
good  without  due  compensation." 


Stone  v.  State  of  Mississippi,  101 
U.  S.  814,  818.  "Many  attempts  have 
been  made  in  this  court  and  else- 
where to  define  the  police  power  but 
never  with  entire  success.  It  is  al- 
ways easier  to  determine  whether 
a  particular  case  come  within  the 
general  scope  of  the  power  than  to 
give  an  abstract  definition  of  the 
power  itself,  which  will  be  in  all 
respects  accurate.  No  one  denies, 
however,  that  it  extends  to  all  mat- 
ters affecting  the  public  health  or 
the  public  morals.  Neither  can  it 
be  denied  that  lotteries  are  proper 
subjects  for  the  proper  exercise  of 
this  power."  Barbier  v.  Connolly, 
113  U.  S.  31;  In  re  Morgan,  26  Colo. 
415. 

New  Orleans  Gas  Light  Co.  v. 
Hart,  40  La.  Ann.  474.  "It  may  be 
said  to  be  the  right  of  a  state  or  of 
a  state  functionary,  to  prescribe  reg- 
ulations for  the  good  order,  peace, 
protection,  comfort  and  convenience 
of  the  community  which  do  not  en- 
croach on  the  like  power  vested  in 
congress  by  the  Federal  constitu- 
tion. Of  that  power  it  may  well 
be  said  that  it  is  known  when  and 
where  it  begins  but  not  when  and 
where  it  terminates.  It  is  a  power 
in  the  exercise  of  which  a  man's 
property  may  be  taken  from  him, 
where  his  liberty  may  be  shackled 
and  his  person  exposed  to  destruc- 
tion in  cases  of  great  public  exi- 
gencies." 

Com.  v.  Bearse,  132  Ma?s.  542; 
State  v.  xopp,  97  N.  C.  477.  "It 


204 


POWERS. 


§  115 


affects  most  intimately  the  private  and  personal  interests  and  re- 
lations of  each  individual.     It  is  to  a  certain  extent  an  indefin- 


is  founded  very  largely  on  the  max- 
im sic  utere  tuo  ut  alienum  non 
laedas  and  also  to  some  extent,  that 
other  maxim  of  public  policy  salus 
populi  suprema  lex  and  it  is  of  al- 
most universal  application  in  regu- 
lating the  interests  of  society  within 
the  jurisdiction  of  the  state.  It  is 
too  well  established  to  admit  of 
serious  question  that  every  person 
is'  subject  to  it  in  his  person  and 
property." 

Stehmeyer  v.  City  of  Charleston, 
53  S.  C.  259;  Lacey  v.  Palmer,  93 
Va.  159.  See,  also,  Tiedeman,  State 
&  Fed.  Control  of  Persons  &  Prop- 
erty, §  1  et  seq.,  and  Lawton  v. 
Steele,  152  U.  S.  133.  "The  extent 
and  limit  of  what  is  known  as  the 
police  power  have  been  a  fruitful 
subject  of  discussion  in  the  appel- 
late courts  of  nearly  every  state  in 
the  Union.  It  is  universally  conced- 
ed to  include  everything  essential 
to  the  public  safety,  health  and  mor- 
als, and  to  justify  the  destruction 
or  abatement  by  summary  proceed- 
ings, of  whatever  may  be  regarded 
as  a  public  nuisance." 

Ex  parte  Jentzsch,  112  Cal.  468; 
Town  of  Lake  View  v.  Rose  Hill 
Cemetery  Co.,  70  111.  192;  Deems  v. 
City  of  Baltimore,  80  Md.  164;  State 
v.  Noyes,  47  Me.  189;  Com.  v.  Alger, 
61  Mass.  (7  Gush.)  53,  85.  In  the 
opinion  of  Chief  Justice  Shaw,  it 
was  said:  "Rights  of  property  like 
all  other  social  and  conventional 
rights  are  subject  to  such  reason- 
able limitations  in  their  enjoyment 
as  shall  prevent  them  from  being 
injurious  and  to  such  reasonable 
restraints  and  regulations  estab- 
lished by  law  as  the  legislature  un- 
der the  governing  and  controlling 


power  vested  in  them  by  the  consti- 
tution may  think  necessary  and  ex- 
pedient. *  *  *  The  power  we  al- 
lude to  is  rather  the  police  power, 
the  power  vested  in  the  legislature 
by  the  constitution,  to  make,  ordain 
and  establish  all  maner  of  whole- 
some and  reasonable  laws,  statutes 
and  ordinances,  either  with  penal- 
ties or  without,  not  repugnant  to 
the  constitution,  as  they  shall  judge 
to  be  for  the  good  and  welfare  of 
the  commonwealth,  and  of  the  sub- 
jects of  the  same.  It  is  much  easier 
to  perceive  and  realize  the  existence 
and  sources  of  this  power,  than  to 
mark  its  boundaries,  or  prescribe 
limits  to  its  exercise.  There  are 
many  cases  in  which  such  a  power 
is  exercised  by  all  well-ordered  gov- 
ernments, and  where  its  fitness  is 
so  obvious,  that  all  well-regulated 
minds  will  regard  it  as  reasonable." 

Hale  v.  Lawrence,  21  N.  J.  Law 
(1  Zab.)  714;  Id.,  23  N.  J.  Law  (3 
Zab.)  590;  Muhlenbrinck  v.  Long 
Branch  Com'rs,  42  N.  J.  Law,  364; 
City  of  New  York  v.  Second  Ave. 
R.  Co.,  32  N.  Y.  261;  People  v.  War- 
den of  City  Prison,  157  N.  Y.  116; 
State  v.  Covington,  29  Ohio  St.  102. 

Thorpe  v.  Rutland  &  B.  R.  Co.,  27 
Vt.  150.  The  police  power  extends 
"to  the  protection  of  the  lives,  limbs, 
health,  comfort  and  quiet  of  all  per- 
sons and  a  protection  of  all  prop- 
erty within  the  state;  *  *  *  and 
persons  and  property  are  subjected 
to  all  kinds  of  restraints  and  bur- 
dens, in  order  to  secure  the  general 
comfort,  health,  and  prosperity  of 
the  state." 

Wisconsin  Keeley  Institute  Co.  v. 
Milwaukee  County,  95  Wis.  153,  70 
N.  W.  68.  A  law  providing  for  the 


S  115 


POLICE  POWER. 


205 


able  power  and  the  limits  of  its  exercise  are  never  clearly  estab- 
lished ;  no  general  principle  of  law  can  be  stated  which  will  even 
with  reasonable  accuracy  define  its  application  or  its  exercise. 
Certain  purposes  or  certain  results  are  to  be  accomplished  by 
the  state ;  a  certain  exigency  arises  affecting  the  peace,  the  health, 
or  the  comfort  of  society;  and  to  the  legislature  directly  or  as 
it  may  lawfully  delegate  the  power  is  given  the  large  discretion 
of  passing  such  measures  as  are  necessary  to  effect  the  desired 
result,  restricted  only  by  constitutional  limitations.  What  may 
be  necessary  and  proper  to  accomplish  this  result  at  one  time 
may  be  unnecessary  and  improper  at  another.  The  exercise  of 
the  power  belongs  properly  to  the  law-making  or  legislative 
branch  of  the  sovereign,  and  it  is  not  within  the  power  of  any 
court  to  prescribe  or  say  what  rules  and  regulations  are  needful 
or  necessary  to  the  peace,  health,  safety  and  morals  of  the  state. 
The  power  belongs  to  the  legislature  to  be  exercised  within  con- 
stitutional limitations.48 


treatment  of  habitual  drunkards  in 
a  private  institution  'at  the  expense 
of  the  county  not  a  legitimate  exer- 
cise of  the  police  powers  of  the  state. 

4  Bl.  Comm.  162,  where  Black- 
stone  defines  the  police  power  to  be 
"The  due  regulation  and  domestic 
order  of  the  kingdom,  whereby  the 
inhabitants  of  the  state  like  mem- 
bers of  a  well  governed  family  are 
bound  to  conform  their  general  be- 
havior to  the  rules  of  propriety, 
good  neighborhood  and  good  man- 
ners and  to  be  decent,  industrious 
and  inoffensive  in  their  respective 
stations." 

Cooley,  Const.  Lim.  829,  Judge 
Cooley  in  discussing  the  question 
states,  "The  police  of  a  state  in  a 
comprehensive  sense  embraces  its 
whole  system  of  internal  regulation 
by  which  the  state  seeks  not  only  to 
preserve  the  public  order  and  to 
prevent  offenses  against  the  state, 
^ut  also  to  establish  for  the  inter- 
course of  citizens  with  citizens  those 
rules  of  good  manners  and  good 


neighborhood  which  are  calculated 
to  prevent  a  conflict  of  rights  and  to 
insure  to  each  the  uninterrupted  en- 
joyment of  his  own  so  far  as  is  rea- 
sonably consistent  with  a  like  en- 
joyment of  rights  by  others." 

4»  Luther  v.  Borden,  7  How.  (U. 
S.)  1.  The  state  in  this  case  was 
held  to  have  the  power  to  determine 
for  itself  to  what  extent  the  mili- 
tary power  was  necessary  to  quell 
an  armed  insurrection.  Hannibal  & 
St.  J.  R.  Co.  v.  Husen,  95  U.  S.  471; 
Mugler  v.  State  of  Kansas,  123  U. 
S.  623;  State  of  Arkansas  v.  Kan- 
sas &  T.  Coal  Co.,  96  Fed.  353;  Dor- 
man  v.  State,  34  Ala.  232;  Fife  v. 
State,  31  Ark.  455;  State  v.  Wheel- 
er, 25  Conn.  290;  People  v.  Gillson, 
109  N.  Y.  389,  17  N.  E.  343;  Pow- 
ell v.  Com.,  114  Pa.  265. 

Calder  v.  Bull,  3  Ball.  (U.  S.) 
386.  where  Justice  Chase  in  discuss- 
ing the  power  of  the  state  legis- 
lature says:  "I  cannot  subscribe  to 
the  omnipotence  of  the  state  legis- 
lature, or  that  it  is  absolute  and 


206 


POWERS. 


115 


It  is  our  theory  of  government  that,  controlled  only  by  con- 
stitutional provisions,  its  three  great  branches,  the  executive, 
judicial  and  legislative,  are  co-ordinate  and  co-equal.  It  is  within 


without  control,  although  its  author- 
ity should  not  be  expressly  re- 
strained by  the  constitution,  or 
fundamental  law  of  the  state.  The 
people  of  the  United  States  erected 
their  constitutions,  or  forms  of  gov- 
ernment, to  establish  justice,  to  pro- 
mote the  general  welfare,  to  secure 
the  blessings  of  liberty;  and  to  pro- 
tect their  persons  and  property  from 
violence.  The  purposes  for  which 
men  enter  into  society  will  deter- 
mine the  nature  and  terms  of  the 
social  compact;  and  as  they  are  the 
foundation  of  the  legislative  power, 
they  will  decide  what  are  the  proper 
objects  of  it.  The  nature  and  ends 
of  legislative  power  wiM  limit  the 
exercise  of  it.  This  fundamental 
principle  flows  from  the  very  nature 
of  our  free  republican  governments, 
that  no  man  should  be  compelled  to 
do  what  the  laws  do  not  require,  nor 
to  refrain  from  acts  which  the  laws 
permit.  There  are  acts  which  the 
federal  or  state  legislature  cannot 
do,  without  exceeding  their  author- 
ity. There  are  certain  vital  prin- 
ciples in  our  free  republican  govern- 
ments, which  will  determine  and 
overrule  an  apparent  and  flagrant 
abusive  of  legislative  power;  as  to 
authorize  manifest  injustice  by  pos- 
itive law;  or  to  take  away  that  se- 
curity for  personal  liberty,  or  pri- 
vate property,  for  the  protection 
whereof  the  government  was  estab- 
lished. An  act  of  the  legislature 
(for  I  cannot  call  it  a  law)  contrary 
to  the  great  first  principles  of  the 
social  compact,  cannot  be  considered 
a  rightful  exercise  of  the  legislative 
authority.  The  obligation  of  a  law 
in  governments  established  on  ex- 


press compact,  and  on  republican 
principles,  must  be  determined  by 
the  nature  of  the  power  on  which  it 
is  founded.  A  few  instances  will 
suffice  to  explain  what  I  mean.  A 
law  that  punished  a  citizen  for  an 
innocent  action,  or,  in  other  words, 
for  an  act,  which,  when  done,  was 
in  violation  of  no  existing  law;  a 
law  that  destroys,  or  impairs,  the 
lawful  private  contracts  of  citizens; 
a  law  that  makes  a  man  a  judge  of 
his  own  cause;  or  a  law  that  takes 
property  from  A  and  gives  it  to  B. 
It  is  against  all  reason  and  justice 
for  a  people  to  entrust  a  legislature 
with  such  powers;  and  therefore, 
it  cannot  be  presumed  that  they 
have  done  it.  The  genius,  the  na- 
ture, and  the  spirit  of  our  state 
governments,  amount  to  a  prohibi- 
tion of  such  acts  of  legislation;  and 
the  general  principles  of  law  and 
reason  forbid  them.  The  legisla- 
ture may  enjoin,  permit,  forbid  and 
punish;  they  may  declare  new 
crimes,  and  establish  rules  of  con- 
duct for  all  its  citizens  in  future 
cases;  they  may  command  what  is 
right,  and  prohibit  what  is  wrong; 
but  they  cannot  change  innocence 
into  guilt;  or  punish  innocence  as 
a  crime;  or  violate  the  right  of  an 
antecedent  lawful  private  contract; 
or  the  right  of  private  property. 
To  maintain  that  our  federal  or 
state  legislature  possesses  such  pow- 
ers if  they  had  not  been  expressly 
restrained,  would,  in  my  opinion, 
be  a  political  heresy  altogether  in- 
admissible in  our  free  republican 
governments."  But  see  the  case  of 
Bertholf  v.  O'Reilly,  74  N.  Y.  509. 
"The  question  whether  the  act  un- 


115 


POLICE  POWER. 


207 


the  power  as  well  as  the  discretion  of  the  law-making  branch  to 
determine  what  rules  and  regulations  are  best  calculated  to  ac- 
complish the  great  results  comprehended  and  included  within  the 
exercise  of  the  police  power.  As  was  said  by  the  court  in  an 
Ohio  case:50  "The  making  of  laws  is  committed  to  the  general 


der  consideration  was  a  valid  exer- 
cise of  the  legislative  power  is  to 
be  determined  solely  by  reference 
to  the  constitutional  restraints  and 
prohibitions.  The  legislative  power 
has  no  other  limitation.  If  an  act 
can  stand  when  brought  to  the  test 
of  the  constitution,  the  question  of 
its  validity  is  at  an  end  and  neither 
the  executive  nor  judicial  depart- 
ment of  the  government  can  refuse 
to  recognize  or  enforce  it.  The  the- 
ory that  laws  may  be  declared  void 
when  deemed  to  be  opposed  to  nat- 
ural justice  and  equity,  although 
they  do  not  violate  any  constitu- 
tional provision,  has  some  support 
in  the  dicta  of  learned  judges,  but 
has  not  been  approved,  so  far  as  we 
know,  by  any  authoritative  adjudi- 
cation, and  is  repudiated  by  numer- 
ous authorities." 

Lawton  v.  Steele,  152  U.  S.  133. 
''Beyond  this,  however,  the  state 
may  interfere  wherever  the  public 
interests  demand  it,  and  in  this  par- 
ticular a  large  discretion  is  neces- 
sarily vested  in  the  legislature  to 
determine  not  only  what  the  inter- 
ests of  the  public  require,  but  what 
measures  are  necessary  for  the  pro- 
tection of  such  interests.  To  justify 
the  state  in  thus  interposing  its  au- 
thority in  behalf  of  the  public,  it 
must  appear,  first,  that  the  interests 
of  the  public  generally  as  distin- 
guished from  those  of  a  particular 
class,  require  such  interference; 
and,  second,  that  the  means  are  rea- 
sonably necessary  for  the  accomp- 
lishment of  the  purpose,  and  not  un- 


duly oppressive  upon  individuals. 
The  legislature  may  not,  under  the 
guise  of  protecting  the  public  in- 
terests, arbitrarily  interfere  with 
private  business  or  impose  unusual 
and  unnecessary  restrictions  upon 
lawful  occupations.  In  other  words, 
its  determination  as  to  what  is  a 
proper  exercise  of  its  police  powers, 
is  not  final  or  conclusive,  but  is  sub- 
ject to  the  supervision  of  the 
courts." 

soAdler  v.  Whitbeck,  44  Ohio  St. 
539,  562.  But  Chief  Justice  Mar- 
shall in  Marbury  v.  Madison,  1 
Cranch  (U.  S.)  177,  said:  "If  an 
act  of  the  legislature,  repugnant  to 
the  constitution,  is  void,  does  it, 
notwithstanding  its  invalidity,  bind 
the  courts,  and  oblige  them  to  give 
it  effect?  Or,  in  other  words,  though 
It  be  not  law,  does  it  constitute  a 
rule  as  operative  as  if  it  was  a  law? 
This  would  be  to  overthrow  in  fact 
what  was  established  in  theory;  and 
would  seem  at  first  view,  an  absurdi- 
ty too  gross  to  be  insisted  on.  It 
shall  however,  receive  a  more  at- 
tentive consideration. 

"It  is  emphatically  the  province 
and  duty  of  the  judicial  department 
to  say  what  the  law  is.  Those  who 
apply  the  rule  to  particular  cases, 
must  of  necessity  expound  and  in- 
terpret that  rule.  If  two  laws  con- 
flict with  each  other,  the  courts  must 
decide  on  the  operation  of  each. 

"So  if  the  law  be  in  opposition  to 
the  constitution;  if  both  the  law  and 
the  constitution  apply  to  a  particu- 
lar case,  so  that  the  court  must 


208 


POWERS. 


115 


assembly;  it  is  the  judge  of  the  wisdom  and  policy  of  all  its  en- 
actments, and  no  court  has  the  right  to  overrule  its  judgment, 
even  as  to  the  extent  of  its  own  powers,  unless  it  has  clearly 
and  beyond  doubt  exceeded  the  legislative  functions  with  which 
it  is  invested  by  the  constitution.  This  is  so  generally  recognized 
as  true  as  to  be  regarded  as  axiomatic  upon  all  questions  as  to 
the  power  of  a  legislature  to  enact  a  given  law." 

The  state  has  the  power  to  select  its  agent  for  exercising  the 
police  power  or  the  manner  in  which  it  itself  shall  do  this.  It 
is  clearly  constitutional  for  the  sovereign  to  delegate  to  a  sub- 
ordinate public  agency,  a  public  corporation,  the  right  to  exer- 
cise this  power,  and  it  has  been  suggested  in  some  cases  that  the 
power  exists  in  a  municipal  corporation  proper  independent  of 
any  express  delegation  of  the  same  by  the  state.51  It  follows, 


either  decide  that  case  conformably 
to  the  law,  disregarding  the  consti- 
tution; or  conformably  to  the  con- 
stitution, disregarding  the  law;  the 
court  must  determine  which  of  these 
conflicting  rules  govern  the  case. 
This  is  of  the  very  essence  of  judi- 
cial duty. 

"If  then,  the  courts  are  to  regard 
the  constitution,  and  the  constitu- 
tion is  superior  to  any  ordinary  act 
of  the  legislature,  the  constitution, 
and  not  such  ordinary  act,  must  gov- 
ern the  case  to  which  they  both  ap- 
ply. 

"Those,  then,  who  controvert  the 
principle  that  the  constitution  is  to 
be  considered,  in  court,  as  a  para- 
mount law,  are  reduced  to  the  neces- 
sity of  maintaining  that  courts  must 
close  their  eyes  on  the  constitution, 
and  see  only  the  law. 

"This  doctrine  would  subvert  the 
very  foundation  of  all  written  con- 
stitutions. It  would  declare  that  an 
act  which,  according  to  the  princi- 
ples and  theory  of  our  government, 
is  entirely  void,  is  yet,  in  practice, 
completely  obligatory.  It  would  de- 
clare that  if  the  legislature  shall  do 
what  is  expressly  forbidden,  such 


act,  notwithstanding  the  express 
prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature 
a  practical  and  real  omnipotence, 
with  the  same  breath  which  profess- 
es to  restrict  their  powers  within 
narrow  limits.  It  is  prescribing 
limits,  and  declaring  that  those  lim- 
its may  be  passed  at  pleasure."  And 
Mr.  Justice  Harlan  in  Mugler  v. 
State  of  Kansas,  123  U.  S.  623,  wrote: 
"The  courts  are  not  bound  by  mere 
forms,  nor  are  they  to  be  misled  by 
mere  pretenses.  They  are  at  liberty 
— indeed  they  are  under  a  solemn 
duty — to  look  at  the  substance  of 
things  whenever  they  enter  upon  the 
inquiry  whether  the  legislature  had 
transcended  the  limits  of  its  au- 
thority. If,  therefore,  a  statute  pur- 
porting to  have  been  enacted  to  pro- 
tect the  public  health,  the  public 
morals  or  the  public  safety,  has  no 
real  or  substantial  relations  to  those 
objects,  or  is  a  palpable  invasion  of 
rights  secured  by  the  fundamental 
law,  it  is  the  duty  of  the  court  to 
so  adjudge,  and  thereby  give  effect 
to  the  constitution." 

siKeilkopf  v.  City  of  Denver,  19 
Colo.  325;   State  v.  Try  on,  39  Conn. 


§  115 


POLICE  POWER. 


209 


as  this  is  a  governmental  power,  no  public  corporation,  not  even 
the  state  itself,  can  waive  or  bargain  away  the  right  to  exer- 
cise it.62 


183;  Morris  v.  City  of  Columbus,  102 
Ga.  792;  City  of  Spring  Valley  v. 
Spring  Valley  Coal  Co.,  71  111.  App. 
432;  McPherson  v.  Village  of  Che- 
banse,  114  111.  46;  Walker  v.  Jame- 
son, 140  Ind.  591;  Des  Moines  Gas 
Co.  v.  City  of  Des  Moines,  44  Iowa, 
505;  Com.  v.  Milton,  51  Ky.  (12  B. 
Mon.)  212;  State  v.  Parish  of  Or- 
leans Dist.  Judges,  35  La.  Ann.  .1075; 
Com.  v.  Plaisted,  148  Mass.  375; 
Boehm  v.  City  of  Baltimore,  61  Md. 
259;  People  v.  Hanrahan,  75  Mich. 
611;  City  of  St.  Paul  v.  Colter,  12 
Minn.  41  (Gil.  16) ;  State  v.  Cowan, 
29  Mo.  330;  Kerney  v.  Barber  Asphalt 
Pav.  Co.,  86  Mo.  App.  573;  Jackson 
v.  Kansas  City,  Ft.  S.  &  M.  R.  Co., 
157  Mo.  621;  State  v.  Noyes,  30  N.  H. 
279;  Chicago,  B.  &  Q.  R.  Co.  v.  State, 
47  Neb.  549;  Her  v.  Ross,  64  Neb. 
710,  90  N.  W.  869;  Village  of  Carth- 
age v.  Frederick,  122  N.  Y.  268;  State 
v.  Beacham,  125  N.  C.  652;  State  v. 
Hill,  126  N.  C.  1139;  Bliss  v.  Kraus, 
16  Ohio  St.  54;  Town  Council  of  Sum- 
merville  v.  Pressley,  33  S.  C.  56;  City 
of  Nashville  v.  Linck,  80  Tenn. 
499;  Judy  v.  Lashley,  50  W.  Va. 
628,  41  S.  E.  197.  A  city  charter  in 
this  case  held  to  contain  a  limita- 
tion upon  the  exercise  of  the  police 
power.  See,  also,  authorities  col- 
lected in  36  Century  Digest,  col- 
umns 1744  et  seq. 

52  Boyd  v.  State  of  Alabama,  94 
U.  S.  645;  Boston  Beer  Co.  v.  State 
of  Massachusetts,  97  U.  S.  25. 
"Whatever  differences  of  opinion 
may  exist  as  to  the  extent  and  boun- 
daries of  the  police  power,  and  how- 
ever difficult  it  may  be  to  render  a 
satisfactory  definition  of  it,  there 


seems  to  be  no  doubt  that  it  does 
extend  to  the  protection  of  the  lives, 
health  and  property  of  the  citizens, 
and  to  the  preservation  of  good  or- 
der and  the  public  morals.  The  leg- 
islature cannot,  by  any  contract  di- 
vest itself  of  the  power  to  provide 
for  these  objects.  They  belong  em- 
phatically to  that  class  of  objects 
which  demand  the  application  of  the 
maxim,  salus  populi  suprema  lex; 
and  they  are  to  be  attained  and  pro- 
vided for  by  such  appropriate  means 
as  the  legislative  discretion  may  de- 
vise. That  discretion  can  no  more 
be  bargained  away  than  the  power 
itself."  Northwestern  Fertilizing 
Co.  v.  Village  of  Hyde  Park,  97  U.  S. 
659.  In  Stone  v.  State  of  Mississippi, 
101  U.  S.  814,  the  court  said  by  Mr. 
Chief  Justice  Waite,  "All  agree  that 
the  legislature  cannot  bargain  away 
the  police  power  of  a  state.  'Irrev- 
ocable grants  of  property  and  fran- 
chises may  be  made  if  they  do  not 
impair  the  supreme  authority  to 
make  laws  for  the  right  government 
of  the  state,  but  no  legislature  can 
curtail  the  power  of  its  successors  to 
make  such  laws  as  they  may  deem 
proper  in  matters  of  police.'  *  *  * 
But  the  power  of  governing  is  a 
trust  committed  by  the  people  to  the 
government;  no  part  of  which  can 
be  granted  away.  The  people  in 
their  sovereign  capacity  have  estab- 
lished their  agencies  for  the  preser- 
vation of  the  public  health  and  the 
public  morals  and  the  protection  of 
public  and  private  rights.  These 
several  agencies  can  govern  accord- 
ing to  their  discretion  if  within  the 
scope  of  their  general  authority, 


Abb.  Corp.— 14. 


210 


POWERS. 


116 


g  116.    General  limitations  upon  its  exercise. 

The  police  power  has  for  its  purpose  the  accomplishment  of 
certain  desired  results  for  the  protection  of  society.  The  exer- 
cise of  the  power,  as  has  been  stated,  belongs  to  the  law-making 
branch  of  the  sovereign,  and  its  application  in  a  particular  in- 
stance is  a  matter  of  discretion.  A  general  limitation  upon  the 
exercise  of  the  power  by  the  state  is  that  the  regulations  or  the 
means  adopted  for  the  accomplishment  of  a  lawful  purpose  must 
have  this  for  their  sole  result  and  aim.  They  must,  as  the  courts 
have  said,  be  fit,  proper,  and  reasonable  means  for  exercising  the 
governmental  power.53 


while  in  power,  but  they  cannot  give 
away  nor  sell  the  discretion  of  those 
that  are  to  come  after  them,  in  re- 
spect to  matters,  the  government  of 
which,  from  the  very  nature  of 
things  must  'vary  with  varying  cir- 
cumstances.' *  *  *  Certainly  the 
right  to  suppress  them  (lotteries)  is 
governmental,  to  be  exercised  at  all 
times  by  those  in  power,  at  their 
discretion.  *  *  *  All  that  one  can 
get  by  such  a  charter  is  a  suspen- 
sion of  certain  governmental  rights 
in  his  favor,  subject  to  withdrawal 
at  will.  He  has  in  legal  effect  noth- 
ing more  than  a  license  to  enjoy  the 
privilege  on  the  terms  named  for  the 
specified  time,  unless  it  be  sooner 
abrogated  by  the  sovereign  power  of 
the  state." 

53  in  re  Wilshire,  103  Fed.  620;  In 
re  Jacobs,  98  N.  Y.  98.  In  its  opin- 
ion many  authorities  discussing  the 
nature  of  the  police  power  and  the 
limits  to  its  exercise  are  cited  and 
collated,  Earl,  Judge,  in  speaking 
of  the  particular  act  under  consid- 
eration, which  attempted  to  regulate 
the  manufacture  of  cigars  and  prep- 
aration of  tobacco  in  tenement 
houses,  said:  "Such  legislation 
may  invade  one  class  of  rights  to- 
day and  another  tomorrow,  and  if  it 
can  be  sanctioned  under  the  Consti- 


tution, while  far  removed  in  time 
we  will  not  be  far  away  in  practical 
statesmanship  from  those  ages  when 
governmental  prefects  supervised 
the  building  of  houses,  the  rearing 
of  cattle,  the  sowing  of  seed  and  the 
reaping  of  grain,  and  governmental 
ordinances  regulated  the  movements 
and  labor  of  artisans,  the  rate  of 
wages,  the  price  of  food,  the  diet  and 
clothing  of  the  people,  and  a  large 
range  of  other  affairs  long  since  in 
all  civilized  lands  regarded  as  out- 
side of  governmental  functions. 
Such  governmental  interferences  dis- 
turb the  normal  adjustments  of  the 
social  fabric,  and  usually  derange 
the  delicate  and  complicated  machin- 
ery of  industry  and  cause  a  score  of 
ills  while  attempting  the  removal  of 
one.  When  a  health  law  is  chal- 
lenged in  the  courts  as  unconstitu- 
tional on  the  ground  that  it  arbi- 
trarily interferes  with  personal  lib- 
erty and  private  property  without 
due  process  of  law,  the  courts  must 
be  able  to  see  that  it  has  at  least  in 
fact  some  relation  to  the  public 
health,  that  the  public  health  is 
the  end  actually  aimed  at,  and 
that  it  is  appropriate  and  adapt- 
ed to  that  end.  This  we  have  not 
been  able  to  see  in  this  law,  and  we 
must,  therefore,  pronounce  it  uncon- 


§  116 


POLICE  POWER. 


211 


The  state  cannot,  under  the  guise  of  the  police  power,  pass 
laws,  rules,  or  regulations  which  ostensibly  have  for  their  end 
or  purpose  the  comfort,  safety,  welfare  and  protection  of  society, 
but  which  are,  as  a  matter  of  fact,  passed  for  the  purpose  of  im- 
pairing or  destroying  private  rights  and  private  property,  or  at- 
tacking personal  interests.54 


Btitutional  and  void."  The  court 
also  said  in  discussing  the  police 
power.  "The  limit  of  the  power  can- 
not be  accurately  defined  and  the 
courts  have  not  been  able  or  willing 
definitely  to  circumscribe  it.  But 
the  power  however  broad  and  exten- 
sive, is  not  above  the  Constitution. 
When  it  speaks,  its  voice  must  be 
heeded.  It  furnishes  the  supreme 
law,  *  *  *  and  so  far  as  it  im- 
poses restraints  the  police  power 
must  be  exercised  in  subordination 
thereto.  *  *  *  Generally  it  is  for 
the  legislature  to  determine  what 
laws  and  regulations  are  needed  to 
protect  the  public  health  and  secure 
the  public  comfort  and  safety,  and 
while  its  measures  are  calculated, 
intended,  convenient  and  appropriate 
to  accomplish  these  ends,  the  exer- 
cise of  its  discretion  is  not  subject 
to  review  by  the  courts.  But  they 
must  have  some  relation  to  these 
ends.  Under  the  mere  guise  of  po- 
lice regulations,  personal  rights  and 
private  property  cannot  be  arbi- 
trarily invaded  and  the  determina- 
tion of  the  legislature  is  not  final  or 
conclusive.  If  it  passes  an  act  os- 
tensibly for  the  public  health,  and 
thereby  destroys  or  takes  away  the 
property  of  a  citizen  or  interferes 
with  his  personal  liberty,  then  it  is 
for  the  courts  to  scrutinize  the  act 
and  see  whether  it  really  relates  to 
and  is  convenient  and  appropriate 
to  promote  the  public  health."  See, 
also,  California  Reduction  Co.  v. 
Sanitary  Reduction  Works  (C.  C. 


A.)  126  Fed.  29,  where  the  question 
of  the  power  of  a  municipal  corpo- 
ration to  grant  an  exclusive  privi- 
lege for  the  collection  of  city  gar- 
bage was  fully  discussed  and  many 
authorities  cited.  See  quotation 
from  opinion,  §  137  post,  note  198. 

5*  Marbury  v.  Madison,  1  Cranch 
(U.  S.)  177.  See  quotation  from 
opinion  by  Chief  Justice  Marshall,  § 
115;  Yick  Wo  v.  Hopkins,  118  U.  S. 
356;  Lawton  v.  Steele,  152  U.  S.  133. 
"The  legislature  may  not  under  the 
guise  of  protecting  the  public  inter- 
ests arbitrarily  interfere  with  pri- 
vate business  or  impose  unusual  and 
unnecessary  restrictions  upon  lawful 
occupations."  See,  also,  quotation 
from  Judge  Chase  in  Calder  v.  Bull, 
3  Ball.  (U.  S.)  386,  §  115,  note 
49;  Philadelphia,  W.  &  B.  &  R.  Co. 
v.  Bowers,  4  Houst.  (Del.)  506; 
Town  of  Lake  View  v.  Rose  Hill 
Cemetery  Co.,  70  111.  191.  "The  po- 
lice power  of  the  state  is  co-exten- 
sive with  self-protection,  and  is  not 
inaptly  termed  'the  law  of  overrul- 
ing necessity.'  It  is  that  inherent 
and  plenary  power  in  the  state 
which  enables  it  to  prohibit  all 
things  hurtful  to  the  comfort,  safety 
and  welfare  of  society." 

State  v.  Judge  of  Section  "A,"  39 
La.  Ann.  132;  State  v.  Noyes,  47 
Me.  189.  "All  laws  for  the  protec- 
tion of  the  lives,  limbs,  health  and 
quiet  of  persons,  and  the  security 
of  all  property  within  the  state  fall 
within  this  general  power  of  the 
government." 


212 


POWERS. 


That  a  police  regulation  be  valid,  the  preservation  of  the  peace, 
comfort  and  morals  of  society  must  not  only  be  its  ulterior  pur- 
pose but  its  real  and  substantial  one.  In  some  cases  it  is  very 
difficult  to  determine  when  a  police  regulation  passes  the  divid- 
ing line  between  a  proper  exercise  of  the  police  power  and  an 
unwarranted  and  illegal  interference  with  personal  rights.55 

§  117.     Constitutional  limitations. 

All  constitutions  contain  provisions  having  for  their  purpose 
the  protection  of  those  rights  usually  enumerated  in  and  included 
within  what  may  be  technically  termed  a  bill  of  rights.  These 
constitute  the  principal  constitutional  limitations  upon  the  power 
of  the  state  to  exercise  the  police  power,  and  according  to  the 
standard  set  forth  in  these  provisions  will  be  measured  police 


Com.  v.  Brooks,  109  Mass.  355; 
People  v.  Jackson  &  M.  Plank  Road 
Co.,  9  Mich.  285.  "Powers,  the  ex- 
ercise of  which  can  only  be  justi- 
fied on  this  specific  ground  and 
which  would  otherwise  be  clearly 
prohibited  by  the  constitution  can  be 
such  only  as  are  so  clearly  necessary 
to  the  safety,  comfort  or  well  being 
of  society  or  so  imperatively  re- 
quired by  the  public  necessity  as  to 
lead  to  the  rational  and  satisfactory 
conclusion  that  the  framers  of  the 
constitution  could  not  as  men  of  or- 
dinary prudence  and  foresight  have 
intended  to  prohibit  their  exercise 
in  the  particular  case." 

City  of  St.  Charles  y.  Nolle,  51  Mo. 
122;  State  v.  Fisher,  52  Mo.  174; 
Bertholf  v.  O'Reilly,  74  N.  Y.  509. 
"The  main  guaranty  of  private 
rights  against  unjust  legislation  is 
found  in  that  memorable  clause  in 
the  bill  of  rights,  that  no  person 
shall  'be  deprived  of  life,  liberty  or 
property,  without  due  process  of 
law.'  *  *  *  This  guaranty  is  not 
construed  in  any  narrow  or  techni- 
cal sense.  The  right  to  life  may  be 
invaded  without  its  destruction. 


One  may  be  deprived  of  his  liberty 
in  a  constitutional  sense  without 
putting  his  person  in  confinement. 
Property  may  be  taken  without  man- 
ual interference  therewith,  or  its 
physical  destruction.  The  right  to 
life  includes  the  right  of  the  indi- 
vidual to  his  body  in  its  complete- 
ness and  without  dismemberment; 
the  right  to  liberty,  the  right  to  ex- 
ercise his  faculties  and  to  follow  a 
lawful  avocation  for  the  support  of 
life;  the  right  of  property,  the  right 
to  acquire  power  and  enjoy  it  in  any 
way  consistent  with  the  equal  rights 
of  others  and  the  just  exactions  and 
demands  of  the  state."  Colon  v. 
JLisk,  153  N.  Y.  188. 

6525  Am.  St.  Rep.  889-890;  Soon 
Hing  v.  Crowley,  113  U.  S.  703; 
Mugler  v.  State  of  Kansas,  123  U.  S. 
623;  State  of  Minnesota  v.  Barber, 
136  U.  S.  313;  Brimmer  v.  Rebman, 
138  U.  S.  78;  Stockton  Laundry 
Case,  26  Fed.  611;  Inhabitants  of 
Watertown  v.  Mayo,  109  Mass.  315; 
In  re  Jacobs,  98  N.  Y.  98;  People  v. 
Gillson,  109  N.  Y.  389;  State  v. 
Moore,  104  N.  C.  714. 


POLICE  POWER. 


213 


regulations.  If  they  clearly  violate  or  infringe  upon  these  fun- 
damental, inherent,  inalienable  rights  guaranteed  by  the  consti- 
tution according  to  republican  theories  of  government,  they  are 
clearly  unconstitutional.56  It  must  be  remembered,  however,  that 
each  individual  owes  something  to  society  and  that  he  should 
for  its  good  willingly  surrender  rights  of  which  he  could  not  be 
deprived.  Every  police  regulation  may  unnecessarily  diminish 
rights  belonging  to  the  individual,  but  as  long  as  they  accom- 
plish beneficial  results  they  should  be  considered  valid,  even 
where  involving  a  sacrifice  on  the  part  of  the  citizen. 

§  118.    The  preservation  of  public  health. 

The  preservation  of  the  public  health  is  conceded  by  all  au- 
thorities to  be  one  of  the  legitimate  purposes  for  the  accomplish- 
ment of  which  the  police  power  of  the  state  can  be  exercised  to 
its  fullest  extent.57  The  good  health  of  the  people  of  the  com- 


56  People  v.  Turner,  55  111.  280, 
where  an  act  of  the  legislature  cre- 
ating a  reform  school  and  providing 
for  the  summary  commitment  of 
children  who  are  "destitute  of  prop- 
er parental  care  and  growing  up  in 
mendicancy,  ignorance,  idleness  or 
vice"  was  held  unconstitutional  as 
prescribing  a  virtual  imprisonment 
without  due  process  of  law.  See, 
also,  annotations  to  this  case  by 
Justice  Redfield,  10  Am.  Law  Reg. 
(N.  S.)  p.  373,  where  he  says:  "For 
if  there  is  living  power  enough  in 
those  abstractions  of  the  state  con- 
stitutions which  have  heretofore 
been  regarded  as  mere  'glittering 
generalities'  to  enable  the  courts  to 
enforce  them  against  the  enactments 
of  the  legislature  and  thus  declare 
that  all  men  are  not  only  created 
free  and  equal  but  remain  so  and 
may  enjoy  life  and  pursue  happiness 
in  their  own  way,  provided  they  do 
not  interfere  with  the  freedom  of 
other  men  in  the  pursuit  of  the  same 
objects;  then  the  opportunity  to  com- 
pel parents  to  send  their  children  to 


the  common  schools  by  means  of 
'truant  laws'  such  as  we  have  in  the 
highly  advanced  commonwealth  of 
Massachusetts,  will  come  to  a  speedy 
and  most  inglorious  termination." 
In  re  Day,  181  111.  73.  The  act  re- 
stricting the  granting  of  licenses  to 
lawyers  under  certain  circumstances 
held  unconstitutional.  Noel  v.  Peo- 
ple, 187  111.  587;  Bessette  v.  People, 
193  111.  334.  See  cases  collected  in 
note,  33  Cent.  Law  J.  382. 

57  Richardson  v.  City  of  Boston,  24 
How.  (U.  S.)  188;  Town  of  Greens- 
boro v.  Ehrenreich,  80  Ala.  579,  2 
So.  725;  Dunham  v.  City  of  New 
Britain,  55  Conn.  378,  11  Atl.  354; 
State  v.  Main,  69  Conn.  123, — prin- 
ciple applied  to  "peach  yellows"; 
Murphy  v.  City  of  Wilmington,  6 
Houst.  (Del.)  108;  Inhabitants  of 
Quincy  v.  Kennard,  151  Mass.  563, 
24  N.  E.  860;  State  v.  Zimmerman, 
86  Minn.  353,  90  N.  W.  783;  Board  of 
Health  of  Trenton  v.  Hutchinson,  39 
N.  J.  Eq.  218;  Board  of  Health  of 
New  Jersey  v.  Diamond  Mills  Paper 
Co.,  63  N.  J.  Eq.  Ill,  51  Atl.  1019. 


214 


POWERS. 


§   119 


nmnity  is  one  of  the  chief  ends  or  aims  of  government,  and  this 
is  true  not  only  because  of  the  great  expense  which  the  state 
necessarily  incurs  in  caring  for  the  indigent  sick,  one  of  its  du- 
ties, but  that  the  state  as  composed  of  individuals  may  maintain 
the  highest  degree  of  efficiency  possible  in  the  advancement  of  its 
material,  moral,  and  intellectual  interests.  That  a  sound  body 
is  the  best  agency  for  the  promotion  of  general  prosperity  is  a 
maxim  which  can  be  applied  to  the  state  as  well  as  to  the  in- 
dividual. The  statements  in  this  section  are  such  truisms  that 
it  is  unnecessary  to  cite  authorities. 

§  119.    Public  agencies  for  the  preservation  of  health. 

The  state  in  its  exercise  of  the  police  power  for  the  preserva- 
tion of  the  public  health  has  the  right  to  select  such  agency  as 
it  deems  best  fitted  for  that  purpose.  The  duty  is  usually  en- 
trusted to  administrative  or  executive  boards,  duly  appointed58 
or  elected  by  the  people,  called  boards  of  health,59  members  of 
which  must  have  the  qualifications  required.60  Sometimes  this 


See  note  in  38  L.  R.  A.  305  and  39 
L.  R.  A.  266. 

ss  Dunwoody  v.  United  States,  143 
U.  S.  578;  Municipality  of  Cape  Bre- 
ton County  v.  McKay,  18  Can.  Sup. 
Ct.  639;  Braman  v.  City  of  New 
London,  74  Conn.  695,  51  Atl.  1082; 
In  reOpinion  of  Justices  to  Governor 
&  Council,  136  Mass.  578.  See,  also, 
Act  of  Congress  of  March  3,  1879 
(20  Stat.  484)  creating  a  National 
Board  of  Health  consisting  of  seven 
members  to  be  appointed  by  the 
President. 

53  People  v.  Perry,  79  Cal.  105 ; 
Forbes  v.  Board  of  Health  of  Es- 
cambia  County,  27  Fla.  189;  Waller 
v.  Wood,  101  Ind.  138.  Board  of 
county  commissioners  constitutes 
for  the  county  its  board  of  health. 
Hengehold  v.  City  of  Covington,  108 
Ky.  752,  57  S.  W.  495;  In  re  Opinion 
of  Justices  to  Governor  &  Council, 
136  Mass.  578;  People  v.  Scott,  31 
Misc.  131,  64  N.  Y.  Supp.  970;  Smith 


v.  Lynch,  29  Ohio  St.  261;  City  of 
Taunton  v.  Taylor,  116  Mass.  254. 

Davock  v.  Moore,  105  Mich.  120. 
"Municipal  corporations  are  of  a  two- 
fold character,  the  one  public  as  re- 
gards the  state  at  large,  in  so  far  as 
they  are  its  agents  in  government, 
the  other  private,  in  so  far  as  they 
are  to  provide  the  local  necessities 
and  conveniences  for  the  citizens. 
The  legislature  under  the  present 
act  is  dealing  with  the  city  of  De- 
troit as  one  of  its  agencies  to  pro- 
tect the  public  health  and  prevent 
the  spreading  of  pestilential  conta- 
gious or  infectious  disease.  *  *  * 
Clearly  it  is  apparent  from  the  whole 
act  that  it  was  the  legislative  intent 
to  use  the  city  as  its  agent  in  gov- 
ernment, to  prevent  the  spread  of 
contagious  disease." 

eo  State  v.  Kohnke,  106  La.  420,  31 
So.  45;  In  re  Opinion  of  Justices  to 
Governor  &  Council,  136  Mass.  578; 
Board  of  Health  of  Trenton  v.  Hutch 


120 


POLICE  POWER. 


215 


power  is  delegated  by  the  state  or  the  legislature  to  the  munici- 
pal authorities  for  similar  action.  The  state  may  also  give  the 
right  to  the  people  residing  within  certain  territory  to  organize 
either  under  special  or  general  laws,  districts  having  for  their 
sole  purpose  the  preservation  of  the  public  health  within  such 
limits.81  Such  boards  of  health  or  sanitary  districts  are  consid- 
ered public  quasi  corporations  and  possess,  with  the  power  to 
exercise  them,  such  powers  as  belong  to  corporations  of  a  similar 
grade  or  special  powers  granted  by  the  legislature.62 

§  120.    Boards  of  health ;  their  jurisdiction  and  powers. 

The  particular  agencies,  under  whatever  name,  employed  by 
the  state  for  the  preservation  of  the  public  health,  may  exercise 
the  powers  with  which  they  are  clothed  only  within  the  district 
over  which  they  are  given  jurisdiction,63  and  upon  those  matters 


inson,  39  N.  J.  Eq.  218;  People  v. 
Platt,  117  N.  Y.  159;  People  v.  Board 
of  Health  of  Yonkers,  140  N.  Y.  1. 

ei  Woodward  v.  Fruitvale  Sanitary 
Dist,  99  Cal.  554.  "It  may  well  be 
that  if  in  the  formation  of  a  sanitary 
district  an  incorporated  city  or  town 
shall  be  included,  in  which  the  au- 
thority conferred  upon  the  sanitary 
board  is  delegated  to  the  munici- 
pality, it  will  be  held  that  the  law 
under  consideration  was  not  intend- 
ed to  apply  to  such  city  or  town." 
In  re  Werner,  129  Cal.  567;  Stumpf 
v.  San  Luis  Obispo  County  Sup'rs, 
131  Cal.  364;  Wilson  v.  Trustees  of 
Sanitary  Dist.  of  Chicago,  133  111. 
443,  27  N.  E.  203;  Grace  v.  Board 
of  Health  of  Newton,  135  Mass.  490; 
Boehm  v.  City  of  Baltimore,  61  Md. 
259;  Board  of  Health  of  Hamilton 
Tp.  v.  Neidt  (N.  J.  Eq.)  19  Atl.  318; 
Hutchinson  v.  Board  of  Health  of 
Trenton,  39  N.  J.  Eq.  569.  A  board 
of  health  is  legally  organized  if 
there  has  been  a  substantial  com- 
pliance with  the  requirements  of  the 
law.  Kennedy  v.  Board  of  Health,  2 
Pa.  366;  City  of  Philadelphia  v. 
Provident  Life  &  Trust  Co.,  132  Pa. 


224;  Hughson  v.  City  of  Rochester, 
49  Hun,  45,  1  N.  Y.  Supp.  725;  Coe 
v.  Schultz,  2  Abb.  Pr.  (N.  S.;  N.  Y.) 
193;  Board  of  Health  of  Kortright  v. 
Cease,  53  Hun,  638,  6  N.  Y.  Supp. 
790;  Metropolitan  Board  of  Health 
v.  Heister,  37  N.  Y.  661;  Gregory  v. 
City  of  New  York,  40  N.  Y.  273; 
People  v.  Acton,  48  Barb.  (N.  Y.) 
524;  Gould  v.  City  of  Rochester,  105 
N.  Y.  46. 

62  Forbes  v.  Board  of  Health  of  Es- 
cambia   County,   27  Fla.   189,   9   So. 
446;    Johnson    v.    Sanitary   Dist.    of 
Chicago,  163  111.  285;   Health  Dept. 
of   New  York   v.   Pinckney,   7   Daly 
(N.   Y.)    260;    Taylor   v.    Board    of 
Health  of  Philadelphia,   31   Pa.   73. 
See  note  24  Am.  Law  Rev.  559,  on 
boards  of  health,  their  objects,  func- 
tions and  powers.    See,  also,  47  Am. 
St.  Rep.  533-552;  26  L.  R.  A.  727;  38 
L.  R.  A.  305;  Green  v.  City  of  Cape 
May,  41  N.  J.  Law,  45;  City  of  Bur- 
lington v.  Dennison,  42  N.  J.  Law, 
165;  Courter  v.  Board  of  Health  of 
Newark,    54    N.    J.    Law,    325,    and 
Gould  v.  City  of  Rochester,  105  N. 
Y.  46. 

63  Ward  v.  Washington,  4  Cranch, 


216 


POWERS. 


120 


the  regulation  of  which  is  delegated  to  them.  The  care  of  the 
public  health,  it  has  been  held,  is  an  important  object,  and  laws 
conferring  powers  upon  the  agencies  for  its  preservation  should 
receive  a  liberal  construction  in  order  to  effect  an  advancement 
jf  the  ends  and  an  accomplishment  of  the  purposes  for  which 
they  are  established.6*  These  agencies  are  considered  public 
quasi  corporations  or  municipal  corporations;  agencies  of  the 
state;  and  as  such  entitled  to  its  support  and  protection  in  the 
enforcement  of  their  orders  and  regulations,65  and  with  the  power 


C.  C.  232,  Fed.  Cas.  No.  17,163;  Cot- 
ting  v.  Kansas  City  Stock  Yards  Co., 
79  Fed.  679;  City  of  South  Pasadena 
v.  Los  Angeles  Terminal  R.  Co.,  109 
Cal.  315. 

Begein  v.  City  of  Anderson,  28  Ind. 
79.  City  authorities  have  no  power 
to  prohibit  the  establishment  of  a 
cemetery  outside  of  city  limits,  their 
authority  being  co-existent  with  the 
city  limits.  Robb  v.  City  of  Indian- 
apolis, 38  Ind.  49;  Stone  v.  Heath, 
179  Mass.  385;  Gould  v.  City  of 
Rochester,  105  N.  Y.  46;  reversing 
39  Hun,  79;  Bell  v.  City  of  Roches- 
ter, 58  Hun,  602,  11  N.  Y.  Supp.  305; 
Polinsky  v.  People,  73  N.  Y.  65; 
Jarvis  v.  Pinckney,  3  Hill  (S.  C.) 
123;  State  v.  Franklin,  40  Kan.  410. 

6*  Blue  v.  Beach,  155  Ind.  121,  56 
N.  E.  89,  80  Am.  St.  Rep.  195.  "If 
the  legislature  in  the  interests  of  the 
public  health  enacts  a  law  and  there- 
by interferes  with  the  personal 
rights  of  an  individual,  *  *  *  it 
then,  under  such  circumstances  be- 
comes the  duty  of  the  courts  to  re- 
view such  legislation  *  *  *  and 
in  such  an  examination  the  court 
will  look  to  the  substance  of  the 
thing  involved  and  will  not  be  con- 
trolled by  mere  forms." 

Wyse  v.  Police  Com'rs  of  New  Jer- 
sey, 68  N.  J.  Law,  127,  52  Atl.  281. 
"In  interpreting  these  rules  we  must 
look  at  them  from  the  standpoint  of 


the  board  of  commissioners,  not  as 
formulating  a  matter  of  legal  pro- 
cedure, but  as  making  regulations, 
general  in  their  character,  to  pro- 
mote the  health,  comfort  and  con- 
venience of  a  crowded  city.  Such  a 
power  is  held  to  arise  from  author- 
ity to  make  police  regulations.  Weil 
v.  Ricord,  24  N.  J.  Eq.  (9  C.  E. 
Green)  169.  We  must  also  have  re- 
gard to  the  rule  that  enactments  of 
this  character  are  given  a  reason- 
able construction,  and  to  the  further 
rule  that  where  such  enactments  are 
made  by  a  municipal  body  having 
jurisdiction  over  the  subject-matter 
every  intendment  and  presumption 
will  be  made  in,  favor  of  their  valid- 
ity. 17  Am.  &  Eng.  Enc.  Law,  264; 
Harrington  Tp.  Road  Commission  v. 
Haring,  55  N.  J.  Law,  327;  Atlantic 
City  Water  Works  Co.  v.  Consumers 
Water  Co.,  44  N.  J.  Eq.  (17  Stew.) 
427."  Gregory  v.  City  of  New  York, 
40  N.  Y.  273;  Health  Dept.  of  New 
York  v.  Knoll,  70  N.  Y.  530. 

65  Moore  v.  New  Orleans  Water- 
works Co.,  114  Fed.  380.  "The  case 
has  been  argued  as  though  the  drain- 
age commission  of  New  Orleans  was 
vested  with  full  possession  of  the 
police  power  of  the  state,  to  the  ex- 
clusion of  all  and  any  rights  of  the 
Mew  Orleans  Waterworks  Company, 
while  the  fact  is  that  both  the  com- 
mission and  the  waterworks  com- 


§  120 


POLICE  POWER. 


217 


of  suing  and  being  sued.66  The  performance  of  their  duties  may 
be  compelled  in  a  proper  proceeding,  not  being  considered  en- 
tirely discretionary  in  their  character.67  Powers  granted  these 
bodies  may  be  limited  by  express  terms,68  or  the  grant  of  author- 
ity may  exist  in  general  language,  a  wide  latitude  of  discretion 
existing  in  the  latter  case.69 

The  true  rule  was  probably  stated  in  the  case  of  City  of  St. 


pany  are  agencies  of  the  state  and 
city  in  providing  for  the  public 
health  and  safety,  and  that  both  are 
entitled  to  the  support  and  protec- 
tion of  the  police  power  in  executing 
and  performing  the  functions  re- 
spectively assigned."  People  v.  Wil- 
liamson, 135  Cal.  415,  67  Pac.  504; 
City  of  Rockland  v.  Farnsworth,  87 
Me.  473;  People  v.  Shurly,  124  Mich. 
645;  Cartwright  v.  City  of  Cohoes, 
165  N.  Y.  631;  Taylor  v.  Board  of 
Health  of  Philadelphia,  31  Pa.  73. 
See,  also,  72  Am.  Dec.  724. 

es  Henderson  County  Board  of 
Health  v.  Ward,  107  Ky.  477,  54  S. 
W.  725;  Inhabitants  of  Quincy  v. 
Kennard,  151  Mass.  563;  McEwen  v. 
Board  of  Health  of  Woodbridge  Tp., 
61  N.  J.  Law,  468;  Board  of  Health 
of  Asbury  Park  v.  Rosenthal,  67  N.  J. 
Law,216,  50Atl.  439;  Board  of  Health 
of  New  Rochelle  v.  Valentine,  57 
Hun,  591,  11  N.  Y.  Supp.  112;  Bell 
v.  City  of  Rochester,  58  Hun,  602,  33 
State  Rep.  739,  11  N.  Y.  Supp.  305; 
Gould  v.  City  of  Rochester,  105  N. 
Y.  46;  Brown  v.  District  of  Narra- 
gansett,  21  R.  I.  156,  503;  City  of 
Memphis  v.  Smythe,  104  Tenn.  702; 
Buckstaff  v.  City  of  Oshkosh,  92 
Wis.  520.  See,  also,  Parker  &  W. 
Pub.  Health. 

67  Wartmsn  v.  City  of  Philadel- 
phia, 33  Pa.  202;  Com.  v.  Bredin,  165 
Pa.  224.  "Where  duties  of  a  public 
nature  are  imposed  upon  municipal 
corporations,  they  are  liable  to  In- 
dictment for  neglecting  to  properly 


discharge  such  duties."  See,  also, 
15  Am.  &  Eng.  Enc.  Law  (1st  Ed.) 
1196,  1197. 

es  Wong  Wai  v.  Williamson,  103 
Fed.  1.  "Measures  of  this  character 
*  *  *  are  constantly  upheld  by 
the  courts  as  valid  acts  of  legisla- 
tion, however  inconvenient  they  may 
prove  to  be,  and  a  wide  discretion 
has  also  been  sanctioned  in  their  ex- 
ecution. But  when  the  municipal 
authority  has  neglected  to  provide 
suitable  rules  and  regulations  upon 
the  subject  and  the  officers  are  left 
to  adopt  such  methods  as  they  may 
deem  proper  for  the  occasion,  their 
acts  are  open  to  judicial  review  and 
may  be  examined  in  every  detail  to 
determine  whether  individual  rights 
have  been  respected  in  accordance 
with  constitutional  requirements." 
State  v.  Burdge,  95  Wis.  390. 

69  Jew  Ho  v.  Williamson,  103  Fed. 
10,  and  cases  cited  in  the  opinion; 
Ex  parte  Tuttle,  91  Cal.  589;  Ex 
parte  Whitwell,  98  Cal.  73;  Austin 
v.  Murray,  33  Mass.  (16  Pick.)  121; 
City  of  St.  Louis  v.  Weber,  44  Mo. 
547;  Whidden  v.  Cheever,  69  N.  H. 
142,  44  Atl.  908;  Pennsylvania  R. 
Co.  v.  Jersey  City,  47  N.  J.  Law, 
286;  In  re  Smith,  146  N.  Y.  68; 
Brown  v.  Pierce  County,  28  Wash. 
345,  68  Pac.  872.  In  this  case  the 
qualified  health  officer  of  a  county 
held  to  have  power  to  seize  a  pri- 
vate building  in  which  to  confine  a 
small-pox  patient. 


218 


POWERS. 


120 


Louis  v.  Weber,  cited  in  the  notes,  where  the  court  said :  ' '  Courts 
will  not  look  closely  into  mere  matters  of  judgment  where  there 
may  be  a  reasonable  difference  of  opinion.  It  is  not  to  be  ex- 
pected that  every  power  will  always  be  exercised  with  the  high- 
est discretion,  and  when  it  is  plainly  granted  a  clear  case  should 
be  made  to  authorize  an  interference  upon  the  ground  of  unrea- 
sonableness." A  certain  definite  purpose  is  given  them  to  carry 
out,  and  subject  only  to  constitutional  provisions  and  general 
rules  of  the  law  limiting  the  exercise  of  the  police  power,  they 
have  the  right  to  use  all  the  reasonable  and  proper  means  for  ac- 
complishing this.70  Their  discretionary  acts  are  not  conclusive, 
but  the  measures  which  they  may  adopt  are  subject  to  review  by 
the  courts.  It  is  also  necessary  to  the  validity  of  their  acts  that 
they  perform  them  in  the  manner  required  by  law,  and  in  gen- 
eral their  proceedings  and  rights  of  appeal  are  regulated  by 
statute.71 

Vaccination.     Boards  of  health  have  the  power  to  order  the 
vaccination  of  all  persons  not  having  been  successfully  vaccin- 


70  Wong   Wai   v.   Williamson,   103 
Fed.  1;    State  v.  Orr,  68  Conn.  101, 
construing  an  exclusive  contract  for 
the  removal  of  garbage;   Duggan  v. 
City  of  New   Orleans,   15  La.  Ann. 
449;   Courter  v.  Board  of  Health  of 
Newark,  54  N.  J.  Law,  325,  23  Atl. 
949;  Johnston  v.  Borough  of  Belmar, 
58  N.  J.  Eq.  354;  the  right  of  board 
of  health  considered,  to  control  use 
of     water     by     private     consumer; 
Health  Dept.  of  New  York  v.  Lalor, 
38    Hun    (N.    Y.)     542;     Board    of 
Health    of  New  Rochelle   v.   Valen- 
tine,  60   Hun    (N.  Y.)    579;    Under- 
wood v.  Green,  26  N.  Y.  Super.  Ct. 
(3  Rob.)   86;  People  v.  Justices  of 
Ct.  of  Special  Sessions,  7  Hun   (N. 
Y.)   214. 

71  Hurst  v.  Warner,  102  Mich.  238, 
26  L.  R.  A.  484;   Darcantel  v.  Peo- 
ple's Slaughter  House  &  Refrigerat- 
ing Co.,   44   La.  Ann.   632;    City  of 
Salem  v.  Eastern  R.  Co.,  98  Mass. 
431;  City  of  Taunton  v.  Taylor,  116 


Masa.  254.  Orders  or  directions  of 
such  boards  should  be  liberally  con- 
strued; Pebbles  v.  City  of  Boston, 
131  Mass.  197;  Com.  v.  Young,  135 
Mass.  526;  Inhabitants  of  Quincy  v. 
Kennard,  151  Mass.  563;  White  v. 
Kenney,  157  Mass.  12;  City  of  St. 
Louis  v.  Schnuckelberg,  7  Mo.  App. 
536.  The  action  of  a  board  of  health 
in  declaring  an  act  a  nuisance  is 
not  conclusive;  Wilson  v.  Alabama  G. 
S.  R.  Co.,  77  Miss.  714,  28  So.  567; 
Marshall  v.  Cadwalader,  36  N.  J. 
Law,  283.  The  action  of  a  board  of 
health  in  declaring  a  certain  busi- 
ness a  nuisance  is  void  as  their  pow- 
ers are  executive  and  advisory  only; 
not  legislative  or  judicial;  Courter 
v.  Board  of  Health  of  Newark,  54  N. 
J.  Law,  325;  Gould  v.  City  of  Roch- 
ester, 105  N.  Y.  46;  People  v.  Board 
of  Health  of  Yonkers,  140  N.  Y.  1; 
Board  of  Health  of  Yonkers  v.  Cop- 
cutt,  140  N.  Y.  12;  In  re  Smith,  146 
N.  Y.  68. 


§  120 


POLICE  POWER. 


219 


ated  within  a  certain  time  prior  to  such  order,  during  the  con- 
tinuance of  an  epidemic  of  small-pox  ;72  to  require  the  vaccination 
of  children  prior  to  their  attendance  at  public  schools;73  or  to 
require  the  injection  of  a  serum  supposed  to  be  a  preventative 
against  contraction  of  bubonic  plague.7*  They  are  authorized  to 
take  such  measures  as  they  may  deem  necessary  to  prevent  the 
spread  of  infectious  or  contagious  diseases  affecting  either  per- 
sons75 or  domestic  animals.76  The  scope  of  the  exercise  ot  their 


72  Morris  v.  City  of  Columbus,  102 
Ga.  792;  City  of  Ft.  Wayne  v.  Rosen- 
thai,  75  Ind.  156;  City  of  St.  Paul  v. 
Peck,  78  Minn.  497;  State  v.  Hay, 
126  N.  C.  999;  Hazen  v.  Strong, 
2  Vt.  427;  Salisbury  Com'rs  v.  Powe, 
51  N.  C.  (6  Jones)  134.  See,  also, 
Parker  &  W.  Pub.  Health,  §  123  and 
cases  cited;  and  59  Am.  Rep.  116, 
118;  47  Am.  St.  Rep.  546,  547. 

73Abeel  v.  Clark,  84  Cal.  226;  Bis- 
sell  v.  Davison,  65  Conn.  183;  Potts 
v.  Breen,  167  111.  67;  Lawbaugh  v. 
Board  of  Education  of  Dist.  No.  2, 
177  111.  572;  School  Directors  v. 
Breen,  60  111.  App.  201,  holds  that 
for  failure  to  observe  rule  requir- 
ing vaccination  a  pupil  cannot  be  ex- 
cluded from  school  when  there  is  no 
immediate  necessity  for  vaccination; 
Cory  v.  Carter,  48  Ind.  327;  Blue  v. 
Beach,  155  Ind.  121;  City  of  Salem 
v.  Eastern  R.  Co.,  98  Mass.  431; 
State  v.  Zimmerman,  86  Minn.  353, 
90  N.  W.  783;  In  re  Rebenack,  62 
Mo.  App.  8;  In  re  Walters,  84  Hun, 
457,  32  N.  Y.  Supp.  322.  See,  also, 
65  Am.  St.  Rep.  338;  Duffield  v.  Wil- 
liamsport  School  Dist.,  162  Pa.  476, 
25  L.  R.  A.  152  with  note,  and  cases 
cited  by  counsel;  State  v.  Burdge, 
95  Wis.  390.  As  holding  to  the  con- 
trary see  Osborn  v.  Russell,  64  Kan. 
507,  68  Pac.  60. 

T*  Wong  Wai  v.  Williamson,  103 
Fed.  1,  and  cases  cited  in  opinion. 
See,  also,  McClf-tchy  v.  Matthews, 


135  Cal.  274,  67  Pac.  134,  as  to  pow- 
ers of  the  state  board  of  health  in 
connection  with  investigation  of 
same  disease. 

TS  Town  of  Greensboro  v.  Ehren- 
reich,  80  Ala.  579;  County  of  Sa- 
guache  v.  Decker,  10  Colo.  149,  14 
Pac.  123;  Chicago,  R.  I.  •&  P.  R.  Co. 
v.  City  of  Joliet,  79  111.  44;  Warner 
v.  Stebbins,  111  Iowa,  86;  Hender- 
son County  Board  of  Health  v. 
Ward,  107  Ky.  477,  54  S.  W.  725; 
Pinkham  v.  Dorothy,  55  Me.  135; 
Seavey  v.  Preble,  64  Me.  120;  Austin 
v.  Murray,  33  Mass.  (16  Pick.)  125; 
Train  v.  Boston  Disinfecting  Co.,  144 
Mass.  523;  Elliott  v.  Kalkaska 
Sup'rs,  58  Mich.  452;  Hurst  v.  War- 
ner, 102  Mich.  238,  60  N.  W.  440; 
Safford  v.  Board  of  Health  of  De- 
troit, 110  Mich.  81,  67  N.  W.  1094; 
Aull  v.  City  of  Lexington,  18  Mo. 
401.  The  rent  of  a  building  for  the 
use  of  hospital  authorized  in  this 
case.  Eckhardt  v.  City  of  Buffalo,  19 
App.  Div.  1,  46  N.  Y.  Supp.  204. 
Asiatic  cholera.  Rosenbaum  v.  City 
of  Newbern,  118  N.  C.  83,  24  S.  E.  1. 
An  ordinance  requiring  second-hand 
clothing  to  be  turned  over  to  the 
city  for  disinfection  at  specified 
prices  held  a  valid  exercise  of  police 
power. 

State  v.  Speyer,  67  Vt.  502,  48 
Am.  St.  Rep.  832.  A  prohibition  of 
the  maintenance  of  pig  pens  with- 
in one  hundred  feet  of  any  dwell- 


220 


POWERS. 


§  120 


powers  does  not  include  generally  a  control  or  regulation  of  pri- 
vate hospitals  within  city  limits. "  They  also  have  the  author- 
ity to  incur  debts  and  employ  physicians  or  other  agencies  in 
the  extermination  of  contagious  or  infectious  diseases  and  the 
execution  of  the  general  purposes  to  accomplish  which  they  were 
appointed  or  elected.78  They  may  legally  adopt  rules  regulating 


ing  or  well  or  spring  used  for 
drinking  held  unreasonable  and  in- 
valid when  considered  irrespective 
of  locality.  In  Town  of  Kosciusko 
v.  Slomberg,  68  Miss.  469,  9  So.  297, 
a  certain  ordinance  prohibiting  the 
sale  of  second-hand  clothing  as  a 
quarantine  regulation  held  to  be  in- 
valid and  an  unreasonable  restraint 
of  trade.  63  Am.  Dec.  391. 

76Kimmish  v.  Ball,  129  U.  S.  217; 
Missouri,  K.  &  T.  R.  Co.  v.  Haber, 
169  U.  S.  613;  Id.,  56  Kan.  694; 
Mullen  v.  Western  Union  Beef  Co.,  9 
Colo.  App.  497.  State  rules  regulat- 
ing domestic  animals  must  take  pre- 
cedence and  authority  over  the  unau- 
thorized recommendations  of  a  Fed- 
eral official.  Stevens  v.  Brown,  58 
111.  289;  Somerville  v.  Marks,  58  111. 
371;  Yeazel  v.  Alexander,  58  111.  254; 
Chicago  &  A.  R.  Co.  v.  Gasaway,  71 
111.  570;  Patee  v.  Adams,  37  Kan. 
133;  Miller  v.  Horton,  152  Mass. 
540;  Husen  v.  Hannibal  &  St.  J.  R. 
Co.,  60  Mo.  226;  Grimes  v.  Eddy,  126 
Mo.  168;  Newark  &  S.  O.  Horse  Car 
R.  Co.  v.  Hunt,  50  N.  J.  Law,  308. 

But  see  Hannibal  &  St.  J.  R.  Co. 
v.  Husen,  95  U.  S.  465  reversing  60 
Mo.  226.  This  decision,  however, 
was  practically  modified  by  the  later 
case  of  Kimmish  v.  Ball,  supra; 
Hand  v.  State,  37  Tex.  Cr.  App.  310, 
39  S.  W.  676. 

77  Bessonies  v.  City  of  Indianapo- 
lis, 71  Ind.  189.  "We  do  not  think 
that  the  ordinance  under  considera- 
tion can  be  regarded  as  a  proper  ex- 
ercise or  application  of  the  implied 


police  powers  of  the  city,  either  in 
its  terms  or  in  its  object;  and  cer- 
tainly it  was  not  authorized  by  any 
of  the  express  powers  of  the  city, 
under  the  law.  We  are  of  the  opin- 
ion therefore  that  the  legislative 
bodies  of  the  city  of  Indianapolis 
clearly  transcended  their  powers 
*  *  *  that  said  ordinance  was  and 
is  absolutely  null  and  void." 

78  Town  of  New  Decatur  v.  Berry, 
90  Ala.  432.  In  this  case  the  town  of 
New  Decatur  had  no  authority  to 
establish  a  quarantine,  and  a  con- 
tract for  services  to  be  rendered  in 
connection  with  this  quarantine 
held  as  ultra  vires  and  not  enforce- 
able. 

Spearman  v.  City  of  Texarkana, 
58  Ark.  348;  Jay  County  Com'rs  v. 
Fertich,  18  Ind.  App.  1,  46  N.  E. 
699.  In  discussing  the  limitations 
and  scope  of  a  board's  action  the 
court  say:  "The  purpose  of  the  stat- 
ute is  not  to  furnish,  free  of  ex- 
pense, medical  treatment  and  medi- 
cines to  individual  persons  afflicted 
with  disease  of  any  character 
(though  under  other  statutes  such 
aid  may  be  given  to  the  poor)  but 
it  is  to  protect  the  public  health, 
the  health  of  the  people  at  large,  by 
preventive  measures." 

City  of  McPherson  v.  Nichols,  48 
Kan.  430,  29  Pac.  679;  Bell  County 
v.  Blair,  21  Ky.  L.  R.  121,  50  S.  W. 
1104.  Here  a  county  was  held  not 
liable  for  the  services  of  a  physician 
rendered  in  suppression  of  an  epi- 
demic within  the  city  limits,  the 


120 


POLICE  POWER. 


221 


the  removal  of  dead  bodies,79  and  the  manner,  time  and  place  of 
interring  them.80 


board  of  health  of  the  city  having 
exclusive  control. 

Barton  v.  City  of  New  Orleans,  16 
La.  Ann.  317;  State  v.  City  of  New 
Orleans,  37  La.  Ann.  894,  held  that 
the  salaries  of  sanitary  police  could 
not  be  paid  from  the  regular  police 
appropriation.  Schmidt  v.  Stearns 
County,  34  Minn.  112;  Elliott  v.  Kal- 
kaska  Sup'rs,  58  Mich.  452;  Wilkin- 
son v.  Long  Rapids  Tp.,  74  Mich.  63; 
Labrie  v.  City  of  Manchester,  59  N. 
H.  120;  Rockaway  Tp.  .v.  Freehold- 
ers of  Morris  County,  68  N.  J.  Law, 
16,  52  All.  373;  Kent  v.  Village  of 
North  Tarrytown,  50  App.  Div.  502, 
64  N.  Y.  Supp.  178. 

In  TC  Taxpayers  &  Freeholders  of 
Pittsburgh,  157  N.  Y.  78.  "The 
charter  of  this  village,  it  is  true, 
contains  no  provision  authorizing 
the  trustees  to  raise  money  *  *  * 
for  the  purpose  of  suppressing  dis- 
ease or  preserving  the  public  health 
but  the  general  laws  of  the  state 
make  it  their  duty  to  comply  with 
the  orders  of  the  local  board  of 
health  in  this  respect,  and  when  that 
board  incurs  expense  in  the  perform- 
ance of  its  duty  *  *  *  it  becomes 
the  duty  of  the  municipal  authorities 
to  comply  with  the  order  whether 
there  is  any  provision  to  that  effect 
in  the  charter  or  not."  Town  of 
New  Decatur  v.  Berry,  90  Ala.  432. 
And  see  24  Am.  St.  Rep.  827;  58  Am. 
Dec.  169.  But  see,  also,  the  following 
cases  where  it  is  held  no  liability 
was  contracted  because  of  limited 
powers  on  the  part  of  the  board  of 
health  or  other  contracting  body  or 
lack  of  sufficient  contract:  Town  of 
New  Decatur  v.  Berry,  90  Ala.  432; 
City  of  Ft.  Wayne  v.  Rosenthal,  75 
Ind.  156;  Young  v.  Blackhawk  Coun- 


ty, 66  Iowa,  460;  Gill  v.  Appanoose 
County,  68  Iowa,  20;  Pusey  v.  Meade 
County  Ct,  64  Ky.  (1  Bush)  217; 
Kellogg  v.  Inhabitants  of  St.  George, 
28  Me.  255;  Childs  v.  Inhabitants  of 
Phillips,  45  Me.  408;  Rae  v.  City  of 
Flint,  51  Mich.  526;  Wilkinson  v. 
Town  of  Albany,  28  N.  H.  (8  Fost.) 
9;  Mclntire  v.  Town  of  Pembroke, 
53  N.  H.  462;  People  v.  Trustees  of 
Village  of  Penn  Yan,  2  App.  Div.  29, 
37  N.  Y.  Supp.  535;  City  of  Williams- 
port  v.  Richter,  81  Pa.  508. 

'*>  Graves  v.  City  of  Bloomington, 
17  111.  App.  476;  Lake  Erie  &  W.  R. 
Co.  v.  James,  10  Ind.  App.  550,  35 
N.  E.  395,  38  N.  E.  192.  But  see 
opinion  of  Lotz,  C.  J.;  Austin  v. 
Murray,  33  Mass.  (16  Pick.)  121; 
Wyse  v.  Police  Com'rs  of  New  Jer- 
sey, 68  N.  J.  Law,  127,  52  Atl.  281. 

so  Young  v.  Mahoning  County 
Com'rs,  51  Fed.  585;  Ex  parte  Bo- 
hen,  115  Gal.  372;  Concordia  Ceme- 
tery Ass'n  v.  Minnesota  &  N.  W.  R. 
Co.,  121  111.  199;  Bogert  v.  City  of 
Indianapolis,  13  Ind.  134;  City  of 
New  Orleans  v.  Wardens  of  St.  Louis 
Church,  11  La.  Ann.  244;  Com.  v. 
Fahey,  59  Mass.  (5  Gush.)  408;  Com. 
v.  Goodrich,  95  Mass.  (13  Allen) 
546;  Woodlawn  Cemetery  v.  Inhab- 
itants of  Everett,  118  Mass.  354; 
Brick  Presbyterian  Church  Corp.  v. 
City  of  New  York,  5  Cow.  (N.  Y.) 
538;  Page  v.  Symonds,  63  N.  H.  17; 
People  v.  Pratt,  129  N.  Y.  68;  Eickel- 
berg  v.  Board  of  Health  of  Newtown, 
47  Hun  (N.  Y.)  371;  Wygant  v.  Mc- 
Lauchlan,  39  Or.  429,  64  Pac.  867; 
Craig  v.  First  Presbyterian  Church 
of  Pittsburgh,  88  Pa.  42;  City  of 
Philadelphia  v.  Westminster  Ceme- 
tery Co.,  162  Pa.  105;  City  Council 
of  Charleston  v.  Wentworth  St.  Bap- 


222 


POWERS. 


121 


§  121.    Their  liability. 

Boards  of  health  or  health  officers  may,  in  the  performance  of 
their  duties,  destroy  private  property  or  injuriously  affect  rights 
of  third  parties  in  excess  of  their  authority.  The  question  of 
their  liability  then  arises,  and  this  may  be  either  a  personal  one81 
or  their  acts  may  be  performed  in  such  manner  as  to  create  a 
liability,  by  consent  of  the  state,  resting  upon  the  public  agency 
they  represent.82  Such  boards  or  agencies  are  invested  with 
duties  of  a  governmental  character,  the  preservation  of  the  pub- 
lic health,  to  be  exercised  for  the  benefit  of  the  community  at 
large.  In,  the  performance  of  their  official  duties  when  properly 
done  and  within  the  limits  of  their  jurisdiction  and  powers,  there 
can  be  no  liability,  either  of  a  personal  nature  or  against  them 


tist  Church,  4  Strob.  (S.  C.)  306; 
City  of  Austin  v.  Austin  City  Ceme- 
tery Ass'n,  87  Tex.  330;  Pfleger  v. 
Groth,  103  Wis.  104.  A  cemetery  or 
place  of  burial  is  not  considered,  or- 
dinarily, a  nuisance  per  se  but  the 
conditions  and  circumstances  sur- 
rounding it  may  make  it  such. 
County  of  Los  Angeles  v.  Hollywood 
Cemetery  Ass'n,  124  Cal.  344;  Town 
of  Lake  View  v.  Letz,  44  111.  81; 
Town  of  Lake  View  v.  Rose  Hill 
Cemetery  Co.,  70  111.  191;  Begein  v. 
City  of  Anderson,  28  Ind.  79;  Barnes 
v.  Hathorn,  54  Me.  124;  Monk  v. 
Packard,  71  Me.  309;  Grossman  v. 
City  of  Oakland,  30  Or.  478;  Ex 
parte  Wygant,  39  Or.  429;  Dunn  v. 
City  of  Austin,  77  Tex.  139. 

See,  also,  the  following  cases  pass- 
ing upon  the  question  of  the  inter- 
ment of  the  dead  within  municipal 
limits  or  restricting  the' location  of 
a  cemetery  to  particular  locations: 
Scovill  v.  McMahon,  62  Conn.  378; 
City  of  Newark  v.  Watson,  56  N.  J. 
Law,  667;  Coates  v.  City  of  New 
York,  7  Cow.  (N.  Y.)  585;  People  v. 
Pratt,  129  N.  Y.  68;  Wardens  of  St. 
Peter's  Episcopal  Church  v.  Town  of 
Washington,  109  N.  C.  21;  Kincaid's 


Appeal,  66  Pa.  411;  Craig  v.  First 
Presbyterian  Church  of  Pittsburgh, 
88  Pa.  42;  City  of  Austin  v.  Austin 
City  Cemetery  Ass'n,  87  Tex.  330. 

si  Beers  v.  Board  of  Health,  35  La. 
Ann.  1132;  Miller  v.  Horton,  152 
Mass.  540;  Shipman  v.  State  Live- 
stock Sanitary  Commission,  115 
Mich.  488;  Webb  v.  Detroit  Board  of 
Health,  116  Mich.  516;  Pearson  v. 
Zehr,  138  111.  48,  29  N.  E.  854,  32 
Am.  St.  Rep.  113;  Newark  &  S.  O. 
H.  R.  Co.  v.  Hunt,  50  N.  J.  Law,  308, 
12  Atl.  697. 

82  Mead  v.  City  of  New  Haven,  40 
Conn.  72,  20  Am.  Rep.  468;  Ogg  v. 
City  of  Lansing,  35  Iowa,  495;  Fowl- 
er v.  Kansas  City,  64  Kan.  566,  68 
Pac.  33;  Brown  v.  Inhabitants  of 
Vinalhaven,  65  Me.  402;  Barbour  v. 
City  of  Ellsworth,  67  Me.  294;  Gil- 
boy  v.  City  of  Detroit,  115  Mich.  121 
and  cases  cited.  No  liability  cre- 
ated even  when  injury  resulted  from 
negligence  of  city  board  of  health. 
Maxmilian  v.  City  of  New  York,  62 
N.  Y.  160,  16  Am.  Rep.  14;  Prichard 
v.  Com'rs  of  Morganton,  126  N.  C. 
908;  City  of  Richmond  v.  Long's 
Adm'rs,  17  Grat.  (Va.)  375. 


§  121 


POLICE  POWER. 


223 


in  their  capacity  as  public  agents.83  They  necessarily  must  be 
vested  with  a  large  discretion  in  the  performance  of  their  duties, 
and  so  long  as  this  discretion  is  exercised  in  a  reasonable  man- 
ner and  in  good  faith,  their  acts  cannot  create  liabilities.  The 
presumption  that  they  are  acting  in  good  faith  and  under  lawful 
authority  applies.  The  discretion  given  to  such  bodies  or  officers 
does  not,  however,  permit  them  to  promulgate  regulations  or 
rules  in  violation  of  constitutional  provisions.84 


ss  Forbes  v.  Board  of  Health  of 
Escambia  County,  28  Fla.  26.  "These 
boards  are  created  for  public  pur- 
poses in  the  exercise  of  the  police 
power  of  the  state  and  they  have  no 
corporate  interest  in  the  exaction  of 
the  powers  given  them.  *  *  *  An 
examination  of  the  authorities  and 
the  principles  governing  such  cases 
leads  us  to  the  conclusion  that  de- 
fendant was  invested  with  public 
functions  and  the  duties  it  owed 
were  to  the  public  and  as  such  it 
comes  within  the  sphere  of  public 
functionaries  exempt  from  liability 
In  tort  unless  such  remedy  should  be 
given  by  statute."  Frazer  v.  City  of 
Chicago,  186  111.  480;  Tweedy  v. 
Fremont  County,  99  Iowa,  721,  68  N. 
W.  921;  Compagnia  Francaise  de 
Navigation  a  Vapeur  v.  State  Board 
of  Health,  51  La,  Ann.  645,  72  Am. 
Bt.  Rep.  458;  affirmed  186  U.  S.  380, 
82  Sup.  Ct.  811;  Hall  v.  Staples,  166 
Mass.  399;  Danaher  v.  City  of 
Brooklyn,  51  Hun  (N.  Y.)  563;  City 
of  Dallas  v.  Allen  (Tex.  Civ.  App.) 
40  S.  W.  324. 

s*  In  Smith  v.  St.  Louis  &  S.  W. 
R.  Co.,  181  U.  S.  248,  the  court 
speaking  through  Justice  McKenna 
6aid:  "It  is  urged  that  it  does  not 
appear  that  the  action  of  the  live 
stock  sanitary  commission  was 
taken  on  sufficient  information.  It 
does  not  appear  that  it  was  not,  and 
the  presumption  which  the  law  at- 
taches to  the  acts  of  public  officers 


must  obtain  and  prevail.  The  plain- 
tiff in  error  relies  entirely  on  ab- 
stract right  which  he  seems  to  think 
cannot  depend  upon  any  circumstan- 
ces or  be  affected  by  them.  This  is 
a  radical  mistake.  It  is  the  char- 
acter of  the  circumstances  which 
gives  or  takes  from  a  law  or  regula- 
tion of  quarantine  a  legal  quality. 
In  some  cases  the  circumstance 
would  have  to  be  shown  to  sustain 
the  quarantine,  as  was  said  in  Kim- 
mish  v.  Ball,  129  U.  S.  217.  But  the 
presumptions  of  the  law  are  proof, 
and  such  presumptions  exist  in  the 
pending  case  arising  from  the  provi- 
sions of  and  the  duties  enjoined  by 
the  statute,  and  sanction  the  action 
of  the  sanitary  commission  and  the 
government  of  the  state.  If  they 
could  have  been  they  should  have 
been  met  and  overcome."  Wong  Wai 
v.  Williamson,  103  Fed.  1;  Jew  Ho 
v.  Williamson,  103  Fed.  10;  Ray- 
mond v.  Fish,  51  Conn.  80;  Forbes 
v.  Board  of  Health  of  Escambia 
County,  28  Fla.  26. 

Love  v.  City  of  Atlanta,  95  Ga. 
129,  where  the  court  say:  "In  the 
discharge  of  such  duties  as  pertain 
to  the  health  department  of  the 
state,  the  state  is  acting  strictly  in 
the  discharge  of  one  of  the  func- 
tions of  government.  If  the  state 
delegate  to  a  municipal  corporation, 
either  by  general  law  or  by  particu- 
lar statute,  this  power,  and  impose 
upon  it,  within  its  limits,  the  du*y 


224 


POWERS. 


121 


Their  discretionary  measures,  or  findings  of  fact,  the  basis  of 
these  discretionary  measures,  when  clearly  within  constitutional 


of  taking  such  steps  and  such  meas- 
ures as  may  be  necessary  to  the 
preservation  of  the  public  health,  the 
municipal  corporation  likewise,  in 
the  discharge  of  such  duty,  is  in  the 
exercise  of  a  purely  governmental 
function,  affecting  the  welfare  not 
only  of  the  citizens  resident  within 
its  corporation,  but  of  the  citizens  of 
the  commonwealth  generally,  all  of 
whom  have  an  interest  in  the  pre- 
vention of  infectious  or  contagious 
diseases  at  any  point  within  the 
state,  and  in  the  exercise  of  such 
powers  is  entitled  to  the  same  im- 
munity against  suit  as  the  state  it- 
self enjoys.  Such  a  duty  would 
stand  upon  the  same  footing  as  its 
duty  to  preserve  the  public  peace, 
and  its  liability  or  nonliability  would 
depend  upon  the  same  principle 
which  relieves  the  city  from  liability 
for  the  misfeasance  of  a  police  offi- 
cer in  the  discharge  of  his  duty." 
Wyatt  v.  City  of  Rome,  105  Ga.  312 ; 
Ogg  v.  City  of  Lansing,  35  Iowa, 
495;  Rudolphe  v.  City  of  New  Or- 
leans, 11  La.  Ann.  242;  Mitchell  v. 
City  of  Rockland,  52  Me.  118;  Sea- 
vey  v.  Preble,  64  Me.  120;  Barbour 
v.  City  of  Ellsworth,  67  Me.  294. 

Bryant  v.  City  of  St.  Pa.ul,  33 
Minn.  289.  "The  duty  is  imposed  by 
the  legislature  upon  the  board  of 
health  under  the  police  power  to  be 
exercised  for  the  benefit  of  the  pub- 
lic generally;  it  is  one  in  which  the 
city  corporation  has  ho  particular 
interest  and  from  which  it  derives 
no  special  benefit  in  its  corporate 
capacity.  And  we  think  it  clear 
that,  as  respects  an  agency  thus  cre- 
ated for  the  public  service,  the  city 
should  not  be  held  liable  for  the 


manner  in  which  such  service  is 
performed  by  the  board.  It  is  bound 
to  discharge  its  official  duty  not  by 
virtue  of  its  responsibility  to  the 
municipality,  but  for  the  general 
welfare  of  the  community,  and  no 
action  will  lie  against  the  city  for 
the  acts  of  the  board  unless  given 
by  statute.  The  duties  of  such  offi- 
cers are  not  of  that  class  of  munici- 
pal or  corporate  duties  with  which 
the  corporation  is  charged  in  con- 
sideration of  charter  privileges,  but 
are  police  or  governmental  func- 
tions, which  could  be  discharged 
equally  well  through  agents  appoint- 
ed by  the  state,  though  usually  as- 
sociated with  and  appointed  by  the 
municipal  body.  The  nature  of  the 
duties  as  public  are  the  same  in  ei- 
ther case."  Citing  Ogg  v.  City  of 
Lansing,  35  Iowa,  495;  Fisher  v. 
City  of  Boston,  104  Mass.  87;  Tind- 
ley  v.  City  of  Salem,  137  Mass.  171; 
Condict  v.  Jersey  City,  46  N.  J.  Law, 
157;  Maxmilian  v.  City  of  New 
York,  62  N.  Y.  160;  Smith  v.  City  of 
Rochester,  76  N.  Y.  506;  City  of  Rich- 
mond v.  Long's  Adm'rs,  17  Grat. 
(Va.)  375;  Welsh  v.  Village  of  Rut- 
land, 56  Vt.  228;  and  Hayes  v.  City 
of  Oshkosh,  33  Wis.  314. 

Bamber  v.  City  of  Rochester,  26 
Hun  (N.  Y.)  587;  City  of  Rich- 
mond v.  Long,  17  Grat.  (Va.)  375; 
Lowe  v.  Conroy  (Wis.)  97  N.  W. 
942;  Williams,  Mun.  Liab.  Tort, 
§§  189  et  seq.;  Jones,  Neg.  Mun. 
Corp.  §  30  and  cases  cited.  But  see 
Haag  v.  Vanderburg  County  Com'rs, 
60  Ind.  511;  Dooley  v.  Kansas  City, 
82  Mo.  444;  Lockwood  v.  Bartlett, 
54  Hun  (N.  Y.)  636,  and  Aaron  v. 
Broilles,  64  Tex.  316. 


§  122 


POLICE  POWER. 


225 


limitations,  though  not  conclusive,  will  not  ordinarily   be   re- 
viewed by  the  courts.86 

§  122.    Quarantines  and  quarantine  regulations. 

One  of  the  most  effectual  means  for  preventing  the  spread  of 
contagious  or  infectious  diseases  during  an  epidemic  is  the  es- 
tablishment of  a  quarantine,86  and  in  addition  to  the  rules  and 
regulations  enforced  by  the  state  for  the  preservation  of  the 
public  health  through  any  of  its  permanent  agencies,  it  may  es- 
tablish, during  the  emergency,  a  board  of  quarantine  having  spe- 
cial charge  or  control  of  the  suppression  of  the  epidemic;  or 
special  and  extraordinary  powers  may  be  given  to  ordinary  and 
existing  agencies.87  Rules  and  regulations  may  be  adopted  not 
only  for  the  purpose  of  preventing  the  spread  of  diseases  afflict- 
ing persons88  but  as  affecting  and  detrimental  to  the  public 
health,  also  for  the  suppression  and  prevention  of  their  spread 
among  domestic  animals.89  The  public  authorities  have  the 


ss  Jew  Ho  v.  Williamson,  103  Fed. 
10;  Blue  v.  Beach,  155  Ind.  121. 

se  See  note  25  Am.  Law  Rev.  45. 
In  Metcalf  v.  City  of  St.  Louis,  11 
Mo.  102,  a  quarantine  law  was  at- 
tacked as  unconstitutional.  The 
court  said:  "The  same  division  of 
the  powers  of  government  as  is 
found  in  the  Constitution  of  this 
state  is  to  be  found  likewise  in  the 
Constitutions  of  the  several  states  of 
this  Confederacy;  the  same  power 
given  to  the  municipal  authority  of 
St.  Louis  is  to  be  found  in  the  laws 
of  most  of  the  states  given  to  the 
municipal  authorities  created  by  the 
laws  of  such  states;  and  similar  or- 
dinances to  the  one  under  considera- 
tion have  been  adopted  and  when  oc- 
casion required  enforced  by  the 
municipal  authorities  under  the 
power  conferred  by  their  charter; 
and  we  know  of  no  single  instance 
in  which  any  court  has  held  that  it 
was  not  a  legitimate  exercise  of  pow- 
er." 

87  Ferrari  v.   Board  of  Health  of 


Escambia  County,  24  Fla.  390,  5  So. 
1;  Forbes  v.  Board  of  Health  of  Es- 
cambia County,  28  Fla.  26;  Lynde 
v.  City  of  Rockland,  66  Me.  309. 

ss  Compagnie  Francaise  de  Navi- 
gation a  Vapeur  v.  Louisiana  State 
Board  of  Health,  186  U.  S.  380,  22 
Sup.  Ct.  811;  Milne  v.  Davidson,  5 
Mart.  (N.  S.;  La.)  409,  16  Am.  Dec. 
189;  City  of  Anderson  v.  O'Conner, 
98  Ind.  168;  Warner  v.  Stebbins,  111 
Iowa,  86,  82  N.  W.  457;  Haverty  v. 
Bass,  66  Me.  71;  Harrison  v.  City  of 
Baltimore,  1  Gill  (Md.)  264;  Train 
v.  Boston  Disinfecting  Co.,  144  Mass. 
523;  People  v.  Brady,  90  Mich.  459; 
Highland  v.  Schulte,  123  Mich.  360; 
City  of  St.  Louis  v.  Bofflnger,  19  Mo. 
13;  Lawton  v.  Steele,  119  N.  Y.  226; 
In  re  Smith,  146  N.  Y.  68.  Health 
officers  not  authorized  to  quarantine 
persons  refusing  to  be  vaccinated.  , 

89  Field  v.  Clark,  143  U.  S.  649; 
Haller  v.  Sheridan,  27  Ind.  494.  Hy- 
drophobia. 

Walker  v.  Towle,  156  Ind.  639. 
An  ordinance  held  valid  requiring 


AbD.  Corp. — 15. 


226 


POWERS. 


122 


power  to  prevent  the  passing  or  repassing  of  quarantine  lines  or 
limits;90  the  right  to  establish  and  maintain  hospitals  or  pest 
houses  in  which  sick  persons  may  be  confined,91  and  the  right  to 
remove  to  such  places  persons  afflicted.92  They  also  have  the 
right  to  destroy  or  disinfect  property  inoculated  or  supposed  to 
be  with  the  germs  of  the  disease93  without  creating  a  liability  or 


the  mayor  to  issue  a  proclamation 
compelling  all  owners  of  dogs  to 
muzzle  them  when  an  epidemic  of 
hydrophobia  is  reasonably  to  be  ap- 
prehended. 

Warner  v.  Stebbins,  111  Iowa,  86; 
City  of  Hagerstown  v.  Witmer,  86 
Md.  293;  Hubbard  v.  Preston,  90 
Mich.  221;  St.  Louis  S.  W.  R.  Co.  v. 
Smith,  20  Tex.  Civ.  App.  451;  28 
Am.  Law  Rev.  621;  30  Am.  St.  Rep. 
426;  97  Am.  Dec.  82;  2  Tiedeman, 
State  &  Fed.  Control  of  Persons  & 
Prop.  p.  829. 

*o  Wilson  v.  Alabama  G.  S.  R.  Co., 
77  Miss.  714.  "But  regard  must  also 
be  had  to  the  liberty  of  the  citizen 
and  both  principles  must  be  given 
reciprocal  play.  The  public  health 
must  be  vigilantly  cared  for  but 
with  due  caution  that  no  order  in- 
tended to  secure  it  shall  be  so  sweep- 
ing and  arbitrary  as  to  interfere  un- 
reasonably with  the  citizen's  right  of 
return  to  his  home  neither  he  nor  it 
having  been  exposed  to  infection." 
Courter  v.  Board  of  Health  of  New- 
ark, 54  N.  J.  Law,  325;  People  v. 
Roff,  3  Parker  Cr.  R.  (N.  Y.)  216; 
Young  v.  Flower,  3  Misc.  34,  22  N. 
Y.  Supp.  332;  Salisbury  Com'rs  v. 
Powe,  51  N.  C.  (6  Jones)  134;  State 
v.  Butts,  3  S.  D.  577,  54  N.  W.  603. 

»i  City  of  Chicago  v.  Peck,  196  111. 
260,  63  N.  E.  711;  City  of  Anderson 
v.  O'Conner,  98  Ind.  168:  "In  the 
exercise  of  its  power  and  in  the  per- 
formance of  its  duty  the  appellant 
rented  the  house  described  in  the 
complaint.  *  *  *  It  is  certain 


the  appellant  rented  the  house  for 
a  pest  house.  The  act  thus  done  was 
not  only  within  the  corporate  power 
of  the  appellant  but  it  was  within  its 
duty  under  the  law."  Staples  v. 
Plymouth  County,  62  Iowa,  364; 
City  of  Baltimore  v.  Fairfield  Imp. 
Co.,  87  Md.  352.  The  placing  of  a  wo- 
man afflicted  with  leprosy  in  a  pri- 
vate house  is  not  the  establish- 
ment of  a  hospital  for  the  treatment 
of  infectious  diseases  as  authorized 
by  the  statutes.  Aull  v.  City  of  Lex- 
ington, 18  Mo.  401;  Boom  v.  City  of 
Utica,  2  Barb.  (N.  Y.)  104;  City  of 
Richmond  v.  Henrico  County  Sup'rs, 
83  Va.  204. 

»2  Minneapolis,  St.  P.  &  S.  S.  M. 
R.  Co.  v.  Milner,  57  Fed.  276;  Henge- 
hold  v.  City  of  Covington,  108  Ky. 
752,  57  S.  W.  495;  Mitchell  v.  City 
of  Rockland,  41  Me.  363;  Haverty  v. 
Bass,  66  Me.  71;  Lynde  v.  City  of 
Rockland,  66  Me.  309;  Harrison  v. 
City  of  Baltimore,  1  Gill  (Md.)  284; 
Spring  v.  Inhabitants  of  Hyde  Park, 
137  Mass.  554;  Aaron  v.  Broiles,  64 
Tex.  316;  Tiedeman,  State  &  Fed. 
Control  of  Persons  &  Prop.  §  44. 

93  in  Town  of  Greensboro  v. 
Ehrenreich,  80  Ala.  579,  it  was  held 
that  a  city  could  not  within  a  proper 
exercise  of  its  police  power  pro- 
hibit dealing  in  second-hand  gar- 
ments or  bedding  not  having  been 
used  by  persons  having  infectious 
diseases.  Ex  parte  O'Donovan,  24 
Fla.  281;  Belcher  v.  Farrar,  90  Mass. 
(8  Allen)  325;  Train  v.  Boston  Dis- 
infecting Co.,  144  Mass.  523,  59  Am. 


§  123 


POLICE  POWER. 


227 


right  of  compensation  except  as  given  by  statute.94  Quarantine 
measures  relating  to  the  suppression  and  prevention  of  contagious 
and  infectious  diseases  having  penalties  attached  for  their  viola- 
tion are  usually  considered  penal  statutes  and  therefore  con- 
strued strictly.95 

§  123.    Police  power  respecting  the  regulation  of  occupations. 

The  state  directly  or  through  its  subordinate  agencies  may  in 
the  proper  exercise  of  the  police  power  exercise  supervision  over 
and  a  regulation  of  the  manner  of  carrying  on  the  occupation? 
of  those  within  its  jurisdiction.96  This  regulation  may  consist 


Rep.  113.  "The  board  of  health  is 
invested  by  the  legislature  with  the 
power  to  make  regulations  necessary 
for  the  health  and  safety  of  the  in- 
habitants, extending  to  all  persons, 
goods  and  effects  arriving  in  vessels. 
*  *  *  This  is  a  reasonable  regu- 
lation, made  under  the  police  power 
of  the  state,  which  the  board  is  ex- 
ecuting. Nor,  legislation  having  pro- 
vided that  all  expenses  incurred  on 
account  of  goods  under  quarantine 
laws  shall  be  paid  by  the  owner,  is 
it  competent  for  the  owner  as  a  de- 
fense to  this  claim  to  show  that  the 
goods  did  not  require  disinfection, 
and  could  not  have  transmitted  dis- 
ease, if  they  were  of  the  class  con- 
cerning which  the  regulation  had 
been  made." 

Hurst  v.  Warner,  102  Mich.  238, 
47  Am.  St.  Rep.  525;  Webb  v.  De- 
troit Board  of  Health,  116  Mich. 
516;  Newark  &  S.  0.  H.  C.  R.  Co.  v. 
Hunt,  50  N.  J.  Law,  308,  12  Atl.  697. 
Destruction  of  glandered  horses  au- 
thorized; Polinsky  v.  People,  73  N. 
Y.  65;  Health  Dept.  of  New  York  v. 
Knoll,  70  N.  Y.  530;  Town  Council 
of  Summerville  v.  Pressley,  33  S.  C. 
56,  11  S.  E.  545. 

9*  Webb  v.  Detroit  Board  of 
Health,  116  Mich.  516,  72  Am.  St. 
Rep.  541;  Farnsworth  v.  Kalkaska's 


Sup'rs,  56  Mich.  640,  23  N.  W.  465; 
Shipman  v.  State  Live-Stock  Sani- 
tary Commission,  115  Mich.  488,  73 
N.  W.  817. 

95  Pierce    v.    Dillingham,    96    111. 
App.  300. 

96  Butchers'  Union  S.  H.  &  L.  S. 
Landing  Co.  v.  Crescent  City  L.  S. 
L.  &  Slaughter-House  Co.,  Ill  U.  S. 
746;  Tick  Wo  v.  Hopkins,  118  U.  S. 
356.     In  this  case  where  a  Chinese 
laundry  ordinance  passed  by  the  city 
of  San  Francisco  was  held  unconsti- 
tutional, Mr.  Justice  Matthews  said: 
"For   the   very   idea  that   one  man 
may  be  compelled  to  hold  his  life  or 
the  means  of  living,  or  any  material 
right  essential  to  the  enjoyment  of 
life    at   the   mere   will   of   another, 
seems  to  be  intolerable  to  any  coun- 
try where  freedom  prevails,  as  being 
the  essence  of  slavery  itself."     J'er- 
guson  v.  City  of  Selma,  43  Ala.  398; 
Barton  v.  City  of  New  Orleans,   16 
La.  Ann.  317;   Belcher  v.  Farrar,  5)0 
Mass.    (8  Allen)    325;    Wilkinson  v. 
Town  of  Albany,  28  N.  H.  9;  Hutton 
v.   City   of  Camden,   39   N.   J.  Law, 
122,  23  Am.  Rep.   203;    Weil  v.   Ri- 
cord,  24  N.  J.  Eq.    (9  C.  E.  Green) 
169;    Bertholf  v.  O'Reilly,   74  N.   Y. 
509;  People  v.  Marx,  99  N.  Y.  377. 

In   re  Jacobs,    98  N.  Y.   98.     "So, 
too,  one  may  be  deprived  of  his  lib- 


223 


POWERS. 


§  12 


either  in  ordinances  or  orders  prohibiting  the  carrying  on  of  cer- 
tain occupations  within  certain  limits,  for  example  laundries  and 
slaughtering  houses,97  or  the  prohibition  altogether  of  certain 


erty,  and  his  constitutional  rights 
thereto  violated,  without  the  actual 
imprisonment  or  restraint  of  his 
person.  Liberty,  in  its  broad  sense, 
as  understood  in  this  country,  means 
the  right,  not  only  of  freedom  from 
actual  servitude,  imprisonment  or 
restraint,  but  the  right  of  one  to  use 
his  faculties  in  all  lawful  ways,  to 
live  and  work  where  he  will,  to  earn 
his  livelihood  in  any  lawful  calling, 
and  to  pursue  any  lawful  trade  or 
avocation.  All  laws,  therefore,  which 
impair  or  trammel  these  rights, 
which  limit  one  in  his  choice  of  a 
trade  or  profession,  or  confine  him 
to  work  or  live  in  a  specified  local- 
ity, or  exclude  him  from  his  own 
house,  or  restrain  his  otherwise  law- 
ful movements  (except  as  such  laws 
may  be  passed  in  the  exercise  by  the 
legislature  of  the  police  power, 
which  will  be  noticed  later),  are  in- 
fringements upon  his  fundamental 
rights  of  liberty,  which  are  under 
constitutional  protection."  Salisbury 
Com'rs  v.  Powe,  51  N.  C.  (6  Jones) 
134;  1  Tiedeman,  State  &  Fed.  Con- 
trol of  Persons  &  Prop.  §  120  with 
authorities  cited.  Horr.  &  Bemis, 
Mun.  Ord.  §§  211  et  seq. 

»T  The  power  as  applied  to  the 
control  of  markets.  City  of  New 
Orleans  v.  Graffina,  52  La.  Ann.  1082. 
Regulations  respecting  laundries 
held  invalid.  Yick  Wo  v.  Hopkins, 
118  U.  S.  356;  In  re  Laundry  Ordi- 
nance Case,  7  Sawy.  526,  13  Fed. 
229.  The  city  council  of  San  Fran- 
cisco passed  an  ordinance  that  no 
laundry  should  be  carried  on  in  any 
block  save  by  the  consent  of  twelve 
citizens  and  taxpayers  in  the  block 


in  which  the  proposed  laundry  was 
to  be  located.  Justice  Field  in 
speaking  for  the  court  against  the 
validity  of  this  ordinance  on  the 
ground  of  unreasonableness  said: 
"A  party  might  not  even  be  able  to 
obtain  a  license  to  carry  on  business 
on  his  own  land,  provided  he  should 
possess  an  entire  block,  and  it  should 
not  be  occupied  by  others  who  could 
give  the  recommendation  exacted. 
*  *  *  It  may  be  doubted  whether 
such  a  restriction  could  be  author- 
ized by  any  legislative  body  under 
our  form  of  government."  In  re 
Sam  Kee,  31  Fed.  680;  City  of 
Shreveport  v.  Robinson,  51  La.  Ann. 
1314. 

Regulations  respecting  laundries 
held  valid.  Soon  Hing  v.  Crowley, 
113  U.  S.  703;  Ex  parte  Moynier,  65 
Cal.  33;  In  re  Hang  Kie,  69  Cal.  149; 
City  of  New  Orleans  v.  Kee,  107  La. 
762,  31  So.  1014. 

The  powers  exercised  as  to  slaugh- 
ter houses:  Butchers'  Union  Slaugh- 
ter House  &  L.  S.  Landing  Co.  v. 
Crescent  City  Live  Stock  Landing 
&  S.  H.  Co.,  Ill  U.  S.  746;  Barthet  v. 
City  of  New  Orleans,  24  Fed.  563; 
Cocker  v.  Du  Village  Du  Coteau 
Landing,  16  Rap.  Jud.  Que.  C.  S.  72; 
Boyd  v.  City  Council  of  Montgomery, 
117  Ala.  677;  Ex  parte  Shrader,  33 
Cal.  279;  Ex  parte  Heilbron,  65  Cal. 
609;  Tugman  v.  City  of  Chicago,  78 
111.  405;  Huesing  v.  City  of  Rock 
Island,  128  111.  465;  Harmison  v. 
Lewistown,  153  111.  313;  Rund  v. 
Town  of  Fowler,  142  Ind.  214;  Beil- 
ing  v.  City  of  Evansville,  144  Ind. 
644;  Beckham  v.  Brown,  19  Ky.  L.  R. 
519,  40  S.  W.  684;  Berthin  v.  Cres- 


§  123 


POLICE  POWER. 


229 


trades  and  occupations.98     These   regulations  may  also  require 
the  possession  of  certain  qualifications  or  a  minimum  knowledge 


cent  City  Live-Stock  Landing  &  S. 
H.  Co.,  28  La.  Ann.  210;  Sawyer  v 
State  Board  of  Health,  125  Mass. 
182;  City  of  Cambridge  v.  Trelegan, 
181  Mass.  565,  64  N.  E.  204;  Wre- 
ford  v.  People,  14  Mich.  41;  City  of 
St.  Paul  v.  Smith,  25  Minn.  372. 
Ordinance  does  not  apply  to  the 
killing  and  dressing  of  a  single  ani- 
mal. City  of  St.  Paul  v.  Byrnes,  38 
Minn.  176;  City  of  St.  Louis  v.  How- 
ard, 119  Mo.  41;  Cronin  v.  People, 
82  N.  Y.  318;  City  of  Portland  v. 
Meyer,  32  Or.  368;  City  of  Spokane 
v.  Robison,  6  Wash.  547;  City  of  Mil- 
waukee v.  Gross,  21  Wis.  241;  Hahn 
v.  Thornberry,  70  Ky.  (7  Bush) 
406;  Pflngst  v.  Senn,  94  Ky.  556,  23 
S.  W.  358.  The  principle  applied  in 
the  following  cases  to  the  occupa- 
tions designated: 

Brick  kilns:  Ward  v.  Washing- 
ton Corp.,  4  Cranch,  C.  C.  232,  29 
Fed.  Gas.  No.  17,163;  State  v.  St. 
Louis  Board  of  Health,  16  Mo.  App. 
8;  Kirchgraber  v.  Loyd,  59  Mo.  App. 
59;  Huckenstine's  Appeal,  70  Pa. 
102. 

Distilleries:  Smith  v.  McConathy, 
11  Mo.  517. 

Lime  kilns;  not  ordinarily  a  nui- 
sance: State  v.  Mott,  61  Md.  297; 
Reynolds  v.  Schultz,  34  How.  Pr.  (N. 
Y.)  147;  Slight  v.  Gutzlaff,  35  Wis. 
€75. 

Manufactories  or  establishments 
with  noisome  odors:  Liebig  Mfg. 
Co.  v.  Wales  (Del.)  34  Atl.  902; 
First  Municipality  of  New  Orleans 
v.  Blineau,  3  La.  Ann.  688;  Inhab- 
itants of  Winthrop  v.  Farrar,  93 
Mass.  (11  Allen)  398;  Zylstra  v. 
City  of  Charleston,  1  Bay  (S.  C.) 
382;  Brantree  Board  of  Health  v. 
Boyton,  52  Law  T.  (N.  S.)  99. 


Rendering  and  fertilizing  estab- 
lishments: Northwestern  Fertilizing 
Co.  v.  Village  of  Hyde  Park,  97  U. 
S.  659;  State  v.  Luce,  9  Houst.  (Del.) 
396;  City  of  Athens  v.  Georgia  R. 
Co.,  72  Ga.  800;  City  of  Taunton  v. 
Taylor,  116  Mass.  254;  Sawyer  v. 
State  Board  of  Health,  125  Mass. 
182;  Board  of  Health  of  Hamilton 
Tp.  v.  Neidt  (N.  J.  Eq.)  19  Atl.  318; 
Manhattan  Mfg.  &  Fertilizing  Co.  v. 
Van  Keuren,  23  N.  J.  Eq.  (8  C.  E. 
Green)  251;  Garrett  v.  State,  49  N. 
J.  Law,  94;  Board  of  Health  of  North 
Brunswick  Tp.  v.  Lederer,  52  N.  J. 
Eq.  675;  Weil  v.  Schultz,  33  How. 
Pr.  (N.  Y.)  7;  Schuster  v.  Metro- 
politan Board  of  Health,  49  Barb. 
(N.  Y.)  450. 

Tanneries:  May  v.  People,  1  Colo. 
App.  157;  Lippman  v.  City  of  South 
Bend,  84  Ind.  276;  Kennedy  v. 
Phelps,  10  La.  Ann.  227;  Weil  v. 
Ricord,  24  N.  J.  Eq.  (9  C.  E.  Green) 
169;  State  v.  Cadwalader,  36  N.  J. 
Law,  283. 

Miscellaneous:  Town  of  Arka- 
delphia  v.  Clark,  52  Ark.  23;  Green 
v.  City  of  Savannah,  6  Ga.  1.  Rice 
growing.  City  of  St.  Louis  v.  Frein, 
9  Mo.  App.  590.  Quarry.  City  of 
Kansas  v.  McAleer,  31  Mo.  App. 
433;  Town  Council  of  Somerville 
v.  Pressley,  33  S.  C.  56.  Rice  grow- 
ing. Town  of  Davis  v.  Davis,  40  W. 
Va.  464. 

98  O'Dell  v.  City  of  Atlanta,  97  Ga. 
670,  25  S.  E.  173;  Com.  v.  Reid,  175 
Mass.  325, — pool  selling;  State  v. 
Schoenig,  72  Minn.  528;  State  v. 
Beattie,  16  Mo.  App.  131, — livery 
stable;  State  v.  Fisher,  52  Mo.  174, 
— rendering  establishment;  City  of 
St.  Louis  v.  Fischer,  167  Mo.  654, — 
dairy;  New  York  Sanitary  Utiliza- 


230                                             POWERS.  §  123 

of  certain  branches  of  study  or  trades  by  those  desiring  to  pursue 

a  certain  calling,  occupation  or  profession.     These,  so  long  as 
they  are  ufiiform  in  their  application,  reasonable  and  pertinent, 

will  be  considered  valid."     The  state  may  also  require  the  se- 

tion  Co.  v.  Dept.  of  Health  of  New  men  as  citizens  to  engage  in  any 

York,  61  App.  Div.  106,  70  N.  Y.  and  every  profession,  occupation,  or 

Supp.  510.  An  act  prohibiting  the  employment  in  civil  life.  It  cer- 

carrying  on  of  the  business  of  ren-  tainly  cannot  be  affirmed,  as  an  his- 

dering  held  unconstitutional  as  not  torical  fact,  that  this  has  ever  been 

a  proper  exercise  of  the  police  pow-  established  as  one  of  the  funda- 

er.  mental  privileges  and  immunities 

as  Barbers:  Fillmore  v.  Van  of  the  sex.  On  the  contrary,  the 

Horn,  129  Mich.  52,  88  N.  W.  69;  civil  law,  as  well  as  nature  herself, 

State  v.  Zeno,  79  Minn.  80,  81  N.  has  always  recognized  a  wide  dif- 

W.  748;  Ex  parte  Lucas,  160  Mo.  ference  in  the  respective  spheres 

218.  and  destinies  of  man  and  woman. 

Dentists:  Gosnell  v.  State,  52  Man  is,  or  should  be,  woman's  pro- 
Ark.  228;  Patrick  v.  Ferryman,  52  tector  and  defender.  The  natural 
111.  App.  514;  People  v.  Illinois  and  proper  timidity  and  delicacy 
State  Board  of  Dental  Examiners,  which  belongs  to  the  female  sex 
110  111.  180;  Illinois  State  Board  of  evidently  unfits  it  for  many  of  the 
Dental  Examiners  v.  People,  123  occupations  of  civil  life.  The  con- 
Ill.  227;  Ferner  v.  State,  151  Ind.  stitution  of  the  family  organiza- 
247;  State  v.  Creditor,  44  Kan.  565;  tion,  which  is  founded  in  the  di- 
Knowles  v.  State,  87  Md.  204;  Wil-  vine  ordinance,  as  well  as  in  the 
liams  v.  State  Board  of  Dental  Ex-  nature  of  things,  indicates  the 
aminers,  93  Tenn.  619.  domestic  sphere  as  that  which  prop- 

Intelligence  offices  and  labor  agen-  erly  belongs  to  the  domain  and 

cies:  Keim  v.  City  of  Chicago,  46  functions  of  womanhood.  *  *  * 

111.  App.  445;  State  v.  Von  Sachs,  In  the  nature  of  things  it  is  not 

45  La.  Ann.  1416.  An  ordinance  re-  every  citizen  of  every  age,  sex,  and 

quiring  a  bond  of  a  labor  agency  condition  that  is  qualified  for  every 

held  unconstitutional.  calling  and  position.  It  is  the  pre- 

Lawyers:  Cummings  v.  State  of  rogative  of  the  legislature  to  pre- 
Missouri,  71  U.  S.  (4  Wall.)  277;  Ex  scribe  regulations  founded  on  na- 
parte  Garland,  71  U.  S.  (4  Wall.)  ture,  reason,  and  experience  for  the 
333;  In  re  Lockwood,  154  U.  S.  116;  due  admission  of  qualified  persons 
In  re  Dorsey,  7  Port.  (Ala.)  293;  Co-  to  professions  and  callings  demand- 
hen  v.  Wright,  22  Cal.  293;  Ex  parte  ing  special  skill  and  confidence. 
Yale,  24  Cal.  241;  In  re  Thomas,  16  This  fairly  belongs  to  the  police 
Colo.  441;  Ex  parte  Law,  35  Ga.  power  of  the  state;  and  in  my  opin- 
285;  In  re  Bradwell,  55  111.  535;  ion,  in  view  of  the  peculiar  charac- 
Bradwell  v.  State  of  Illinois,  83  U.  teristics,  destiny,  and  mission  of 
S.  (16  Wall.)  130.  In  the  opinion  woman,  it  is  within  the  province  of 
of  Judge  Bradley,  page  141,  the  fol-  the  legislature  to  ordain  what  offi- 
lowing  is  found:  "It  is  one  of  the  ces,  positions,  and  callings  shall  be 
privileges  and  immunities  of  wo-  filled  and  discharged  by  men,  and 


§  123 


POLICE  POWER. 


231 


curing  of  a  license  from  the  proper  authorities  before  certain 


shall  receive  the  benefit  of  those  en- 
ergies and  responsibilities,  and  that 
decision  and  firmness  which  are 
presumed  to  predominate  in  the 
sterner  sex."  In  re  Leach,  134  Ind. 
665;  State  v.  Start,  7  Iowa,  499;  In 
re  Mills,  1  Mich.  392;  State  v.  Wat- 
kins,  3  Mo.  480;  Austin  v.  State, 
10  Mo.  591;  Ricker's  Petition,  66  N. 
H.  207;  Ex  parte  Fisher,  6  Leigh 
(Va.)  619;  Presby  v.  Klickitat  Coun- 
ty, 5  Wash.  329;  Cooley,  Torts,  pp. 
289  et  seq. 

Livery  stable  keepers:  Phillips 
v.  City  of  Denver,  19  Colo.  179.  But 
such  a  regulation  must  be  reason- 
able. Coker  v.  Birge,  10  Ga.  336; 
Rowland  v.  City  of  Chicago,  108  111. 
496;  City  of  Chicago  v.  Stratton, 
162  111.  494;  reversing  58  111.  App. 
539;  Shiras  v.  Olinger,  50  Iowa, 
571;  Williams  v.  Garignes,  30  La. 
Ann.  1094,  defining  a  livery  stable; 
Hastings  v.  Aiken,  67  Mass.  (1 
Gray)  163;  City  of  Newton  v.  Joyce, 
166  Mass.  83;  State  v.  Beattie,  16 
Mo.  App.  131;  City  of  St.  Louis  v. 
Russell,  116  Mo.  248;  Kirkman  v. 
Handy,  30  Tenn.  (11  Humph.)  406. 

Plumbers:  United  States  v.  Ross, 
5  App.  D.  C.  241;  State  v.  Gardner, 
58  Ohio  St.  599;  People  v.  Warden 
of  City  Prison,  81  Hun,  434,  30  N. 
Y.  Supp.  1095,  affirmed  144  N.  Y. 
529;  State  v.  Benzenberg,  101  Wis. 
172. 

Physicians  and  surgeons:  Rich- 
ardson v.  State,  47  Ark.  562;  Love 
v.  Sheffelin,  7  Fla.  40;  Great  West- 
ern R.  Co.  v.  Bacon,  30  111.  347; 
Eastman  v.  People,  71  111.  App.  236. 
A  statutory  provision  will  be  valid 
requiring  a  license  for  practice  in 
osteopathy  but  the  discrimination 
against  a  particular  school  of  medi- 
cine is  unconstitutional.  See, 


Driscoll  v.  Com.,  93  Ky.  393. 
France  v.  State,  57  Ohio  St.  1;  Peo- 
ple v.  Arendt,  60  111.  App.  89;  Har- 
baugh  v.  City  of  Monmouth,  74  111. 
367;  Williams  v.  People,  121  111.  84; 
Eastman  v.  State,  109  Ind.  278;  Orr 
v.  Meek,  111  Ind.  40;  State  v.  Web- 
ster, 150  Ind.  607;  Massie  v.  Mann, 
17  Iowa,  131;  Robinson  v.  Hamil- 
ton, 60  Iowa,  134;  Iowa  Eclectic 
Medical  College  Ass'n  v.  Schrader, 
87  Iowa,  659;  State  v.  Bair,  112  Iowa, 
466;  Hargan  v.  Purdy,  93  Ky.  424; 
Allopathic  State  Board  of  Medical 
Examiners  v.  Fowler,  50  La.  Ann. 
1358,  24  So.  809;  Hewitt  v.  Char- 
ier, 33  Mass.  (16  Pick.)  353;  Com. 
v.  Roswell,  173  Mass.  119;  Wheeler 
v.  Sawyer  (Me.)  15  Atl.  67.  A 
"Christian  Scientist"  may  practice 
upon  securing  a  certificate  of-  good 
moral  character  as  required  by 
statute.  People  v.  Phippin,  70  Mich. 
6;  State  v.  State  Medical  Examining 
Board,  32  Minn.  324;  State  v.  Hath- 
away, 115  Mo.  36;  Dee  v.  State,  68 
Miss.  601;  Craig  v.  Board  of  Med- 
ical Examiners,  12  Mont.  203; 
Dogge  v.  State,  17  Neb.  140;  Gee 
Wo  v.  State,  36  Neb.  241;  State  v. 
Buswell,  40  Neb.  158.  Nebraska 
statutes  relative  to  the  practice  of 
medicine  include  persons  healing 
by  "Christian  Science."  In  re  Roe 
Chung,  9  N.  M.  130,  49  Pac.  952; 
Ex  parte  Spinney,  10  Nev.  323; 
White  v.  Carroll,  42  N.  Y.  161;  Peo- 
ple v.  Fulda,  52  Hun  (N.  Y.)  65; 
State  v.  Van  Doran,  109  N.  C.  864; 
State  v.  Call,  121  N.  C.  643;  Wert 
v.  Clutter,  37  Ohio  St.  347;  France 
v.  State,  57  Ohio  St.  1;  State  v. 
Coleman,  64  Ohio  St.  377;  State  v. 
Randolph,  23  Or.  74;  Paquin  v.  State 
Board  of  Health,  19  R.  I.  365. 

State  Board  of  Health  v.  Roy,  22 


232 


POWERS. 


§  123 


trades  or  occupations  can  be  followed.100     The  power  also  in- 
cludes the  imposition  of  license  fees  to  defray  expenses  connected 


R.  I.  538.  The  authority  given  the 
state  board  of  health  to  revoke  a 
certificate  to  practice  medicine  for 
grossly  unprofessional  conduct  is 
constitutional,  not  conferring  judi- 
cial powers  on  the  board  in  violation 
of  the  constitution.  Antle  v.  State, 
6  Tex.  App.  202;  People  v.  Has- 
brouck,  11  Utah,  291,  39  Pac.  918; 
State  v.  Carey,  4  Wash.  424;  State 
v.  Dent,  25  W.  Va.  1;  State  v.  Cur- 
rens,  111  Wis.  431,  87  N.  W.  561, 
citing  many  cases. 

Pharmacists  and  druggists:  Peo- 
ple v.  Moorman,  86  Mich.  434;  State 
v.  Forcier,  65  N.  H.  42;  Suffolk  Coun- 
ty v.  Shaw,  21  App.  Div.  146,  47  N. 
Y.  Supp.  349;  Mon  Luck  v.  Sears, 
29  Or.  421;  State  v.  Heinemann,  80 
Wis.  253. 

Steam  engineers:  Louisville  &  N. 
R.  Co.  v.  Baldwin,  85  Ala.  619;  State 
v.  McMahon,  65  Minn.  453. 

Miscellaneous:  Merrill  v.  Cahill,  8 
Mich.  55.  Millers  and  mill  owners. 
City  of  St.  Paul  v.  Traeger,  25  Minn. 
248;  City  of  St.  Louis  v.  Meyrose 
Lamp  Mfg.  Co.,  139  Mo.  560,  41  S.  W. 
244.  The  court  here  said:  "Such  or- 
dinances merely  prescribe  regula- 
tions for  the  orderly  conduct  of  a 
very  necessary  *  *  *  business 
In  the  large  centers  of  popula- 
tion." City  of  St.  Louis  v.  Knox, 
74  Mo.  79;  City  of  St.  Louis  v.  Weit- 
zel,  130  Mo.  600;  White  v.  Kent,  11 
Ohio  St.  550.  Auction  sales.  See, 
also,  generally,  §§  132,  and  those, 
post,  relating  to  license  fees  and  the 
granting  of  licenses. 

100  State  v.  Orr,  68  Conn.  101;  Noel 
v.  People,  187  111.  587, — pharmacists; 
Bessette  v.  People,  193  111.  334,— 
horse-shoeing;  City  of  Chicago  v. 
Netcher,  183  111.  104,  55  N.  E.  707. 


The  court  here  discuss  the  restric- 
tions thrown  about  the  police  pow- 
er, and  say  in  part:  "In  order 
to  sustain  legislative  interference 
with  the  business  of  the  citizen  by 
virtue  of  the  police  power  it  is  neces- 
sary that  the  act  should  have  some 
reasonable  relation  to  the  subjects 
included  in  the  power.  If  it  is  claim- 
ed that  the  statute  or  ordinance  is 
referable  to  the  police  power  the 
court  must  be  able  to  see  that  it 
tends  in  some  degree  towards  the 
prevention  of  offenses  or  the  pres- 
ervation of  the  public  health,  mor- 
als, safety  or  welfare."  An  ordi- 
nance prohibiting  the  sale  of  meat 
and  other  articles  in  a  place  where 
dry  goods  and  other  specified  mer- 
chandise is  sold  was  therefore  held 
void  on  the  ground  of  an  invasion  of 
private  rights  under  the  guise  of  the 
police  power.  Wilkie  v.  City  of  Chi- 
cago, 188  111.  444,  58  N.  E.  1004,— 
plumbers;  Com.  v.  Hubley,  172  Mass. 
58,  51  N.  E.  448;  City  of  Grand  Rap- 
ids v.  De  Vries,  123  Mich.  570;  State 
v.  McMahon,  69  Minn.  265,  72  N.  W. 
79;  State  v.  Wagener,  77  Minn.  483, 
80  N.  W.  633,  778,  1134;  State  v. 
Ashbrook,  154  Mo.  375, — an  act 
classifying  dealers  in  merchandise 
held  unconstitutional;  City  of  Buffa- 
lo v.  Schleifer,  2  Misc.  216,  21  N.  Y. 
Supp.  913;  Dunham  v.  Trustees  of 
Rochester,  5  Cow.  (N.  Y.)  462, — 
requiring  license  of  hucksters;  Ros- 
enbaum  v.  City  of  Newbern,  118  N. 
C.  83.  In  State  v.  Hill,  126  N.  C. 
1139,  a  city  ordinance  relating  to 
scavenger  work,  in  the  absence  of  a 
showing  that  it  was  reasonable, 
necessary  and  just,  was  held  uncon- 
stitutional. In  Borough  of  Shamo- 
kin  v.  Flannigan,  156  Pa.  43,  an  or- 


§  123 


POLICE  POWER. 


233 


necessarily  with  supervision  having  for  its  object  the  preserva- 
tion of  the  public  health.101 

The  requirement  that  the  license  necessary  shall  only  be  issued 
by  certain  officers  after  investigation,  has  been  held  not  an  im- 
proper delegation  of  the  power.102  There  exist  as  limitations 
upon  all  regulations  or  attempted  regulations  by  the  state,  con- 
stitutional provisions  protecting  personal  rights  and  property. 
These  regulations  are  also  subject  to  the  general  principles  of 
law  that  they  should  be  uniform,  certain  and  impartial  in  their 
application.103  Guaranties  limiting  the  exercise  of  the  police  pow- 
er in  respect  to  the  matters  suggested  in  this,  as  well  as  suc- 
ceeding sections,  are  to  be  found  in  those  general  constitutional 
provisions  relative  to  life,  liberty  and  the  pursuit  of  happiness 
and  the  special  provisions  pertaining  to  personal  liberty  and  se- 
curity including  express  or  implied  prohibitions  of  imprisonment 
for  debt;  religious  liberty  and  freedom  of  conscience;  the  right 
to  acquire,  hold  and  dispose  of  property  and  to  contract;  free- 
dom of  speech;  the  right  of  assembly  and  petition;  the  destruc- 


dinance  requiring  the  securing  of  a 
license  for  selling  goods  from  house 
to  house  not  applying  to  residents 
of  a  borough  held  a  discriminating 
trade  regulation  and  void;  and  in 
Brownback  v.  Borough  of  North 
Wales,  194  Pa.  609,  an  ordinance  to 
the  same  effect  but  making  no  such 
discrimination  was  sustained  as  a 
valid  exercise  of  the  police  power. 
See,  also,  as  holding  with  Borough 
of  Shamokin  v.  Flannigan,  supra, 
City  of  Saginaw  v.  McKnight,  106 
Mich.  32,  63  N.  W.  985,  and  Clem- 
ents v.  Town  of  Casper,  4  Wyo.  494, 
35  Pac.  472.  See,  also,  generally 
§§  398  to  407,  post,  relating  to 
license  fees. 

101  City  of  Fayetteville  v.  Carter,  52 
Ark.  301;  City  of  Hot  Springs  v. 
Curry,  64  Ark.  152;  Atkins  v.  Phil- 
lips, 26  Fla.  281,  8  So.  429;  Mestay- 
er  v.  Corrige,  38  La.  Ann.  707;  Ex 
parte  Canto,  21  Tex.  App.  61;  Horr. 
&  Bemis,  Mun.  Ord.,  §  128. 


102  Louisville  Gas  Co.  v.  Citizens' 
Gas  Co.,  115  U.  S.  683;  Overshiner  v. 
State,   156    Ind.    187.     In   People   v. 
Hurlbut,  24  Mich.  44,  the  court  said 
in  speaking  of  this  point:    "The  leg- 
islature in  prescribing  new  rules  has 
necessarily  a  large  discretion  as  to 
whether    the    agencies    for    putting 
them   in    force   shall  be  named   by 
themselves   or   delegated."     Com.   v. 
Baldwin,  14  Phila.  (Pa.)  93;  Com.  v. 
Vrooman,  164  Pa.  306;   State  v.  Ha- 
good,  30  S.  C.  519. 

103  Tugman  v.  City  of  Chicago,  78 
111.  405;    Lasher  v.  People,   183   111. 
226,  55  N.  E.   663.    Regulations  are 
not  invalid  if  based  upon  a  classifica- 
tion resting  on  a  reasonable  ground 
of   difference.     State  v.   Manner,  43 
La.  Ann.  496;    followed  in  State  v. 
Dulaney,  43  La.  Ann.  500;   State  v. 
Garibaldi,  44  La.  Ann.  809;  State  v. 
Sarradat,  46  La.  Ann.  700;  State  v. 
Kuntz,    47   La.   Ann.    106;    Town   of 
Crowley   v.   West,  52  La.  Ann.   526. 


234 


POWERS. 


124 


tion  or  impairment  of  vested  or  property  rights;  the  taking  of 
private  property  without  payment  of  just  compensation  or  the 
taking  of  life,  liberty  or  property  without  due  process  of  law.104 
The  determination  of  the  validity  of  all  the  regulations  consid- 
ered in  this  section  is  a  judicial  question,  not  legislative.105 

§  124.    Inspection  of  foods. 

The  state,  or  the  state  through  any  of  its  properly  delegated 
agents,  in  the  proper  exercise  of  the  police  power  looking  to  the 
preservation  of  the  public  health,  can  pass  laws,  rules  and  regula- 
tions providing  for  the  inspection  of  foods,106  places  of  food  sup- 


104  Slaughter  House  Cases,   83   U. 
S.    (16  Wall.)    36;    Boyd   v.   United 
States,  116  U.  S.  616;   State  v.  Wil- 
liams, 68  Conn.  131;  Beebe  v.  State, 
6  Ind.  501.    See  Tiedeman,  State  & 
Fed.    Control    of   Persons   &   Prop.; 
Horr.  &  Bemis,  Mun.  Ord.,  §§  83  et 
seq.,    and    211    et    seq.;    McQuillin, 
Mun.   Ord.    §§    29   et   seq.;    10   Cen- 
tury   Digest,    column    1467    et    seq. 
See,    also,    authorities    cited    under 
§§  115-117,  ante. 

105  Price   v.    People,   193    111.    114, 
citing  Town  of  Lake  View  v.  Rose 
Hill  Cemetery  Co.,  70  111.  191,  Ritch- 
ie  v.  People,  155  111.  98,  and  Booth  v. 
People,  186  111.  43. 

loe  State  v.  Campbell,  64  N.  H. 
402,  13  Atl.  585;  Guillotte  v.  City  of 
New  Orleans,  12  La.  Ann.  432;  Gray 
v.  City  of  Wilmington  (Md.)  43  Atl. 
94;  City  of  Buffalo  v.  Collins  Baking 
Co.,  39  App.  Div.  432,  57  N.  Y.  Supp. 
347.  Ordinance  regulating  weight 
of  bakers'  bread  held  void  as  being 
an  unreasonable  limitation  on  right 
to  engage  in  a  lawful  trade.  See, 
also,  City  of  Rochester  v.  West,  29 
App.  Div.  (N.  Y.)  125;  Ford  v. 
Standard  Oil  Co.,  32  App.  Div.  (N. 
Y.)  596.  But  see  People  v.  Wagner, 
86  Mich.  594,  holding  an  ordinance 
valid  regulating  "the  weight  and 
quantity  of  bread,  the  size  of  the 


loaf  and  the  inspection  thereof." 
See  the  following  cases  especially 
relating  to  the  inspection,  sale  and 
adulteration  of  milk:  Johnson  v. 
Simonton,  43  Cal.  242;  State  v. 
Schlecker,  112  Iowa,  642;  State  v. 
Fourcade,  45  La.  Ann.  717;  State  v. 
Stone,  46  La.  Ann.  147;  Deems  v. 
City  of  Baltimore,  80  Md.  164;  Com. 
v.  Flannelly,  81  Mass.  (15  Gray) 
195;  Com.  v.  Waite,  93  Mass.  (11  Al- 
len) 264;  Com.  v.  Smith,  103  Mass. 
444;  Id.,  141  Mass.  135;  Com.  v. 
Wetherbee,  153  Mass.  159;  State  v. 
Nelson,  66  Minn.  166;  Littlefield  v. 
State,  42  Neb.  223;  State  v.  Camp- 
bell, 64  N.  H.  402;  Polinsky  v.  Peo- 
ple, 73  N.  Y.  65;  People  v.  Cipperly, 
101  N.  Y.  634;  People  v.  West,  106 
N.  Y.  293;  Com.  v.  Weiss,  139  Pa. 
247;  State  v.  Groves,  15  R.  I.  208. 

Cases  passing  upon  laws  relating 
to  .the  inspection  and  sale  of  oleo- 
margarine or  other  substitutes  for 
butter.  Powell  v.  Pennsylvania,  127 
U.  S.  678,  sustaining  Pennsylvania 
Oleomargarine  Act  of  May  21,  1885; 
United  States  v.  Eaton,  144  U.  S. 
677;  State  of  Ohio  v.  Thomas,  173 
U.  S.  276;  Capital  City  Dairy  Co.  v. 
State  of  Ohio,  183  U.  S.  238;  affirm- 
ing 62  Ohio  St.  350;  United  States 
v.  Ford,  50  Fed.  467;  Armour  Pack- 
ing Co.  v.  Scyder,  84  Fed.  136;  Wil- 


124 


POLICE  POWER. 


235 


ply,107  drugs  and  other  articles  intended  for  use  or  consumption; 
regulating  their  sale,108  and  confiscating  and  destroying  such  ar- 


kins  v.  United  States,  96  Fed.  837; 
Cook  v.  State,  110  Ala.  40;  State 
v.  Snow,  81  Iowa,  642;  Pierce  v. 
State,  63  Md.  592;  Com.  v.  Farren, 
91  Mass.  (9  Allen)  489;  Com.  v.  Car- 
ter, 132  Mass.  12;  Com.  v.  Huntley, 
156  Mass.  236;  Com.  v.  Kelly,  163 
Mass.  169;  State  v.  Bassett,  50  Minn. 
5;  Kansas  City  v.  Cook,  38  Mo.  App. 
660;  State  v.  Addington,  77  Mo. 
110;  State  v.  Marshall,  64  N.  H.  549; 
In  re  Powell,  10  N.  J.  Law  J.  25; 
Shivers  v.  Newton,  45  N.  J.  Law, 
469;  Waterbury  v.  Newton,  50  N.  J. 
Law,  534;  Dibble  v.  Hathaway,  11 
Hun  (N.  Y.)  571;  People  v.  McGann, 
34  Hun  (N.  Y.)  358;  People  v.  Ker- 
in,  39  Hun  (N.  Y.)  631;  People  v. 
Mahaney,  41  Hun  (N.  Y.)  26;  Peo- 
ple v.  Arensberg,  105  N.  Y.  123; 
Palmer  v.  State,  39  Ohio  St.  236; 
State  v.  Dunbar,  13  Or.  591;  Com. 
v.  Miller,  131  Pa.  118;  Com.  v.  Shir- 
ley, 152  Pa.  170;  State  v.  Smyth, 
14  R.  I.  100. 

Unwholesome  foods.  In  re  Ware, 
53  Fed.  783, — baking  powder  con- 
taining alum;  Schmidt  v.  State,  78 
Ind.  41, — diseased  meats;  Com.  v. 
Raymond,  97  Mass.  567, — veal  less 
than  4  weeks  old;  State  v.  Snyder, 
44  Mo.  App.  429;  People  v.  Parker, 
38  N.  Y.  85, — unwholesome  meat; 
People  v.  Girard,  73  Hun  (N.  Y.) 
457 — adulterated  vinegar;  State  v. 
Smith,  10  N.  C.  (3  Hawks)  378; 
State  v.  Norton,  24  N.  C.  (2  Ired.) 
40;  Weller  v.  State,  53  Ohio  St.  77. 
Statutes  or  ordinances  which  pro- 
vide regulations  for  the  inspection 
end  sale  of  provisions  must  not  on- 
ly comply  with  general  constitution- 
al provisions  in  order  to  be  valid,  but 
must  also  be  so  worded  and  have  on- 
ly such  operation  as  to  prevent  their 


being  unconstitutional  because  of  an 
interference  with  or  regulating  in- 
terstate commerce.  See  the  follow- 
ing cases  among  many  others  upon 
this  proposition:  State  of  Minneso- 
ta v.  Barber,  136  U.  S.  313;  Brim- 
mer v.  Rebman,  138  U.  S.  78;  Swift 
v.  Sutphin,  39  Fed.  630;  In  re  Bar- 
ber, 39  Fed.  641;  State  v.  Klein,  126 
Ind.  68;  Hoffman  v.  Harvey,  128  Ind. 
600. 

107  Monroe   v.    City    of    Lawrence, 
44    Kan.    607;    State   v.   Nelson,    66 
Minn.    166,    68    N.   W.    1066,— tuber- 
culosis   in    dairy    herds.      An    ordi- 
nance  provided   that   all   milk   sold 
in   the   city   of   Minneapolis   should 
come    only    from    dairy    herds    that 
had    been    inspected    and    subjected 
satisfactorily  to  a  certain  test.    The 
objection    was   made    that    the   pro- 
vision was  unconstitutional  as  being 
extra-territorial.     The     court     said: 
"The  provisions  of  the  ordinance  in 
that  regard  go  only  so  far  as  it  is 
reasonably  necessary  to  prevent  the 
milk    of    diseased   cows   being    sold 
within  the  city.     *     *    *     The  ordi- 
nance has  no  extra-territorial  opera- 
tion.   The  only  subject  upon  which 
it  operates  is  the  sale  of  milk  within 
the  city." 

108  in   re  Ah  Lung,  45    Fed.    684; 
City  of  Jacksonville  v.  Ledwith,   26 
Fla.  163,  7  So.  885;  Frost  v.  City  of 
Chicago,   178   111.   250;    City  of  Chi- 
cago v.  Netcher,  183  111.  104.     An  or- 
dinance prohibiting  the  sale  of  pro- 
visions  in  the  same   place  of  busi- 
ness   where   dry   goods,   clothing  or 
drugs  are  sold,  held  unconstitution- 
al. 

Isenhour  v.  State,  157  Ind.  517; 
State  v.  Schlenker,  112  Iowa,  642, 
84  N.  W.  698.  The  legislative  def- 


236 


POWERS. 


125 


tides  if  found  unwholesome  or  unfit.  The  limitations  upon  the 
exercise  of  the  power  in  this  particular  are  much  the  same  as 
those  against  the  exercise  of  the  power  in  other  respects.  Such 
regulations  must  operate  uniformly  and  not  discriminate  as  be- 
tween individuals  or  localities;109  must  be  reasonable,  have  for 
their  real  purpose  the  accomplishment  of  a  lawful  result,  and 
come  within  the  constitutional  provisions  protecting  personal 
and  property  rights.  Before  articles  condemned  as  unwhole- 
some can  be  destroyed  or  confiscated  it  has  been  held  by  some 
courts  that  there  must  be  some  proceeding  provided  at  which 
the  party  whose  property  is  affected  can  appear  upon  notice  and 
have  an  opportunity  to  defend  the  findings  or  charges  made.110 

§  125.    Regulations  as  to  the  construction  and  use  of  buildings. 

Another  valid  exercise  of  the  police  power  by  the  state  is  the 

adoption  of  rules  and  regulations  in  regard  to  the  construction 


inition  of  adulterated  milk  as  the 
"addition  of  water  or  any  other  sub- 
stance or  thing"  to  milk  "is  hereby 
declared  an  adulteration"  held  not 
an  unconstitutional  invasion  of  the 
province  of  the  judiciary. 

State  v.  Stone,  46  La.  Ann.  147; 
Dickhaut  v.  State,  85  Md.  451;  State 
v.  Davidson,  50  La.  Ann.  1297,  24 
So.  324;  City  of  New  Orleans  v. 
Lozes,  51  La.  Ann.  1172;  Deems  v. 
City  of  Baltimore,  80  Md.  164,  30 
Atl.  648;  Sterens  v.  State,  89  Md. 
669,  43  Atl.  919;  People  v.  Wagner, 
86  Mich.  594,  ordinance  regulating 
weight  of  loaves  of  bread  held 
valid;  People  v. Rotter,  131  Mich. 250, 
91  N.  W.  167,  and  cases  cited, — oleo- 
margarine; Porter  v.  City  of  Water 
Valley,  70  Miss.  560, 12  So.  828;  State 
v.  Bockstruck,  136  Mo.  335,— oleo- 
margarine; City  of  Kansas  v.  Cook, 
38  Mo.  App.  660;  State  v.  Marshall, 
64  N.  H.  549,  15  Atl.  210,— oleomar- 
garine; Bush  v.  Seabury,  8  Johns. 
(N.  Y.)  327;  Paige  v.  Fazackerly, 
36  Barb.  (N.  Y.)  392;  State  v.  Pen- 
dergrass,  106  N.  C.  664;  Ex  parte 


Canto,  21  Tex.  App.  61;  Teague  v. 
State,  25  Tex.  App.  577,  8  S.  W. 
667;  57  Am.  Rep.  742,  754  and  1 
Am.  St.  Rep.  645,  650. 

io9Tugman  v.  City  of  Chicago,  78 
111.  405;  Pierce  v.  City  of  Aurora,  81 
111.  App.  670, — holding  an  ordinance 
void  for  an  unreasonable  discrim- 
ination; City  of  Cairo  v.  Feuchter, 
159  111.  155;  Zanone  v.  Mound  City, 
103  111.  552;  State  v.  Schlemmer,  42 
La.  Ann.  1166. 

no  Munn  v.  Corbin,  8  Colo.  App. 
113,  44  Pac.  783.  "An  order  author- 
izing the  health  commissioner  to 
condemn  and  cause  to  be  destroyed 
fluid  or  substance  intended  for  food 
or  drink  whenever  satisfied  that  its 
consumption  might  be  injurious  to 
public  health,  does  not  authorize  the 
condemnation  of  such  substance,  ex- 
cept under  extraordinary  circum- 
stances, without  a  trial  before  a  reg- 
ularly organized  tribunal,  in  a  pro- 
ceeding to  which  the  person  whose 
rights  are  to  be  affected  is  a  party, 
and  in  which  the  burden  of  proving 
the  charges  is  upon  the  complain- 


125 


POLICE  POWER. 


237 


and  occupation  of  buildings.111  These  regulations  have  for  their 
direct  purpose  not  only  the  protection  of  life,  limb  and  property, 
but  also  the  preservation  of  the  public  health.  The  use  to  which 
certain  buildings  can  be  put  may  result  in  a  condition  exceed- 
ingly deleterious  to  the  health  and  safety  not  only  of  the  occu- 
pants of  the  buildings  themselves  but  of  persons  in  the  imme- 
diate vicinity,112  and  the  state  in  such  case  has  the  unquestioned 
right  of  regulation.  Through  the  cupidity  or  negligence  of  prop- 
erty owners,  buildings  may  become  unsafe  for  use,  and  the  proper 
exercise  of  the  police  power  by  the  state  includes  the  passing  of 
regulations  remedying  such  condition.113  It  also  includes  the 


ant,  and  in  which  full  opportunity 
is  given  the  adverse  party  to  make 
his  defense." 

in  Easton  Com'rs  v.  Covey,  74 
Md.  262,  22  Atl.  266.  It  is  a 
discretionary  power  on  the  part  of 
commissioners  having  the  construc- 
tion of  buildings  in  charge  to  refuse 
a  desired  permit.  The  court  say: 
"We  think  it  very  clear  that  un- 
der a  general  power  to  pass  such 
ordinances  as  the  commissioners 
may  deem  necessary  and  beneficial 
to  the  town  the  commissioners  may 
pass  any  ordinance  which  they  may 
judge  necessary  and  beneficial,  and 
it  will  be  valid  provided  it  be  rea- 
sonable and  consonant  with  the  gen- 
eral powers  and  purposes  of  the  cor- 
poration and  not  inconsistent  with 
the  laws  and  policy  of  the  state." 

Sprigg  v.  Town  of  Garrett  Park, 
89  Md.  406,  43  Atl.  813;  City  of 
Salem  v.  Maynes,  123  Mass.  372, 
holds  that  such  an  ordinance  applied 
to  one  who  had  already  constructed 
cellar  for  contemplated  building, 
but  see  State  v.  Tenant,  110  N.  C. 
609.  See  City  of  Hudson  v.  Thome, 
7  Paige  (N.  Y.)  261,  for  limitations 
upon  right  to  prohibit  erection  of 
wooden  buildings.  City  of  Troy  v. 
Winters,  2  Hun  (N.  Y.)  63;  Hawke 
v.  Brown,  28  App.  Div.  37,  50  N.  Y 


Supp.  1032;  Signell  v.  Wallace,  38 
Misc.  656,  72  N.  Y.  Supp.  348,  con- 
struing New  York  Laws  of  1901,  c. 
334,  known  as  the  tenement  house 
act  as  amended  by  Laws  of  1901,  c. 
555;  followed  and  further  con- 
strued in  City  of  New  York  v.  Herd- 
je,  68  App.  Div.  370,  74  N.  Y.  Supp. 
104. 

State  v.  Tenant,  110  N.  C.  609. 
An  ordinance  prohibiting  the  erec- 
tion of  a  building  without  permit 
after  a  contractor  had  commenced 
the  construction  of  a  building,  as  to 
such  building  is  void. 

City  of  Philadelphia  v.  Wall,  184 
Pa.  557;  City  of  Sioux  Falls  v.  Kir- 
by,  6  S.  D.  62,  60  N.  W.  156.  The 
legality  of  an  ordinance  requiring 
permit  from  building  inspector  con- 
sidered, with  citation  of  many  cases 
sustaining  the  position  taken.  See 
McQuillin  Mun.  Ord.  §§  470,  471 
with  many  cases  cited;  Horr.  &  Be- 
mis,  Mun.  Ord.  §§  222-223,  and  Park- 
er &  W.  Pub.  Health,  cc.  19,  20. 

112  Inhabitants  of  Brookline  v. 
Hatch,  167  Mass.  380;  People  v.  Ben- 
nett, 83  Mich.  457;  Com.  v.  Charity 
Hospital  of  Pittsburg,  198  Pa.  270. 
See,  also,  18  Am.  Rep.  407. 

us  Woodruff  v.  Bowen,  136  Ind. 
431,  34  N.  E.  1113;  Town  of  Ports- 
mouth v.  Snell,  8  N.  H.  338. 


238 


POWERS. 


§  125 


right  to  control  or  regulate  in  the  first  instance,  having  as  a  pur- 
pose the  protection  of  life,  health,  and  property,  either  the  di- 
mensions,114 the  manner,115  or  the  place  of  construction.116  This 
right  to  regulate  the  construction  of  buildings  extends  to  re- 
pairs117 as  well  as  alterations  or  additions118  and  ornaments  or 


11*  Attorney  General  v.  Williams, 
178  Mass.  330,  59  N.  E.  812.  See, 
also,  Id.,  174  Mass.  476,  55  N.  E.  77; 
People  v.  D'Oench,  111  N.  Y.  359; 
City  of  Cleveland  v.  Lenze,  27  Ohio 
St.  383. 

us  See  cases  collected  in  43  Alb. 
Law  J.  349,  note  by  W.  S.  Gordon; 
Hall  v.  Nixon,  L.  R.  10  Q.  B.  152; 
United  States  v.  Cole,  7  Mackey  (D. 
C.)  504,  and  cases  cited  in  opinion; 
McCulloch  v.  Ayer,  96  Fed.  178,— 
fire  escapes;  Ex  parte  White,  67  Cal. 
102;  Diamond  State  Iron  Co.  v. 
Giles,  7  Houst.  (Del.)  11  Atl.  189; 
Arms  v.  Ayer,  192  111.  601,— fire  es- 
cape regulation  held  valid;  Ward  v. 
City  of  Murphysboro,  77  111.  App. 
549;  Inhabitants  of  Winthrop  v. 
New  England  Chocolate  Co.,  180 
Mass.  464,  62  N.  E.  969;  Hubbard  v. 
City  of  Paterson,  45  N.  J.  Law,  310; 
Morford  v.  Board  of  Health  of  As- 
bury  Park,  61  N.  J.  Law,  386,  39 
Atl.  706,  construing  powers  of 
boards  of  health  as  to  manner  of 
construction  of  buildings;  Stewart 
v.  Com.,  10  Watts  (Pa.)  307;  Bar- 
ter v.  Com.,  3  Pen.  &  W.  (Pa.)  253; 
Kneedler  v.  Borough  of  Norristown, 
100  Pa.  368.  But  in  this  case  it  was 
held  that  a  borough  did  not  have 
the  authority  to  forbid  under  pen- 
alty the  erection  of  wooden  build- 
ings within  certain  limits.  Smith  v. 
Milwaukee  Builders'  &  Traders' 
Exch.,  91  Wis.  360.  See,  also,  Mc- 
Quillin  Mun.  Ord.  §  471,  with  many 
cases  cited. 

us  Phillips  v.  City  of  Denver,  19 
Colo.  179,  34  Pac.  902.  An  ordi- 


nance prohibiting  the  construction 
of  a  livery  stable  in  any  block  in 
which  a  school  building  is  situated 
or  adjacent  without  other  conditions 
held  unreasonable  and  void. 

Village  of  Louisville  v.  Webster, 
108  111.  414;  City  of  Abilene  v.  Cow- 
perthwait,  52  Kan.  324,  34  Pac.  795; 
City  of  Monroe  v.  Hoffman,  29  La. 
Ann.  651.  The  power  to  prohibit 
the  erection  of  a  building  composed 
of  combustible  materials  in  densely 
built  part  of  town  an  inherent  power 
in  municipal  corporations.  But 
State  v.  Schuchardt,  42  La.  Ann.  49, 
7  So.  67,  holds  that  a  municipal 
corporation  in  the  absence  of  legis- 
lative authority  has  no  such  con- 
trol over  the  construction  of  build- 
ings. See,  also,  Pratt  v.  Borough  of 
Litchfield,  62  Conn.  112;  Easton 
Com'rs  v.  Covey,  74  Md.  262,  22  Atl. 
266;  City  of  Baltimore  v.  Radecke, 
49  Md.  228;  Hume  v.  City  of  New 
York,  74  N.  Y.  264;  City  of  Buffalo 
v.  Chadeayne,  134  N.  Y.  165;  Liv- 
ingston v.  Wolf,  136  Pa.  519,  20  Am. 
St.  Rep.  936;  Corporation  of  Knox- 
ville  v.  Bird,  80  Tenn.  (12  Lea)  121, 
47  Am.  Rep;  326;  Beall  v.  City  of 
Seattle,  28  Wash.  593,  69  Pac.  12. 

117  Borough  of  Stamford  v.  Stud- 
well,  60  Conn.  85,  21  Atl.  101;  First 
Nat.  Bank  of  Mt.  Vernon  v.  Sarlls, 
129  Ind.  201, — validity  of  repair  or- 
dinance determined;  City  of  Newton 
v.  Belger,  143  Mass.  598, — building 
ordinance  held  invalid  in  this  case; 
Donohue  v.  Kendall,  50  N.  Y.  Super. 
Ct.  (18  J.  &  S.)  386;  Quigley  v.  H. 
W.  Johrs  Mfg.  Co.,  26  App.  Div.  434, 


§  125 


POLICE  POWER. 


239 


appurtenances.119  The  exercise  of  the  power  in  this  respect  goes 
further  and  includes  the  right  of  inspection  of  buildings  used  for 
certain  purposes  or  by  certain  classes  of  people.  The  right  to  ex- 
ercise the  power  also  carries  with  it  the  right  to  enforce  orders 
or  regulations  of  the  state  or  municipal  authorities  looking  to 
the  demolition  or  the  purification  of  unwholesome,  unsafe  or  in- 
fected premises,120  and  the  enforcement  of  ordinances  having  for 
their  purpose  the  exercise  of  rights  enumerated  in  this  and  other 
sections.  It  has  been  held  that  in  the  exercise  of  the  power  pos- 


50  N.  Y.  Supp.  98, — permit  not  neces- 
sary for  minor  repairs;  Brennan  v. 
Lachat,  14  Daly  (N.  Y.)  197;  Willy 
v.  Mulledy,  78  N.  Y.  310;  Douglass 
v.  Com.,  2  Rawle  (Pa.)  262.  See 
article  by  W.  S.  Gordon  in  43  Alb. 
Law  J.  349. 

us  City  Council  of  Montgomery  v. 
Louisville  &  N.  R.  Co.,  84  Ala.  127; 
Tuttle  v.  State,  4  Conn.  68;  Greene 
v.  Damrell,  175  Mass.  394;  Fire 
Dept.  of  New  York  v.  Wendell,  13 
Daly  (N.  Y.)  430;  City  of  Philadel- 
phia v.  Coulston,  13  Phila.  (Pa.) 
182;  Appeal  of  Brice,  89  Pa.  85; 
Carroll  v.  City  of  Lynchburg,  84  Va. 
803. 

us  State  v.  Clarke,  69  Conn.  371, — 
awning;  Attorney  General  v.  Wil- 
liams, 174  Mass.  476,  and  same  case 
again  in  178  Mass.  330,  59  N.  E. 
812;  City  of  New  York  v.  Wood,  15 
Daly,  341,  6  N.  Y.  Supp.  657;  Bow- 
ers v.  Coulston,  11  Phila.  (Pa.)  182. 

120  Dupree  v.  City  of  Brunswick, 
82  Ga.  727;  O'Rourke  v.  City  of  New 
Orleans,  106  La.  313;  City  of  St. 
Paul  v.  Clark,  84  Minn.  138,  86  N. 
W.  893;  Egan  v.  Health  Dept.  of 
City  of  New  York,  9  App.  Div.  431, 
41  N.  Y.  Supp.  352;  Health  Dept.  of 
City  of  New  York  v.  Dassori,  21 
App.  Div.  348,  47  N.  Y:  Supp.  641. 
The  court  here  held  the  fact  that 
buildings  were  unfit  for  habitation 
did  not  necessarily  involve  the  con- 


clusion that  they  could  not  be  made 
so.  "If  they  ceased  to  be  in  such  a 
condition  as  to  breed  pestilence  and 
spread  disease  and  were  rendered 
innoxious  the  owner  of  them  had  a 
right  to  have  them  remain  upon  the 
premises  even  though  he  might  not 
be  permitted  to  use  them  as  a  tene- 
ment house.  There  are  many  other 
uses  to  which  he  might  lawfully  put 
them,  and  the  undoubted  power  of 
the  public  to  refuse  him  permission 
to  rent  them  to  be  used  for  human 
habitation  did  not  necessarily  in- 
volve the  right  to  destroy  them  if 
they  were  not  fit  for  that  purpose." 
Golden  v.  Health  Dept.  of  City  of 
New  York,  21  App.  Div.  420,  47  N. 
Y.  Supp.  623,  where  the  owner's  rem- 
edy is  discussed.  Smith  v.  Irish,  37 
App.  Div.  220,  55  N.  Y.  Supp.  837. 
See,  also,  People  v.  Board  of  Health 
of  City  of  Yonkers,  140  N.  Y.  1; 
Health  Dept.  of  City  of  New  York 
v.  Trinity  Church,  145  N.  Y.  32; 
Board  of  Health  of  City  of  Yon- 
kers v.  Copcutt,  140  N.  Y.  12,  35 
N.  E.  443.  But  see  Earp  v.  Lee, 
71  111.  193;  Bushnell  v.  Robeson,  62 
Iowa,  540;  Brightman  v.  Inhabitants 
of  Bristol,  65  Me.  426;  Brown  v. 
Perkins,  78  Mass.  (12  Gray)  89; 
Welch  v.  Stowell,  2  Doug.  (Mich.) 
332;  Clark  v.  City  of  Syracuse,  13 
Barb.  (N.  Y.)  32,  and  Miller  v. 
Burch,  32  Tex.  208. 


240  POWERS.  §  126 

sensed,  the  state  or  the  municipal  authorities  can  pass  rules,  regu- 
lations, ordinances  or  laws  capable  of  enforcement  through  the 
imposition  of  penalties  for  their  violation,121  consisting  either  of 
a  fine  or  imprisonment,  or  both.122 

The  limits  of  this  work  will  not  warrant  the  consideration  in 
detail  of  such  ordinances  or  laws  and  the  extent  to  which  penal- 
ties can  be  imposed.  An  examination  of  the  cases  cited  in  the 
notes  may  partially  determine  this,  and  the  subject  has  been 
very  fully  treated  in  a  recent  work.123 

§  126.    Regulation  and  abatement  of  nuisances. 

The  state  in  the  valid  exercise  of  the  police  power  may  adopt, 
subject  to  constitutional  and  other  restrictions  and  limitations 
suggested  in  the  preceding  sections,  such  measures  as  within  the 
discretion  of  the  proper  officials,  acting  in  good  faith,  may  be 
necessary  to  abate  nuisances  detrimental  in  their  character  to 
the  public  health  or  peace  or  the  safety  of  either  life  or  prop- 
erty. Regulations  concerning  the  height  of  fences,  bill-boards,124 
the  storing  of  chemicals,  inflammable  materials,  oils,  explo- 
sives,125 the  carrying  of  concealed  weapons126  or  the  discharge 

121  State  v.  Bright,  38  La.  Ann.  4;  the  structures  in  question     *     *     * 
State  v.  Zurich,  49  La.  Ann.  447.  but  the  fact  that  this  doubt  exists  is 

122  City  of  New  Orleans  v.  Danne-  sufficient  reason  for  the  court  to  de- 
man,   51  La.   Ann.    1093;    following  cline   to   adjudge   the  ordinance   in- 
State  v.  Zurich,  49  La.  Ann.  447.  valid."     Western   Granite   &  Marble 

"3  Tiedeman,    State    &   Fed.    Con-  Co.  v.  Knickerbocker,  103   Cal.  Ill, 

trol  of  Persons  &  Prop.     See,  also,  37   Pac.    192;    Crawford   v.   City   of 

McQuilliu,  Mun.  Ord.  §§  470  &  471,  Topeka,  51  Kan.   756,   33   Pac.   476; 

and  Parker  &  W.  Pub.  Health,   cc.  City  of  Rochester  v.  West,  164  N.  Y. 

19-21.  510;   American  Baptist  Pub.  Soc.  v. 

124  Brown    v.   Spilman,   155   U.    S.  Wistar,  11  Phila.  (Pa.)  212. 
665;    In  re  Wilshire,   103   Fed.   620,        125  Harley    v.    Heyl,    2    Cal.    477; 

and    cases    cited    in    opinion.     The  Wright  v.  Chicago  &  N.  W.  R.  Co.,  7 

court  states  that  the  ordinance  regu-  111.  App.  438;  Clark  v.  City  of  South 

lating  bill  boards  perhaps  did  border  Bend,  85  Ind.  276;  City  of  Richmond 

on  the  unreasonable,  but  emphasizes  v.    Dudley,   129    Ind.    112;    Foote   v. 

the  rule  that  courts  will  not  inter-  Fire  Dept.  of  New  York,  5  Hill   (N. 

fere  unless  the  ordinance  is  positive-  Y.)    99;    City  Council  of  Charleston 

ly    and     clearly    unreasonable:     "I  v.  Elford,  1  McMul.   (S.  C.)   234. 
entertain   a  good   deal   of   doubt  in        120  EX  parte  Cheney,  90  Cal.  617; 

respect  to  the  reasonableness  of  the  City  Council  of  Abbeville  v.  Leopard, 

maximum    limitation    placed    upon  61  S.  C.  99. 


§  126 


POLICE  POWER. 


241 


of  fire-arms,12T  getting  on  or  off  cars  in  motion  by  persons  other 
than  employes,128  requiring  flagmen  or  safety  gates  at  railroad 
crossings128  and  regulating  the  speed  of  trains,130  are  familiar 


127  city    of    Cottonwood    Falls    v. 
Smith,  36  Kan.  401. 

128  Bearden  v.  City  of  Madison,  73 
Ga.  184;  Wice  v.  Chicago  &  N.  W.  R. 
Co.,  193  111.  351.     Such  an  ordinance 
held    invalid    as    unreasonable    and 
void.     "It    is    not    meant    that    the 
right  of  passengers  to  get  on  or  off 
a  moving  train  between  stations  can- 
not be  regulated  or  denied  by  law 
or  by  rules  and  regulations  of  the 
common    carrier,    but    only    that    it 
cannot  be  done  by  an  ordinance  of 
the  character  and  in  the  terms  of 
the  one  involved  in  this  case." 

Mills  v.  Missouri,  K.  &  T.  R.  Co., 
94  Tex.  242,  59  S.  W.  874.  In  hold- 
ing the  ordinance  unreasonable  the 
court  said:  "Not  only  would  it  be 
an  attempt  to  regulate  the  exercise 
of  the  right  of  the  passenger  to  take 
passage  and  of  the  carrier  to  re- 
ceive him,  but  a  practical  denial 
of  it,  assuming  that  the  circum- 
stances existed  to  give  the  passenger 
the  right  to  get  upon  the  train  while 
moving." 

129  Atlantic,  S.  R.  &  G.  R.  Co.  v. 
State,  42  Fla.  358,  29  So.  319;  West- 
ern &  A.  R.  Co.  v.  Young,  81  Ga. 
397;  Pennsylvania  Co.  v.  Stege- 
meier,  118  Ind.  305;  Textor  v.  Balti- 
more &  O.  R.  Co.,  59  Md.  63;  People 
v.  River  Raisin  &  L.  E.  R.  Co.,  12 
Mich.  389;  City  of  Red  Wing  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  72  Minn. 
240;  Dickson  v.  Missouri  Pac.  R.  Co., 
104  Mo.  491;  Delaware,  L.  &  W.  R. 
Co.  v.  East  Orange  Tp.,  41  N.  J. 
Law,  127;  Inhabitants  of  Palmyra 
Tp.  v.  Pennsylvania  R.  Co.,  62  N.  J. 
Eq.  601,  50  Atl.  369;  Jersey  City  v. 
Central  R.  Co.,  40  N.  J.  Eq.  420. 


In  Village  of  Ravenna  v.  Pennsyl- 
vania Co.,  45  Ohio  St.  118,  it  is  held 
that  the  power  of  a  municipal  cor- 
poration to  compel  the  keeping  of  a 
watchman  at  railroad  crossings  does 
not  exist  independent  of  express 
statute. 

iso  Richmond,  F.  &  P.  R.  Co.  v. 
City  of  Richmond,  96  U.  S.  521; 
Western  &  A.  R.  Co.  v.  Young,  81  Ga. 
397;  Chicago,  B.  &  Q.  R.  Co.  v. 
Haggerty,  67  111.  113;  City  of 'Lake 
View  v.  Tate,  130  111.  247;  Whitson 
v.  City  of  Franklin,  34  Ind.  392; 
Cleveland,  C.,  C.  &  I.  R.  Co.  v.  Har- 
rington, 131  Ind.  426;  Meyers  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  57  Iowa, 
555;  State  v.  Miller,  41  La.  Ann.  53. 
The  power  to  limit  speed  of  railroad 
trains  by  ordinance  cannot  be  im- 
plied. People  v.  Little,  86  Mich.  126. 

Knobloch  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  31  Minn.  402.  "To  justify 
the  courts  in  declaring  a  city  or- 
dinance, limiting  the  rate  of  speed 
of  railroad  trains  and  engines  with- 
in the  city,  void,  as  in  restraint  of 
trade,  its  unreasonableness  or  want 
of  necessity  as  a  police  regulation 
must  be  clear,  manifest,  undoubted, 
so  as  to  be  an  abuse  of  discretion  on 
the  part  of  the  council."  Robert- 
son v.  Wabash,  St.  L.  &  P.  R.  Co., 
84  Mo.  119;  Grube  v.  Missouri  Pac. 
R.  Co.,  98  Mo.  330,  11  S.  W.  736; 
Bluedorn  v.  Missouri  Pac.  R.  Co.,  108 
Mo.  439;  Gratiot  v.  Missouri  Pac.  R. 
Co.,  116  Mo.  450;  Prewitt  v.  Mis- 
souri, K.  &  T.  R.  Co.,  134  Mo.  615; 
Jackson  v.  Kansas  City,  F.  S.  & 
M.  R.  Co.,  157  Mo.  621;  Donnaher  v. 
State,  16  Miss.  (8  Smedes  &  M.)  649; 
Buffalo  &  N.  F.  R.  Co.  v.  City  of 


Abb.  Corp.— 16. 


242  POWERS.  §  126 

illustrations  of  a  valid  exercise  of  the  police  power,  each  having 
for  their  purpose  the  prevention  of  a  nuisance  or  an  act  detri- 
mental to  the  public  health,  safety  or  welfare.  The  power  also 
exists  to  abate  as  a  nuisance  projections  on  buildings,131  to  re- 
quire bicycles  used  after  dark  to  be  provided  with  lights,  or  oth- 
erwise regulate  them,132  to  forbid  by  ordinance  their  use  upon 
sidewalks,133  to  prohibit  the  blasting  of  rock  or  keeping  of  ex- 
plosives without  written  consent  or  under  other  express  regula- 
tions,134 and  to  regulate  the  speed  of  vehicles  in  streets  and  high- 
Buffalo,  5  Hill  (N.  Y.)  209;  Boggero  Ind.  443;  Salisbury  v.  Herchenroder, 
v.  Southern  R.  Co.,  64  S.  C.  104;  106  Mass.  458,  8  Am.  Rep.  354;  Jones 
aee,  also,  7  Am.  &  Eng.  R.  Gas.  406,  v.  Housatonic  R.  Co.,  107  Mass.  261; 
and  cases  cited.  Reimer's  Appeal,  100  Pa.  182. 

The  right  to  pass  such  ordinances  132  Mercer  v.  Corbin,  117  Ind.  450; 
is  based  solely  upon  the  proper  ex-  City  of  Des  Moines  v.  Keller,  116 
ercise  of  the  police  power  and  if  the  Iowa,  648,  88  N.  W.  827;  Richardson 
conditions  are  such  in  a  particular  v.  Inhabitants  of  Danvers,  176  Mass, 
case  as  will  make  an  ordinance  un-  413.  A  bicycle  is  more  properly  a 
reasonable,  having  in  view  the  pro-  machine  than  a  carriage.  State  v. 
tection  of  life  and  limb,  it  will  be  Missouri  Pac.  R.  Co.,  71  Mo.  App.  385. 
held  invalid.  See  as  discussing  this  "A  bicycle  belongs  to  the  genus 
principle  the  following  cases:  Mey-  vehicle  or  carriage."  Massinger  v. 
ers  v.  Chicago,  R.  I.  &  P,  R.  Co.,  City  of  Millville,  63  N.  J.  Law,  123, 
57  Iowa,  555;  Burg  v.  Chicago,  43  Atl.  443;  Fuller  v.  Redding,  13 
R.  I.  &  P.  R.  Co.,  90  Iowa,  106;  App.  Div.  61,  43  N.  Y.  Supp.  96. 
White  v.  St.  Louis  &  S.  F.  R.  Co.,  44  See,  also,  Wheeler  v.  City  of  Boone, 
Mo.  App.  540;  Zumault  v.  Kansas  108  Iowa,  235,  44  L.  R.  A.  821. 
City  &  I.  Air  Line,  71  Mo.  App.  iss  Mercer  v.  Corbin,  117  Ind.  450; 
670.  Holland  v.  Bartch,  120  Ind.  46;  Town' 

The  question  has  been  raised  that  of  Whiting  v.  Doob,  152  Ind.  157; 
granting  the  validity  of  such  ordi-  Swift  v.  City  of  Topeka,  43  Kan. 
nances  when  applied  to  the  public  671;  Myers  v.  Hinds,  110  Mich.  300; 
streets  and  places  of  public  corpora-  Thompson  v.  Dodge,  58  Minn.  555; 
tions,  still  they  will  be  invalid  if  Com.  v.  Forrest,  170  Pa.  40;  State 
applied  to  the  private  property  of  v.  Collins,  16  R.  I.  371. 
the  railway  company.  See  Merz  134  Hazard  Powder  Co.  v.  Volger, 
T.  Missouri  Pac.  R.  Co.,  88  Mo.  672,  58  Fed.  152;  Kinney  v.  Koopman,  116 
Grube  v.  Missouri  Pac.  R.  Co.,  98  Ala.  310;  Williams  v.  City  Council 
Mo.  330,  and  Pennsylvania  Co.  v.  of  Augusta,  4  Ga.  509;  Laflin  &  R. 
James,  81%  Pa.  194,  holding  that  Powder  Co.  v.  Tearney,  131  111.  322; 
such  ordinances  will  apply  to  unin-  City  of  Richmond  v.  Dudley,  129 
closed  private  property  or  switch  Ind.  112;  James'  Adm'r  v.  Trustees 
yards.  of  Harrodsburg,  85  Ky.  191;  Com. 

isi  Grove  v.  City  of  Ft.  Wayne,  45  v.  Parks,  155  Mass.  531.  30  N.  R 
Ind.  429;  Clift  v.  State,  6  Ind.  App.  174;  Cameron  v.  Kenyon-Connell 
19»,  33  N.  E.  211:  Bybee  v.  State,  94 


§  126 


POLICE  POWER. 


243 


ways.138  Bnt  in  this  connection,  bicycles,  tricycles  and  automo- 
biles are  ordinarily  considered  vehicles  and  entitled  to  the  use  of 
that  part  of  the  street  or  highway  set  aside  for  them.136 

It  seems  to  be  the  rule  in  connection  with  the  enforcement  of 
such  regulations  that  the  municipal  authorities  have  no  power  to 
offer  rewards  for  the  detection  of  those  violating  them,137  though 
cases  will  be  found  to  the  contrary.138 

The  power  of  the  public  authorities  to  organize  and  maintain 
fire  departments  has  for  its  basis  the  exercise  of  the  police  power 
in  the  protection  of  property.139  Many  rules  and  regulations,  dif- 


Commercial  Co.,  22  Mont.  312;  Mc- 
Andrews  v.  Collerd,  42  N.  J.  Law, 
189;  Foote  v.  Fire  Dept.  of  New 
York,  5  Hill  (N.  Y.)  99;  Hill  v. 
Board  of  Aldermen  of  Charlotte,  72 
N.  C.  55;  Wier's  Appeal,  74  Pa.  230; 
Davenport  v.  Richmond  City,  81  Va. 
636;  Wilson  v.  Phoenix  Power  Mfg. 
Co.,  40  W.  Va.  413.  See,  also,  5  Am. 
St.  Rep.  538 

135  Nealis  v.  Hayward,  48  Ind.  19. 
In  Kansas  City  v.  McDonald,  60  Kan. 
481,  it  is  held  that  such  an  ordi- 
nance does  not  apply  to  fire  depart- 
ments when  driving  to  a  fire.  Com. 
v.  Worcester,  20  Mass.  (3  Pick.) 
462;  Com.  v.  Roy,  140  Mass.  432; 
People  v.  Little,  86  Mich.  125,  48 
N.  W.  693,  holding  such  an  ordinance 
applies  to  an  ambulance  equally  with 
other  vehicles;  City  Council  v. 
Dunn,  1  McCord  (S.  C.)  333. 

ise  City  of  Emporia  v.  Wagoner, 
6  Kan.  App.  659;  Swift  v.  City  of 
Topeka,  43  Kan.  671;  Taylor  v. 
Union  Traction  Co.,  184  Pa.  465. 
But  see  State  v.  Yopp,  97  N.  C.  477, 
where  the  use  of  particular  high- 
ways is  held  to  be  a  matter  of  dis- 
cretion. 

137  Crofut  v.  City  of  Danbury,  65 
Conn.  294;  Murphy  v.  City  of  Jack- 
sonville, 18  Fla.  318;  Hawk  v. 
Marion  County,  48  Iowa,  472;  Hang- 
er v.  City  of  Des  Moines,  52  Iowa, 


193;  Lee  v.  Trustees  of  Flemings- 
burg,  37  Ky.  (7  Dana)  28;  Patton  v. 
Stephens,  77  Ky.  (14  Bush.)  324; 
Gale  v.  Inhabitants  of  South  Ber- 
wick, 51  Me.  174;  Loveland  v.  City 
of  Detroit,  41  Mich.  367. 

iss  Crawshaw  v.  City  of  Roxbury, 
73  Mass.  (7  Gray)  374;  Borough  of 
York  v.  Forscht,  23  Pa.  391.  See, 
also,  Shuey  v.  United  States,  92  U. 
S.  73. 

139  People  v.  Newman,  96  Cal.  605 ; 
State  v.  Denny,  118  Ind.  382;  State 
v.  Fox,  158  Ind.  126;  City  of  Lexing- 
ton v.  Thompson,  113  Ky.  540,  68  S. 
W.  477;  Redell  v.  Moores,  63  Neb. 
219.  In  State  v.  Moores,  55  Neb. 
480,  76  N.  W.  175,  the  right  to  main- 
tain fire  departments  was  held  as 
vesting  in  the  people  of  municipali- 
ties to  be  exercised  by  them  with- 
out legislative  interference.  The 
court  said:  "The  right  of  local  self 
government  in  cities  and  towns 
*  *  *  existed  in  this  state  at  the 
time  the  present  constitution  was 
framed,  and  was  not  surrendered 
upon  the  adoption  of  that  instru- 
ment but  is  vested  in  the  people  of 
the  respective  municipalities,  and 
the  legislature  is  powerless  to  take 
it  away." 

Green  v.  City  of  Cape  May,  41  N. 
J.  Law,  45.  The  authority  conferred 
by  a  city  charter  to  pass  ordinances 


244 


POWERS. 


§  127 


fering  in  their  character  in  different  sections,  have  for  their  pur- 
pose the  establishment  of  fire  limits  and  prohibit  within  such 
limits  the  construction  of  buildings  except  of  certain  materials.140 

§  127.    The  protection  of  public  morals. 

The  good  morals  of  the  community  should  be  an  especial  care 
of  the  public  authorities,  and  all  regulations  or  laws  passed  by 
the  proper  authorities,  looking  to  this  end  come  within  a  valid  ex- 
ercise of  the  police  power.141  The  usual  limitations  as  to  the  exer- 
cise of  the  power  apply.  It  might  be  said  in  connection  witii 
rules  looking  to  the  preservation  of  public  morals  that  it  is  espe- 


for  the  suppression  of  fires  includes 
the  power  to  purchase  engines  and 
apparatus  for  use  by  a  fire  depart- 
ment. Leonard  v.  Long  Island  City, 
65  Hun  (N.  Y.)  621. 

1*0  City  Council  of  Montgomery  v. 
Louisville  &  N.  R.  Co.,  84  Ala.  127, 
4  So.  626;  Canepa  v.  City  of  Birm- 
ingham, 92  Ala.  358,  9  So.  180;  Mc- 
Kibbin  v.  Town  of  Ft.  Smith,  35 
Ark.  352;  McCloskey  v.  Kreling,  76 
Cal.  511,  18  Pac.  433;  Hine  v.  City 
of  New  Haven,  40  Conn.  478;  Ford 
v.  Thralkill,  84  Ga.  169;  King  v. 
Davenport,  98  111.  305;  Village  of 
Louisville  v.  Webster,  108  111.  414; 
City  of  Marion  v.  Robertson,  84  111. 
App.  113;  Kaufman  v.  Stein,  138 
Ind.  49,  37  N.  B.  333;  Eichenlaub  v. 
City  of  St.  Joseph,  113  Mo.  395; 
Lemmon  v.  Town  of  Guthrie  Center, 
113  Iowa,  36,  84  N.  W.  986;  State  v. 
O'Neil,  49  La.  Ann.  1171;  Brady  v. 
Northwestern  Ins.  Co.,  11  Mich.  425; 
Alexander  v.  Town  Council  of 
Greenville,  54  Miss.  659;  State  v. 
City  of  Kearney,  25  Neb.  262;  Fire 
Dept.  of  New  York  v.  Gilmour,  149 
N.  Y.  453,  52  Am.  St.  Rep.  748; 
Brunner  v.  Downs,  63  Hun,  626,  17 
N.  Y.  Supp.  633;  Gunning  System  v. 
City  of  Buffalo,  62  App.  Div.  497,  71 
N.  Y.  Supp.  155;  Griffin  v.  City  of 


Gloversville,  67  App.  Div.  403,  73  N. 
Y.  Supp.  684,  and  cases  cited;  State 
v.  Johnson,  114  N.  C.  846,  19  S. 
E.  599;  Hubbard  v.  Town  of  Med- 
ford,  20  Or.  315,  25  Pac.  640;  Kneed- 
ler  v.  Borough  of  Norristown,  100 
Pa.  368;  Respublica  v.  Duquet,  2 
Yeates  (Pa.)  493;  Douglass  v.  Com., 
2  Rawle  (Pa.)  262;  Pye  v.  Peterson, 
45  Tex.  312.  A  municipal  corpora- 
tion does  not  have  the  power  to 
establish  fire  limits  without  an  ex- 
press grant  in  charter.  City  of  Eu- 
reka v.  Wilson,  15  Utah,  67,  48  Pac. 
150;  Carroll  v.  City  of  Lynchburg, 
84  Va.  803;  City  of  Olympia  v.  Mann, 
1  Wash.  St.  389;  Baxter  v.  City  of 
Seattle,  3  Wash.  St.  352;  City  of 
Charleston  v.  Reed,  27  W.  Va.  681. 
See,  also,  authorities  cited,  Parker 
&  W.  Pub.  Health,  cc.  19  &  20. 

1*1  Ex  parte  Newman,  9  Cal.  510; 
City  of  Mt.  Sterling  v.  Holly,  22  Ky. 
L.  R.  358,  57  S.  W.  491;  State  v. 
Hart,  34  Me.  36;  State  v.  Cainan,  94 
N.  C.  880;  State  v.  Earnhardt,  107 
N.  C.  789;  Smith  v.  Elliott,  9  Pa. 
345;  In  re  Snell,  58  Vt.  207,  and  48 
Am.  Rep.  274-278.  In  Maine  and 
Rhode  Island  there  are  statutory 
provisions  declaring  those  things 
which  are  immoral  to  be  nuisances 
per  se. 


§   127  POLICE  POWER.  245 

cially  difficult  in  all  cases  to  determine  or  to  distinguish  between 
a  proper  and  an  improper  exercise  of  the  power.  Whether  a 
certain  act  or  series  of  acts  is  detrimental  to  the  public  morals 
may  be  a  matter  of  opinion,  and  the  mere  fact  that  the  law  in 
a  particular  instance  characterizes  them  as  such  and  therefore 
invalid  does  not  necessarily  give  to  them  that  character.  It  is 
under  this  particular  branch  of  the  exercise  of  the  police  power 
that  what  may  be  termed  sumptuary  laws  have  been  repeatedly 
passed  by  public  corporations.  The  baneful  effects  of  acts  pro- 
hibited by  these  laws  are  not  always  clearly  perceived.  An  in- 
dividual is  entitled  to  certain  personal  opinions  that  as  a  matter 
of  right  he  is  to  determine  for  himself.  Clearly  therefore  police 
regulations  directed  to  the  prevention  or  suppression  of  certain 
acts  or  opinions  must  in  order  to  be  valid  have  clearly  estab- 
lished the  facts  showing  or  tending  to  show  their  unlawful  or 
detrimental  character.142  It  is  true  that  the  exercise  of  the  police 
power  when  once  vested  in  a  public  corporation  or  body  is  a  dis- 
cretionary power  within  certain  limits,  to  be  exercised  or  not 
and  in  the  manner  determined  by  the  discretion  of  those  to  whom 
it  is  entrusted ;  but  it  is  none  the  less  true  that  this  discretionary 
power  is  subject  to  constitutional  limitations.  Personal  rights 
guaranteed  by  the  constitution  cannot  arbitrarily  be  taken  away 
from  an  individual  through  the  mere  discretionary  determina- 
tion of  certain  officials  that  the  exereise  of  those  rights  is  detri- 
mental to  public  morals.148 

i*2Buell  v.  State,  45  Ark.  336;  iton  v.  Barber,  54  Iowa,  360;  State  v. 

Paralee  v.  Town  of  Camden,  49  Ark.  Wister,  62  Mo.  592;  Ely  v.  Niagara 

165;  McAlister  v.  Clark,  33  Conn.  County  Sup'rs,  36  N.  Y.  297;  People 

91;  City  of  Chariton  v.  Barber,  54  v.  Erwin,  4  Denio  (N.  Y.)  129;  City 

Iowa,  360;  City  of  Grand  Rapids  v.  of  Chariton  v.  Barber,  54  Iowa,  360, 

Bateman,  93  Mich.  135;  State  v.  37  Am.  Rep.  209,  also  5  Am.  St.  Rep. 

Webber,  107  N.  C.  962 ;  Milliken  v.  494.  In  Nuendorff  v.  Duryea,  52  How. 

City  Council  of  Weatherford,  54  Tex.  Pr.  (N.  Y.)  267,  it  was  held  compe- 

388;  State  v.  Webber,  107  N.  C.  962,  tent  for  the  legislature  to  determine 

22  Am.  St.  Rep.  920  and  51  Am.  and  declare  what  regulations  and  di- 

Rep.  467,  475 ;  Tiedeman,  State  &  versions  were  harmless  and  innocent 

Fed.  Control  of  Persons  &  Prop.  c.  7.  and  what  amusements  operate  in- 

143  Poyer  v.  Village  of  Des  Plaines,  juriously  on  others  or  exert  a  bane- 

18  111.  App.  225.  An  ordinance  de-  ful  influence  upon  the  community, 

claring  "all  public  picnics  and  open-  thus  coming  within  a  valid  exercise 

air  dances  within  its  limits"  to  be  of  the  police  power.  It  was  also 

nuisances,  held  void.  City  of  Char-  held  in  this  case  that  if  the  legis- 


246 


POWERS. 


128 


§  128.    Regulations  controlling  or  suppressing  gambling. 

Regulations  or  ordinances  of  public  authorities  having  for 
their  purpose  the  suppression  or  control  of  gambling  come  within 
a  legitimate  exercise  of  the  police  power,  as  having  for  their  ulti- 
mate end  the  preservation  of  the  good  morals  and  peace  of  the 
community  and  the  suppression  of  vice  and  crime,144  gambling 
being  usually  considered,  independent  of  statutory  provisions, 
such  an  immoral,  baneful  and  vicious  act  and  propensity  as  to 
justify  its  regulation  or  even  suppression.  This  control  may  go 
to  the  extent  either  of  totally  suppressing  and  prohibiting  the 
act146  or  it  may  seek  to  accomplish  its  purpose  by  regulating  and 


lature  came  to  the  conclusion  that 
certain  pastimes  or  amusements 
were  hurtful  or  injurious  to  others 
or  disturbed  the  peace  of  the  public, 
the  courts  would  not  ordinarily, 
even  assuming  they  had  the  power, 
pass  in  review  the  judgment  and 
discretion  exercised  by  the  law-mak- 
ing power. 

i**  McLaughlin  v.  Stephens,  2 
Cranch,  C.  C.  148;  Fed.  Gas.  No. 
8,874;  United  States  v.  Holly,  3 
Cranch,  C.  C.  656,  Fed.  Cas.  No. 
15,381;  Carrier  v.  Brannan,  3  Cal. 
328;  Ex  parte  Chin  Yan,  60  Cal.  78; 
Ex  parte  Tuttle,  91  Cal.  589;  State 
v.  Carpenter,  60  Conn.  97;  State  v. 
Flint,  63  Conn.  248;  Bagwell  v. 
Town  of  Lawrenceville,  94  Ga.  654, — 
"Blind  Tiger;"  Odell  v.  City  of  At- 
lanta, 97  Ga.  670, — betting  on  horse 
races;  Bobel  v.  People,  173  111.  19. 

Frost  v.  People,  193  111.  635.  The 
destruction  of  gambling  apparatus 
held  constitutional  and  not  depriving 
persons  of  their  property  without 
due  process  of  law.  But  see  Lowry 
v.  Rainwater,  70  Mo.  152,  21  Alb. 
Law  J.  72;  Smith  v.  City  of  Madi- 
son, 7  Ind.  86;  Board  of  Police 
Com'rs  v.  Wagner,  93  Md.  182,  48 
Atl.  455;  Fisher  v.  McGirr,  67  Mass. 
(1  Gray)  1;  Hibbard  v.  People,  4 


Mich.  126;  Jackson  v.  People,  9 
Mich.  Ill;  State  v.  Woodman,  26 
Mont.  348,  67  Pac.  1118;  Jefferson 
City  v.  Courtmire,  9  Mo.  693. 

Lowry  v.  Rainwater,  70  Mo.  152, 
21  Alb.  Law  J.  72.  A  statute  in 
Missouri  authorized  the  police  of  St. 
Louis  to  seize  gambling  parapher- 
nalia and  destroy  it  at  once.  This 
was  declared  unconstitutional  as  de- 
priving one  of  property  without 
due  process  of  law.  State  v.  Met- 
calf,  65  Mo.  App.  681;  Town  of  Can- 
ton v.  Dawson,  71  Mo.  App.  2S«i; 
State  v.  Hall,  32  N.  J.  Law,  158; 
Tanner  v.  Trustees  of  Albion,  5  Hill 
(N.  Y.)  121;  Updike  v.  Campbell,  4 
E.  D.  Smith  (N.  Y.)  570;  People  v. 
Sargeant,  8  Cow.  (N.  Y.)  139;  Ah 
Hoy  v.  Spencer,  23  Or.  89. 

Daly  v.  State,  81  Tenn.  (13  Lea) 
228.  Tennessee  Acts  1883,  c.  138, 
regulating  the  selling  of  pools,  etc., 
held  unconstitutional.  Lincoln  v. 
Smith,  27  Vt.  354;  State  v.  Newman, 
96  Wis.  258,  71  N.  W.  438.  See,  also. 
Lowry  v.  Rainwater,  70  Mo.  152; 
35  Am.  St.  Rep.  420;  33  Am.  Dec. 
134  et  seq. 

i«portis  v.  State,  27  Ark.  362; 
Odell  v.  City  of  Atlanta,  97  Ga.  670; 
City  of  Mt.  Pleasant  v.  Breeze,  11 
Iowa,  399;  City  of  Owensboro  v. 


§  129 


POLICE  POWER. 


247 


controlling  the  manner,146  time1*7  and  place148  in  which  it  shall 
be  carried  on.  Ordinances  adopted  by  municipal  corporations 
which  in  effect  license  gambling  are  null  and  void  if  in  contra- 
vention of  statutory  provisions.149 

§  129.    The  police  power;  further  illustrations  of  its  exercise. 

Some  further  concrete  illustrations  of  a  valid  exercise  of  the 
police  power  may  perhaps  best  define  and  explain  its  scope.  The 
suppression  of  disorderly  houses;150  making  it  unlawful  for  any 


Sparks,  99  Ky.  351,  36  S.  W.  4.  The 
right  of  municipal  corporations  to 
pass  ordinances  prohibiting  and  sup- 
pressing gambling  houses  not  con- 
sidered authority  to  prohibit  all 
gambling.  State  v.  Shaw,  39  Minn. 
153;  State  v.  Grimes,  49  Minn.  443, 
52  N.  W.  42;  Tanner  v.  Trustees  of 
Albion,  5  Hill  (N.  Y.)  121;  followed 
in  Updike  v.  Campbell,  4  E.  D.  Smith 
(N.  Y.)  570. 

1*6  Mclnerney  v.  City  of  Denver, 
17  Colo.  302,  29  Pac.  516;  Rice  v. 
State,  3  Kan.  141;  City  of  De  Soto 
v.  Brown,  44  Mo.  App.  148;  City  of 
Plattsburg  v.  Trimble,  46  Mo.  App. 
459, — regulating  the  use  of  billiard 
tables  by  minors. 

1*7  Shafer  v.  Mumma,  17  Md.  331; 
City  of  St.  Louis  v.  Bentz,  11  Mo. 
61;  State  v.  Cowan,  29  Mo.  330;  City 
of  Tarkio  v.  Cook,  120  Mo.  1,  25  *S. 
W.  202;  Byers  v.  Com.,  42  Pa.  89. 

1*8  Ex  parte  Tuttle,  91  Gal.  589; 
City  of  Chicago  v.  Brownell,  41  111. 
App.  70;  State  v.  O'Leary,  155  Ind. 
526,  58  N.  E.  703,  and  cases  cited  in 
the  opinion;  City  of  Greenville  v. 
Kemmis,  58  S.  C.  427. 

1*9  State  v.  Lindsay,  34  Ark.  372; 
In  re  Ah  You,  88  Cal.  99;  Ex  parte 
Solomon,  91  Cal.  440;  Ex  parte  Tut- 
tle, 91  Cal.  589;  City  of  Chicago  v. 
Brownell,  41  111.  App.  70. 

150  Buell  v.  State,  45  Ark.  336. 
Under  the  power  given  by  the  Code, 


"to  repress  and  restrain  disorderly 
houses,"  a  city  has  authority  by  or- 
dinance to  make  it  an  offense  to 
visit  such  houses. 

Paralee  v.  Camden,  49  Ark.  165,  4 
S.  W.  654.  The  mere  presence  with- 
in the  town  limits  of  one  who  had 
previously  lived  there  as  a  prosti- 
tute cannot  be  made  a  crime.  City 
of  Chariton  v.  Barber,  54  Iowa,  360; 
State  v.  Botkin,  71  Iowa,  87;  Munic- 
ipality No.  1  v.  Wilson,  5  La.  Ann. 
747;  City  of  Shreveport  v.  Roos,  35 
La.  Ann.  1010;  People  v.  Hanrahan, 
75  Mich.  611;  State  v.  Clarke,  54  Mo. 
17:  "It  is  a  naked  assumption  to 
say  that  any  matter  allowed  by  the 
legislature  is  against  public  policy. 
The  best  indication  of  public  policy 
is  to  be  found  in  the  enactments  of 
our  legislature.  To  say  that  such  a 
law  is  of  immoral  tendency  is  dis- 
respectful to  the  legislature,  who, 
no  doubt,  designed  to  promote  mor- 
ality and  it  is  altogether  unwarrant- 
ed to  suppose  that  the  object  of  the 
law  or  the  ordinance  is  for  any  pur- 
pose but  to  promote  the  morals  and 
health  of  the  citizens.  Whether  the 
ordinance  in  question  is  calculated 
to  promote  the  object  is  a  question 
with  which  the  courts  have  no  con- 
cern." Perry  v.  State,  37  Neb.  623; 
People  v.  Miller,  38  Hun  (N.  Y.)  82; 
State  v.  Webber,  107  N.  C.  962;  State 
v.  Williams,  11  S.  C.  288;  Childress 


248 


POWERS. 


§   129 


person  to  have  lottery  tickets  in  his  possession,  or  prohibiting 
their  sale;151  the  passage  and  enforcement  of  laws  requiring  the 
proper  observance  of  Sundays;152  or  regulating  the  conduct  of 
those  appearing  on  the  streets.153  An  ordinance  making  it  an  of- 
fense to  associate  'or  converse  with  thieves,  burglars,  gamblers, 
prostitutes,  pickpockets,  etc.,  has  been  held  unconstitutional  being 
an  invasion  of  the  rights  of  personal  liberty,154  nor  can  the  mere 


v.  City  of  Nashville,  35  Term.  (3 
Sneed)  347;  Ex  parte  Wilson,  14 
Tex.  App.  592.  Contra,  Ogden  City 
v.  McLaughlin,  5  Utah,  387;  Ogden 
v.  City  of  Madison,  111  Wis.  413. 

"I  Nicholls  v.  Georgetown  Corp.,  4 
Cranch,  C.  C.  576,  Fed.  Cas.  No. 
10,228;  Ex  parte  Solomon,  91  Gal. 
440:  "Possession  of  lottery  tickets" 
ordinance  unreasonable  and  void  and 
in  conflict  with  general  laws  of  the 
state.  Ex  parte  McKenna,  126  Cal. 
429;  Ex  parte  McClain,  134  Cal.  110; 
Bueno  v.  State,  40  Fla.  160;  Daven- 
port v.  City  of  Ottawa,  54  Kan.  711; 
State  v.  Dobard,  45  La.  Ann.  1412; 
City  of  New  Orleans  v.  Collins,  52 
La.  Ann.  973;  People  v.  Dycker,  72 
''App.  Div.  308,  76  N.  Y.  Supp.  111. 

Ex  parte  Kameta,  36  Or.  251.  A 
city  ordinance  making  it  unlawful 
for  any  person  to  have  in  his  pos- 
session any  lottery  ticket,  unless  it 
be  shown  that  such  possession  is  in- 
nocent, or  for  a  lawful  purpose,  is 
void,  since  it  puts  on  defendant  the 
burden  of  proving  his  innocence. 

152  Theisen  v.  McDavid,  34  Fla. 
440;  Rothschild  v.  City  of  Darien, 
69  Ga.  503;  McPherson  v.  Village  of 
Chebanse,  114  111.  46;  affirming  15 
111.  App.  311;  City  of  St.  Louis  v. 
Cafferata,  24  Mo.  94;  City  of  Nash- 
ville v.  Linck,  80  Tenn.  (12  Lea) 
499;  McDowell  v.  Murfreesboro,  103 
Tenn.  726;  Ex  parte  Abram,  34  Tex. 
Cr.  R.  10.  But  see  City  of  Canton  v. 
Nist.  9  Ohio  St.  439. 


las  Braddy  v.  City  of  Milledgeville, 
74  Ga.  516;  Hechinger  v.  City  of 
Maysville,  22  Ky.  L.  R.  486,  57  S. 
W.  619;  City  of  Grand  Rapids  v. 
Bateman,  93  Mich.  135;  Village  of 
Vicksburg  v.  Briggs,  102  Mich.  551; 
In  re  Bushey,  105  Mich.  64;  State  v. 
Bruckhauser,  26  Minn.  301. 

State  v.  Hammond,  40  Minn.  43. 
Ordinance  invalid  because  in  excess 
of  charter  powers. 

Roderick  v.  Whitson,  51  Hun  (N. 
Y.)  620.  Salvation  army.  An  or- 
dinance prohibiting  any  person  to 
go  about  or  remain  in  any  of  the 
streets  or  on  the  sidewalks  of  village 
beating  any  drum  or  tambourine  or 
making  any  noise  with  any  instru- 
ment for  any  purpose  whatever,  held 
valid,  but  see  State  v.  Dering,  84 
Wis.  585. 

State  v.  Cainan,  94  N.  C.  880; 
State  v.  Hunter,  106  N.  C.  796; 
Walsh  v.  City  of  Union,  13  Or.  589. 
A  provision  in  a  city  charter  em- 
powering the  city  to  punish  any  per- 
son or  persons  who  should  make 
any  noise  or  disturbance  in  any 
street  of  the  city  does  not  authorize 
the  city  to  take  jurisdiction  of  and 
punish  the  crime  of  assault  with  a 
dangerous  weapon. 

is*  City  of  St.  Louis  v.  Fitz,  53 
Mo.  582;  City  of  St.  Louis  v.  Roche. 
128  Mo.  541;  Ex  parte  Smith,  135 
Mo.  223;  Cady  v.  Barnesville,  4  Ohio 
Dec.  396. 


§  129 


POLICE  POWER. 


249 


presence  of  such  persons  within  corporate  limits  be  punished  by 
statute  or  ordinance.155  The  closing  of  business  places  on  Sun- 
day,188 the  punishment  of  individuals  following  certain  occupa- 
tions,167 have  each  been  held  a  valid  exercise  of  the  police  power, 


IBB  Buell  v.  State,  45  Ark.  336; 
Paralee  v.  Camden,  49  Ark.  165. 

iBecity  of  Denver  v.  Bach,  26 
Colo.  530.  Sunday  ordinance  held 
void.  McPherson  v.  Village  of  Che- 
banse,  114  111.  46;  Kansas  City  v. 
Grubel,  57  Kan.  436. 

City  of  Shreveport  v.  Levy,  26  La. 
Ann.  671.  "Before  the  constitution, 
Jews  and  Gentiles  are  equal;  by  the 
law  they  must  be  treated  alike, 
hence  a  municipal  corporation  can- 
not by  an  ordinance  give  to  one  sect 
a  privilege  which  it  denies  to  an- 
other, as  by  providing  that  persons 
who  close  up  their  places  of  busi- 
ness on  Saturday  may  open  their 
places  on  Sunday." 

People  v.  Bellet,  99  Mich.  151. 
Act  No.  148,  Laws  Mich.  1893,  un- 
lawful for  barbers  to  follow  their 
trade  on  Sunday.  State  v.  Petit,  74 
Minn.  376;  State  v.  Zeno,  79  Minn. 
80.  Gen.  St.  Minn.  1894,  §  6513  — 
barbers  prohibited  from  keeping 
their  shops  open  on  Sunday.  City 
of  St.  Louis  v.  Cafferata,  24  Mo.  94; 
People  v.  Havnor,  149  N.  Y.  195; 
Ex  parte  Northrup,  41  Or.  489,  69 
Pac.  445.  Sess.  Laws  Or.  1901,  p. 
17,  prohibiting  a  barber  from  follow- 
ing his  occupation  on  Sunday,  held 
not  class  legislation.  City  Council 
of  Charleston  v.  Benjamin,  2  Strob. 
(S.  C.)  508;  Craddock  v.  State,  18 
Tex.  App.  567;  Flood  v.  State,  19 
Tex.  App.  584;  Ex  parte  Sundstrom, 
25  Tex.  App.  133;  Gabel  v.  City  of 
Houston,  29  Tex.  336;  State  v. 
Nichols,  28  Wash.  628,  69  Pac.  372. 
Such  ordinances  must  not  be  incon- 
sistent with  the  constitution  and 
laws  of  the  state.  City  of  Canton  v. 


Nist,  9  Ohio  St.  439;  Baxter's  Peti- 
tion, 12  R.  I.  13;  Flood  v.  State,  19 
Tex.  App.  584;  Bohmy  v.  State,  21 
Tex.  App.  597. 

isT  Rogers  v.  People,  9  Colo.  450; 
McAlister  v.  Clark,  33  Conn.  91; 
Braddy  v.  City  of  Milledgeville,  74 
Ga.  516;  Robb  v.  City  of  Indian- 
apolis, 38  Ind.  49;  City  of  Chariton 
v.  Barber,  54  Iowa,  360;  State  v. 
Botkin,  71  Iowa,  87. 

State  v.  Babcock,  112  Iowa,  250. 
The  court  in  this  case  held  the  ordi- 
nance invalid,  there  being  a  possi- 
bility that  the  penalty  imposed  for 
its  violation  might  be  larger  than 
that  authorized  by  statute. 

Dunn  v.  Com.,  105  Ky.  834;  City 
of  New  Orleans  v.  Costello,  14  La. 
Ann.  37;  City  of  Shreveport  v.  Roos, 
35  La.  Ann.  1010;  L'Hote  v.  City  of 
New  Orleans,  51  La.  Ann.  93;  People 
v.  Hanrahan,  75  Mich.  611;  State  v. 
Oleson,  26  Minn.  507.  Ordinance 
does  not  supersede  the  provisions  of 
the  general  statutes  on  the  same 
subject. 

City  of  St.  Louis  v.  Mellville,  3 
Mo.  App.  597;  State  v.  Clarke,  54 
Mo.  17;  Givens  v.  Van  Studdiford, 
86  Mo.  149. 

Ex  parte  Roberts,  166  Mo.  207.  A 
law  prohibiting  a  person  from  mak- 
ing or  mending  burglars'  tools  held 
not  in  contravention  of  the  Bill  of 
Rights,  §  30. 

Perry  v.  State,  37  Neb.  623; 
People  v.  Miller,  38  Hun  (N. 
Y.)  82;  State  v.  Webber,  107  N.  C. 
962.  Ordinance  in  this  case  held  in- 
valid: Wong  v.  City  of  Astoria,  13 
Or.  538;  City  of  San  Antonio  v. 
Schneider  (Tex.  Civ.  App.)  37  S.  W. 


250  POWERS. 

having  for  their  purpose  the  care  and  protection  of  the  public 
morals.  An  ordinance  making  it  unlawful  for  any  woman  to  go 
in  and  out  of  a  building  where  a  saloon  was  kept  for  the  sale 
of  liquor,  or  to  frequent,  loaf,  or  stand  around  such  building 
within  fifty  feet  thereof,  was  held  void  in  Kentucky  as  being  an 
unreasonable  interference  with  individual  liberty.158  In  some 
cases  it  is  held  that  municipal  authorities  have  no  power  to  pass 
ordinances  protecting  the  public  morals  except  when  clearly 
granted  by  the  legislature,109  and  it  is  self-evident  that  municipal 
corporations  have  no  power  to  pass  ordinances  which  shall  regu- 
late or  attempt  to  regulate  the  conduct  of  those  outside  munici- 
pal limits.160  It  is  also  true  that  the  power  to  regulate  or  con- 
trol does  not  include  the  right  to  suppress.161 

§  130.    The  exercise  of  the  police  power  in  regulating  the  sale 
and  consumption  of  intoxicating  liquors. 

It  is  clearly  within  the  legitimate  province  of  the  state,  in  the 
exercise  of  its  police  power,  to  prohibit  or  control  those  indi- 
vidual acts  that  constitute  a  vice  either  on  account  of  their  char- 
acter, the  extent  or  the  manner  of  their  exercise.  The  use  of  in- 
toxicating liquors  if  carried  to  an  excess  becomes  a  vice,  and  .all 
authorities  are  agreed  that  as  such,  or  considered  independently, 
it  leads  to  poverty,  disease  and  crime.  The  state  as  a  part  of  its 
governmental  duties  must  protect  and  support  the  indigent  and 
unfortunate,  eradicate  and  control  disease  and  punish  crime.  It 

767,— particular  charter  power  con-  C.    C.    232,    Fed.    Gas.    No.    17,163; 

strued;    Ogden  City  v.  McLaughlin,  Lenox  v.  Georgetown,  1  Cranch,  C. 

5  Utah,  387.  C.  608,  Fed.  Cas.  No.  8,245;   City  of 

iss  Gastineau   v.   Com.,   22   Ky.   L.  South     Pasadena    v.     Los    Angeles 

R.  157,  56  S.  W.  705.  Terminal  R.  Co.,   109  Cal.   315;    Be- 

isflGoetler   v.   State,  45  Ark.   454.  gein  v.  City  of  Anderson,  28  Ind.  79; 

Municipal  corporations   have   power  Robb  v.  City  of  Indianapolis,  38  Ind. 

under  the  statute  to  suppress  gam-  49;   State  v.  Franklin,  40  Kan.  410; 

bling    devices    but   none    to    license  City  of  New  Orleans  v.  Anderson,  9 

them  or  impose  a  license  fee  upon  a  La.  Ann.  323;   Jarvis  v.  Pinckney,  3 

ten-pin  alley.     City  of  Owensboro  v.  Hill  (S.  C.)  123;   Gass  v.  Greenville 

Sparks,  99  Ky.  351;  State  v.  Home,  Corp.,  36  Tenn.  (4  Sneed)   62.     See, 

115  N.  C.  739.    An  ordinance  forbid-  also,  cases  cited  in  §  120,  note  63. 

ding  the  use  of  profane  language  in  isi  State    v.    Owen,    50    La.    Ann. 

town  was  held  invalid,  the  power  to  1181;    State  v.   Pamperin,  42   Minn, 

pass  not  granted  by  the  legislature.  320. 

i«o  Ward  v.  Washington,  4  Cranch. 


§  130 


POLICE  POWER. 


251 


may  do  this  either  by  dealing  with  the  tangible  results  of  certain 
causes,  or  it  may,  through  the  control  and  regulation  of  their 
cause,  accomplish  the  same  thing  more  effectually  and  with  less 
expense.  Clearly,  therefore,  the  state  may  prohibit  absolutely182 


162  Bartemeyer  v.  State  of  Iowa, 
85  U.  S.  (18  Wall.)  129,  133.  "The 
weight  of  authority  is  overwhelming 
that  no  such  immunity  has  hereto- 
fore existed  as  would  prevent  state 
legislatures  from  regulating  and 
even  prohibiting  the  traffic  in  in- 
toxicating drinks,  with  a  solitary 
exception.  That  exception  is  the 
case  of  a  law  operating  so  rigidly 
on  property  in  existence  at  the  time 
of  its  passage,  absolutely  prohibiting 
its  sale,  as  to  amount  to  depriving 
the  owner  of  his  property." 

Mugler  v.  State  of  Kansas,  123  U. 
S.  623.  "A  prohibition  simply  upon 
the  use  of  property  for  purposes 
that  are  declared  by  valid  legisla- 
tion to  be  injurious  to  the  health, 
morals  or  safety  of  the  community 
cannot  in  any  just  sense  be  deemed 
a  taking  or  an  appropriation  of 
property  for  the  public  benefit. 
Such  legislation  does  not  disturb 
the  owner  in  the  control  or  use  of 
his  property  for  lawful  purposes  nor 
restrict  his  right  to  dispose  of  it 
but  is  only  a  declaration  by  the  state 
that  its  use  by  anyone  for  certain 
forbidden  purposes  is  prejudicial  to 
the  public  interests." 

Tanner  v.  Village  of  Alliance,  29 
Fed.  196;  Sheppard  v.  Bowling,  127 
Ala.  1.  Individuals  not  deprived  of 
their  rights  in  the  "pursuit  of  hap- 
piness" by  the  passage  of  a  dispen- 
sary law.  State  v.  Davis,  130  Ala. 
148;  Ex  parte  Smith,  38  Cal.  702. 
Ordinance  prohibiting  noisy  amuse- 
ments and  to  prevent  immorality 
valid. 

Ex  parte  Campbell,  74  Cal.  20; 
State  v.  Wheeler,  25  Conn.  290; 


Perdue  v.  Ellis,  18  Ga.  586;  Turner 
v.  City  of  Forsyth,  78  Ga.  683;  Hill 
v.  City  of  Dalton,  72  Ga.  314;  Bag- 
well v.  Town  of  Lawrenceville,  94 
Ga.  654;  Jones  v.  People,  14  111.  196; 
Neifing  v.  Town  of  Pontiac,  56  111. 
172;  Harbaugh  v.  City  of  Monmouth, 
74  111.  367;  Gunnarssohn  v.  City  of 
Sterling,  92  111.  569;  Town  of  Toledo 
v.  Edens,  59  Iowa,  352;  State  v. 
Mugler,  29  Kan.  252;  Koester  v. 
State,  36  Kan.  27;  City  of  Wilson  v. 
Herink,  64  Kan.  607,  68  Pac.  72; 
Preston  v.  Drew,  33  Me.  559;  State 
v.  Gurney,  37  Me.  156;  Warren  v. 
City  of  Charleston,  68  Mass.  (2 
Gray)  98;  State  v.  Johnson,  86  Minn. 
121,  90  N.  W.  161;  State  v.  Searcy, 
20  Mo.  489;  State  v.  Noyes,  30  N.  H. 
279;  Metropolitan  Board  of  Excise 
v.  Barrie,  34  N.  Y.  657. 

Bertholf  v.  O'Reilly,  74  N.  Y.  509. 
In  the  opinion  by  Judge  Andrews 
the  court  say:  "The  right  of  the 
state  to  regulate  the  traffic  in  in- 
toxicating liquors,  within  its  limits, 
has  been  exercised  from  the  founda- 
tion of  the  government,  and  is  not 
open  to  question.  The  state  may 
prescribe  the  persons  by  whom  and 
the  conditions  under  which  the  traf- 
fic may  be  carried  on.  It  may  im- 
pose upon  those  who  act  under  its 
license  such  liabilities  and  penalties 
as  in  its  judgment  are  proper  to 
secure  society  against  the  dangers 
of  the  traffic  and  individuals  against 
injuries  committed  by  intoxicated 
persons  under  the  influence  of  or  re- 
sulting from  their  intoxication." 
"The  right  to  life,  liberty  and  prop- 
erty is  not  absolute  or  uncontrolla- 


252 


POWERS. 


130 


or  it  may  license  or  limit163  the  sale  of  intoxicating  liquors;  or 
it  may  prohibit  their  sale  on  certain  occasions,164  within  certain 


ble.  The  qualification  in  the  bill  of 
rights  implies  that  there  may  be  a 
deprivation  of  those  rights  by  due 
process  of  law,  and  governments 
could  not  be  maintained,  in  the  ab- 
sence of  the  power  somewhere  to 
regulate  the  relations  of  Individuals 
to  the  state  and  to  each  other.  Life, 
liberty  or  property  may  be  forfeited 
for  crime.  Private  property  may  be 
taken  for  public  use,  on  condition  of 
compensation,  or  by  taxation,  or  it 
may  be  transferred  by  judicial  pro- 
cess, for  the  satisfaction  of  private 
contracts  or  as  a  compensation  for 
private  wrongs  and  injuries.  The 
purpose  of  the  act  in  question,  as 
indicated  by  its  title,  is  the  suppres- 
sion of  'intemperance,  pauperism 
and  crime.'  It  cannot  be  denied  that 
these  are  public  purposes  within  the 
legitimate  scope  of  legislation,  nor 
can  it  be  doubted  by  any  observing 
and  intelligent  person  that  the  use 
of  intoxicating  liquors  is  the  fruitful 
source  of  many  of  the  evils  which 
afflict  society.  Pauperism,  vice  and 
crime  are  the  usual  concomitants  of 
the  unrestrained  indulgence  of  the 
appetite  for  strong  drink.  Impov- 
erishment of  families,  the  imposi- 
tion of  public  burdens,  insecurity  of 
life  and  property  are  consequent 
upon  the  prevalence  of  the  great 
evil  of  intemperance.  If  the  legis- 
lature was  impotent  to  deal  with 
the  traffic  in  intoxicating  liquors  or 
powerless  to  restrain  or  regulate  it 
In  the  interest  of  the  community  at 
large,  because  legislation  on  the 
subject  might,  to  some  extent,  inter- 
fere with  the  use  of  property  or 
the  prosecution  of  private  business, 
the  legislature  would  be  shorn  of 
one  of  its  most  usual  and  important 
functions.  But,  as  we  have  said,  the 


right  of  the  Legislature  to  regulate 
the  traffic  is  shown  by  the  uniform 
practice  of  the  government." 

Burckholter  v.  Village  of  McCon- 
nellsville,  20  Ohio  St.  308;  State  v. 
Paul,  5  R.  I.  185;  Ex  parte  Kennedy, 
23  Tex.  App.  77,  3  S.  W.  114.  See 
note  20  L.  R.  A.  645  defining  and 
distinguishing  different  liquors  or 
drinks.  See,  also,  7  L.  R.  A.  183, 
295;  9  L.  R.  A.  780. 

lea  Town  of  Marion  v.  Chandler, 
6  Ala.  899;  Ex  parte  Marshall,  64 
Ala.  266;  Ex  parte  Sikes,  102  Ala. 
173;  Yahn  v.  Merritt,  117  Ala.  485. 
But  the  statute  in  this  case  held  un- 
constitutional because  title  con- 
tains two  subjects.  Ex  parte  Wol- 
ters,  65  Gal.  269;  Ex  parte  McNally, 
73  Cal.  632;  Ex  parte  Christensen, 
85  Cal.  208;  Ex  parte  Mansfield,  106 
Cal.  400;  County  of  Los  Angeles  v. 
Eikenberry,  131  Cal.  461;  Paton  v. 
People,  1  Colo.  77;  Town  of  Val- 
verde  v.  Shattuck,  19  Colo.  104; 
Perdue  v.  Ellis,  18  Ga.  586;  Town  of 
Douglasville  v.  Johns,  62  Ga.  423; 
Mathis  v.  State,  93  Ga.  38;  City  of 
Burlington  v.  Kellar,  18  Iowa,  59; 
City  of  Keokuk  v.  Dressell,  47  Iowa, 
597;  U.  S.  Distilling  Co.  v.  City  of 
Chicago,  112  111.  19.  License  fee  not 
a  tax.  Dennehy  v.  City  of  Chicago, 
120  111.  627.  Amount  of  license 
fee  cannot  be  questioned  for  unrea- 
sonableness. People  v.  Cregier, 
138  111.  401;  City  of  Lawrenceburg  v. 
Wuest,  16  Ind.  337;  Lutz  v.  City  of 
Crawfordsville,  109  Ind.  466;  City  of 
Frankfort  v.  Aughe,  114  Ind.  77; 
Wagner  v.  Town  of  Garrett,  118  Ind. 
114;  Linkenhelt  v.  Town  of  Garrett, 
118  Ind.  599;  Moore  v.  City  of  In- 
dianapolis, 120  Ind.  483;  Franklin 
v.  Westfall,  27  Kan.  614;  In  re  Jahn, 
55  Kan.  694.  Ginger  ale.  State  v 


§  130 


POLICE  POWER. 


253 


hours,188  without  certain  places,168  and  the  quantities  in  which 
they  can  be  sold.167     It  may  go  further  and  prohibit  the  sale  to 


Harper,  42  La.  Ann.  312;  State  v. 
Riley,  49  La.  Ann.  1617;  Kitson  v. 
City  of  Ann  Arbor,  26  Mich.  325; 
Wolf  v.  City  of  Lansing,  53  Mich. 
367;  Sherlock  v.  Stuart,  96  Mich. 
193;  In  re  Wilson,  32  Minn.  145; 
State  v.  Priester,  43  Minn.  373;  Kan- 
sas City  v.  Hallett,  59  Mo.  App.  160; 
Kansas  City  v.  Flanders,  71  Mo. 
281;  City  of  Kansas  v.  Zahner,  73 
Mo.  App.  396;  State  v.  Mumford,  73 
Mo.  647;  Hershoff  v.  Treasurer  of 
City  of  Beverly,  45  N.  J.  Law,  288; 
State  v.  Clark,  28  N.  H.  (8  Fost) 
176;  State  v.  Hardy,  7  Neb.  377; 
State  v.  Bennett,  19  Neb.  191;  State 
v.  Stevens,  114  N.  C.  873;  In  re 
Schneider,  11  Or.  288;  Durach's  Ap- 
peal, 62  Pa.  491;  City  of  Seattle  v. 
Chin  Let,  19  Wash.  38;  State  v. 
Bering,  84  Wis.  585;  Rock  County  v. 
City  of  Edgerton,  90  Wis.  288. 

Cider  being  to  some  extent  intoxi- 
cating, a  license  may  be  imposed 
upon  its  sale.  Town  of  Pikeville  v. 
Huffman,  112  Ky.  360,  65  S.  W.  794. 
See,  also,  Monroe  v.  City  of  Law- 
rence, 44  Kan.  607,  sustaining  the 
validity  of  an  ordinance  regulating 
the  sale  of  cider.  See  Tiedeman, 
State  &  Fed.  Control  of  Persons  & 
Prop.  pp.  478-504,  and  9  L.  R.  A.  780. 

i«*  Election  Day:  Newman  v. 
State,  101  Ga.  534;  Iowa  City  v.  Mc- 
Innerny,  114  Iowa,  586;  State  v. 
Kidd,  74  Ind.  554;  Qualter  v.  State, 
120  Ind.  92;  State  v.  Hirsch,  125  Ind. 
207;  Com.  v.  Murphy,  95  Ky.  38; 
State  v.  Ludwig,  21  Minn.  202; 
Schuck  v.  State.  50  Ohio  St.  493; 
Kane  v.  Com.,  89  Pa.  522;  Wooster 
v.  State,  65  Tenn.  (6  Baxt.)  533; 
Haines  v.  State,  7  Tex.  Apr  30; 
Janks  v.  State,  29  Tex.  App.  23*. 

Sunday:  In  re  McAllister,  51 
Fed.  282;  Moore  v.  Bahr,  82  Fed.  19; 


Dorman  v.  State,  34  Ala.  216;  Mc- 
Cuen  v.  State,  19  Ark.  636;  Ex  parte 
Peacock,  25  Fla.  478;  Karwisch  v. 
City  of  Atlanta,  44  Ga.  204;  Hood  v. 
Von  Glahn,  88  Ga.  405;  Thomasson 
v.  State,  15  Ind.  449;  State  v.  Christ- 
man,  67  Ind.  328;  Minden  Corp.  v. 
Silverstein,  36  La.  Ann.  912;  Kurtz 
v.  People,  33  Mich.  279;  State  v. 
Ludwig,  21  Minn.  202;  State  v.  Har- 
ris, 50  Minn.  128;  State  v.  Francis, 
95  Mo.  44;  Sanders  v.  State,  34  Neb. 
872;  City  of  Piqua  v.  Zimmerlin, 
35  Ohio  St.  507;  Palmer  v.  State,  2 
Or.  66;  Hudson  v.  Geary,  4  R.  I.  485; 
McNeill  v.  State,  92  Tenn.  719;  Ga- 
bel  v.  City  of  Houston,  29  Tex.  336; 
Thon  v.  Com.,  31  Grat.  (Va.)  887. 
Christmas:  Reithmiller  v.  Peo- 
ple, 44  Mich.  282. 

Centennial  Day:  People  v.  Acker- 
man,  80  Mich.  588. 

Labor  Day:  Com.  v.  Francis,  152 
Mass.  508. 

Fourth  of  July:  People  v.  Whip- 
pie,  108  Mich.  587. 

Miscellaneous  days:  Ex  parte 
Newman,  9  Cal.  502;  Thomasson  v. 
State,  15  Ind.  449;  State  v.  Atkin- 
son, 139  Ind.  426;  People  v.  Hobson, 
48  Mich.  27;  Merchants'  Nat.  Bank 
v.  Jaffray,  36  Neb.  218;  Richardson 
v.  Goddard,  23  How.  (U.  S.)  41; 
City  of  Canton  v.  Nist,  9  Ohio  St. 
439;  City  of  Portland  v.  Schmidt, 
13  Or.  17;  Killer  v.  English,  4  Strob. 
(S.  C.)  486.  See,  also,  19  L.  R.  A. 
317. 

165  state  v.  Welch,  36  Conn.  215; 
State  v.  Brady,  41  Conn.  588;  State 
v.  Hellman,  56  Conn.  190;  Baldwin 
v.  City  of  Chicago,  68  111.  418;  Hed- 
derich  v.  State,  101  Ird.  564;  Decker 
v.  Sargeant,  125  Ind.  404;  Davis  v. 
Fasig,  128  Ind.  271;  City  of  Clinton 
v.  Grusendorf,  80  Iowa,  117;  State 


254 


POWERS. 


§    130 


certain  classes  of  society  needing  especially  the  protection  of  the 
•tate,  namely,  habitual  drunkards  and  minors,169  or  it  may  select 
those  to  whom  shall  be  granted  the  privilege  of  selling  and  regu- 
late the  manner  of  sale.189 


T.  Freeman,  38  N.  H.  426;  State  v. 
Thomas,  118  N.  C.  1221,  but  such 
an  ordinance  cannot  forbid  one  who 
Bells  liquor  to  occupy  his  own  prem- 
ises between  certain  hours.  State 
v.  Inhabitants  of  Borough  of  Wash- 
ington, 44  N.  J.  Law,  605;  Ward  v. 
City  of  Greenville,  67  Tenn.  (8 
Baxt.)  228.  Held  unreasonable  to 
close  saloons  between  six  P.  M.  and 
•ix  A.  M.  Smith  v.  City  of  Knox- 
yllle,  40  Tenn.  (3  Head)  245;  Max- 
well v.  Corporation  of  Jonesboro,  58 
Tenn.  (11  Heisk.)  257;  Village  of 
Platteville  v.  Bell,  43  Wis.  488. 

lee  state  v.  Davis,  130  Ala.  148; 
Town  of  Valverde  v.  Shattuck,  19 
Colo.  104;  Hart  v.  State,  88  Ga.  635; 
People  -v.  Cregier,  138  111.  401; 
Laugel  v.  City  of  Bushnell,  96  111. 
App.  618, — selling  hop  ale  within 
corporate  limits  of  city  declared 
nuisance.  Shea  v.  City  of  Muncie, 
148  Ind.  14;  Rowland  v.  City  of 
Greencastle,  157  Ind.  591. 

City  of  Topeka  v.  Raynor,  61  Kan. 
10.  An  ordinance  of  the  city  of  To- 
peka to  the  effect  that  "all  places 
where  persons  are  permitted  to  re- 
sort for  the  purpose  of  drinking  in- 
toxicating liquors  as  a  beverage  are 
common  nuisances,"  was  held  con- 
stitutiocal  and  not  repugnant  to 
Kansas  Bill  of  Rights,  §  1,  declaring 
that  "all  men  are  possessed  of  equal 
and  inalienable  natural  rights, 
among  which  are  life,  liberty  and 
the  pursuit  of  happiness."  In  re 
Wilson,  32  Minn.  145;  State  v. 
Schweickardt,  109  Mo.  496. 

The  application  of  the  principle 
would  certainly  sustain  laws  pro- 


hibiting the  sale  of  intoxicating 
liquors  in  the  neighborhood  of  edu- 
cational, charitable,  or  curative  in- 
stitutions. Dorman  v.  State,  34  Ala. 
216;  Trammell  v.  Bradley,  37  Ark. 
374;  Ex  parte  McClain,  61  Cal.  436; 
Bronson  v.  Village  of  Oberlin,  41 
Ohio  St.  476;  Heck  v.  State,  44  Ohio 
St.  536.  Prohibiting  sale  within 
prescribed  distance  from  state  fair 
grounds. 

IB?  Harris  v.  Town  of  Livingston, 
28  Ala.  577;  Dennehy  v.  City  of  Chi- 
cago, 120  111.  627;  Gunnarssohn  v. 
City  of  Sterling,  92  111.  569;  Tipton 
v.  People,  156  111.  241;  In  re  Jahn,  55 
Kan.  694;  State  v.  Brackett,  41  Minn. 
33;  State  v.  Priester,  43  Minn.  373; 
Brittain.  v.  Bethany,  31  Miss.  331; 
Fagan  v.  State,  47  N.  J.  Law,  175; 
State  v.  Pratt,  52  N.  J.  Law,  306; 
Kizer  v.  Randleman,  50  N.  C.  (5 
Jones)  428;  State  v.  Drake,  86  Tex. 
329.  But  see  Adams  v.  City  of  Al- 
bany, 29  Ga.  56. 

i«s  Sprayberry  v.  City  of  Atlanta, 
87  Ga.  120;  State  v.  Shinn,  63  Kan. 
638, — habitual  drunkard  defined; 
State  v.  YewelT,  63  Md.  120;  State 
v.  Ferguson,  33  N.  H.  424;  State  v. 
Austin,  114  N.  C.  855.  Ordinance 
prohibiting  unmarried  minor,  except 
when  acting  as  agent  for  parent  or 
guardian,  from  entering  a  bar 
room, — valid.  Woods  v.  Town  of 
Prineville,  19  Or.  108;  Com.  v.  Zelt, 
138  Pa.  615;  Com.  v.  Silvermen,  138 
Pa.  642;  Peacock  v.  Limburger  (Tex. 
Civ.  App.)  67  S.  W.  518.  (1902) 
Students.  See,  also,  notes  4  L.  R.  A. 
495;  7  L.  R.  A.  295;  9  L.  R.  A.  814: 
and  12  L.  R.  A.  433. 


§   130  POLICE  POWER.  255 

Such  prohibitions  or  regulations  under  license  statutes  to  be 
valid,  however,  must  not  regulate  interstate  commerce ;  infringe 
upon  or  interfere  with  other  rights  granted  exclusively  to  the 
Federal  government.170  The  use  of  blinds,  screens,  shades,  cur- 
tains or  other  devices  may  be  prohibited.171 

Without  the  power  of  enforcing  these  rules  and  regulations 
they  would  be  of  little  use  or  efficacy.  The  state  directly  or  in- 
directly, this  being  true  of  all  its  laws  or  regulations,  may  im- 
pose a  punishment,  either  fine  or  imprisonment,  or  both,172  for 

169  Foster  v.  Police  Com'rs  of  San  ting     the     assembling     of     females 

Francisco,  102  Cal.  483;   In  re  Wer-  there   for   the   purpose    of    enticing 

ner,  129  Cal.  567;  Towns  v.  City  of  customers. 

Tallahassee,    11    Fla.    130;    Whitten  Adams  v.  Cronin,  29  Colo.  488,  69 

v.    City  of   Covington,   43   Ga.  421;  Pac.  590.     Ordinance  valid  prohibit- 

City  of  Carthage  v.  Carlton,  99  111.  ing     physicians     from    giving    pre- 

App.  338;   City  of  Rochester  v.  Up-  scriptions    for    the    procurement   of 

man,  19  Minn.  108   (Gil.  78).     Such  liquor    to    be   used   as    a    beverage, 

a   regulation  held  to   include   drug-  Town  of  Carthage  v.  Buckner,  4  111. 

gists.  App.    317.     See,   also,   notes   on   the 

City    of    Hoboken    v.     Goodman,  sale  of  liquors  by  Clubs  in  2  L.  R.  A. 

68  N.  J.  Law,  217,  51  Atl.  1092.     The  494,   6  L.  R.  A.  128,  and  12  L.  R.  A. 

sale  of  intoxicating  liquors  at  retail  412. 

held  not  a  privilege  of  immunity  of  17°  Bowman  v.  Chicago  &  N.  W.  R. 

citizenship  protected  by  the  United  Co.,  125  U.  S.  465;  Leisy  v.  Hardin, 

States   constitution.     Harrington   v.  135  U.  S.  100;   In  re  Rahrer,  140  U. 

Trustees  of  Rochester,  10  Wend.  (N.  S.  545;  Rhodes  v.  State  of  Iowa,  170 

Y.)  547;  City  Council  of  Charleston  U.  S.  412;    In  re  Langford,  57  Fed. 

v.   Feckman,   3   Rich.   Law    (S.   C.)  570;    In   re   Spickler,   43   Fed.    653; 

385;  Provo  City  v.  Shurtliff,  4  Utah,  Jervey  v.  The  Carolina,  66  Fed.  1013; 

15.  Ex  parte  Edgerton,  59  Fed.  115;   Ex 

It  is  a  valid  police  regulation  in  parte  Jervey,  66  Fed.  957;   Bluthen- 

connection  with   the  sale  of  intoxi-  thai  v.  Southern  R.  Co.,  84  Fed.  920. 

eating  drinks  that  women  shall  not  See   also    Prentice   &   E.   Commerce 

be  employed  for  that  purpose.     Ex  Clause  of  Fed.   Const.;    Wilson  Act 

parte  Hayes,  98  Cal.  555;   Foster  v.  Aug.    8,    1890    (26    Stat.   313);    and 

Police  Com'rs  of  San  Francisco,  102  State  v.  Rhodes,  90  Iowa,  496. 

Cal.  483;   Adams  v.  Cronin,  29  Colo.  i"  Champer  v.  City  of  Greencastle, 

488,  69  Pac.  590;   State  v.  Reynolds,  138  Ind.  339;  Ritchie  v.  Zalesky,  98 

14   Mont.   383;    City  of  Hoboken   v.  Iowa,    589;     Com.    v.    Costello,    133 

Goodman,  68  N.  J.  Law,  217,  51  Atl.  Mass.  192;  Com.  v.  Moore,  145  Mass. 

1902;   Walter  v.  Com.,  88   Pa,   137;  244;    Com.    v.    Sawtelle,    150    Mass. 

City  of  Hoboken  v.  Greiner,  68  N.  J.  320;  People  v.  Kennedy,  105  Mich.  75; 

Law,  592,  53  Atl.  693.  Shultz    v.    Cambridge,    38    Ohio    St. 

It  is   a  fair   police   regulation   to  659.    See,  also,  24  L.  R.  A.  768. 

prohibit  any  keeper  of  a  house  of  172  Menken  v.  City  of  Atlanta,  78 

public   entertainment  where  intoxi-  Ga.    668;    Bagley   v.   State,   103   Ga. 
eating  drinks  are  sold,  from  permit- 


256 


POWERS. 


§   130 


the  violation  of  its  positive  commands,  and  if  in  its  wisdom  it 
deems  expedient,  in  order  to  secure  the  better  observance  of 
these  positive  laws  or  regulations,  it  may  make  those  who  violate 
such  laws  liable  civilly  for  the  legitimate  and  proximate  conse- 
quences of  such  violation.173 


388.  A  special  statute  in  this  case 
prohibiting  the  sale  of  intoxicating 
liquors  within  the  limits  of  a  cer- 
tain city  was  held  invalid  as  con- 
trary to  that  clause  of  the  constitu- 
tion forbidding  the  passage  of  a  spe- 
cial law  covered  by  the  provisions 
of  an  existing  general  law. 

Caldwell  v.  State,  101  Ga.  557, 
holds  as  in  the  case  just  cited,  the 
general  local  option  liquor  law  not 
having  been  repealed  at  the  time  of 
the  passage  of  these  special  acts. 
See,  also,  O'Brien  v.  State,  109  Ga. 
51;  Embry  v.  State,  109  Ga.  61; 
Griffin  v.  Eaves,  114  Ga.  65;  Harris 
v.  State,  114  Ga.  436;  In  re  Bollig, 
31  111.  88;  Block  v.  Town  of  Jack- 
sonville, 36  111.  301;  State  v.  Gur- 
lock,  14  Iowa,  444.  The  City  of  Ot- 
tumwa  held  as  not  having  the  ex- 
clusive power  of  punishing  the  il- 
legal sale  of  liquors.  Town  of 
bloomfleld  v.  Trimble,  54  Iowa,  399; 
Dunn  v.  Inhabitants  of  Framing- 
ham,  132  Mass.  436;  Village  of  Fair- 
mont v.  Meyer,  83  Minn.  456;  City 
of  Warrensburg  v.  McHugh,  122  Mo. 
649;  Village  of  Green  City  v.  Hoi- 
singer,  76  Mo.  App.  567;  Howe  v. 
Treasurer  of  Plainfield,  37  N.  J. 
Law,  145;  McMullen  v.  City  Coun- 
cil of  Charleston,  1  Bay  (S.  C.)  46; 
City  of  Seattle  v.  Pearson,  15  Wash. 
575;  Town  of  Moundsville  v.  Foun- 
tain, 27  W.  Va.  182;  Jelly  v.  Dils,  27 
W.  Va.  267;  Town  of  Marion  v. 
Chandler,  6  Ala.  899;  Franklin  v. 
Westfall,  27  Kan.  614;  State  v. 
Grimes,  83  Minn.  460;  State  v.  Har- 
ris, 50  Minn.  128.  Illegal  sales  of 


intoxicating  liquors  punishable  un- 
der the  general  law  may  also  be 
made  punishable  by  ordinance. 

!"s  Mulcahey  v.  Givens,  115  Ind. 
286;  Wall  v.  State,  10  Ind.  App.  530; 
Boos  v.  State,  11  Ind.  App.  257; 
State  v.  Cooper,  114  Ind.  12;  Neuer- 
berg  v.  Gaulter,  4  111.  App.  348;  Neu 
v.  McKechnie,  95  N.  Y.  632;  Mead 
v.  Stratton,  87  N.  Y.  493;  Davis  v. 
Standish,  26  Hun  (N.  Y.)  608. 

The  statute  makes  no  distinction 
between  cases  in  which  the  loss  of 
the  means  of  support  is  the  direct 
result  of  the  intoxication  and  those 
in  which  it  is  the  remote  result 
thereof;  it  only  requires  that  it 
should  be  established  that  the  loss 
of  the  means  of  support  is  the  re- 
sult of  such  intoxication.  Beers  v. 
Walhizer,  43  Hun  (N.  Y.)  254.  Con- 
tra, Bradford  v.  Boley,  167  Pa.  506. 
There  is  also  a  well  established  line 
of  cases  based  in  some  staies  upon 
express  statutory  provisions  holding 
that  one  injured  by  the  wrongful  act 
of  a  drunken  person  may  have  a 
right  of  recovery  in  an  action  for 
damages  against  the  dealer  in  liquor 
causing  the  intoxication.  See  Freese 
v.  Tripp,  70  111.  496;  King  v.  Haley, 
86  111.  106;  Roth  v.  Eppy,  80  111. 
283;  Wilkerson  v.  Rust,  57  Ind.  172; 
Church  v.  Higham,  44  Iowa,  482; 
Ganssly  v.  Perkins,  30  Mich.  492; 
Brooks  v.  Cook,  44  Mich.  617;  Bodge 
v.  Hughes,  53  N.  H.  614;  Bedore  v. 
Newton,  54  N.  H.  117;  Reinhardt  v. 
Fritzsche,  69  Hun  (N.  Y.)  565; 
Bertholf  v.  O'Reilly,  74  N.  Y.  515; 
Quinlan  v.  Welch,  141  N.  Y.  158; 


132 


POLICE  POWER. 


25} 


§  131.    The  police  power;  miscellaneous  illustrations  of  its  valid 
exercise. 

There  will  be  found,  upon  an  examination  of  the  authorities 
given  in  the  notes,  many  ordinances  and  regulations  controlling 
the  conduct  of  those  within  the  jurisdiction  of  the  law-making 
power,  having  for  their  ultimate  object  the  protection  of  either 
the  property,  members  or  good  morals  of  society.17* 

§  132.    The  exercise  of  the  police  power  continued;  the  exaction 
of  license  fees. 

The  state  through  the  exercise  of  its  police  power  has  the  right 
to  control  and  regulate  the  conduct  of  the  citizens  and  the  use 
of  their  property  so  long  as  such  regulation  and  control  has  for 
its  purpose  and  aim  the  protection  and  care  of  life  and  property. 
As  members  of  society  the  citizens  of  the  state  or  community 


Baker  V.  Beckwith,  29  Ohio  St.  314; 
Northern  Pac.  R.  Co.  v.  Whalen,  149 
U.  S.  157;  affirming  3  Wash.  T.  452; 
State  v.  Ludington,  33  Wis.  107. 

1"*  State  of  Arkansas  v.  Kansas  & 
T.  Coal  Co.,  96  Fed.  353.  The  state 
in  this  case  held  as  not  having  the 
power  to  prohibit  persons  belonging 
to  the  "low  and  lawless  type  of  hu- 
manity" from  coming  into  the  state. 
Steiner  v.  Ray,  84  Ala.  93.  The  sale 
and  inspection  of  commercial  fer- 
tilizers authorized.  Palmer  v.  Way, 
6  Colo.  106.  An  ordinance  requiring 
owners  of  lots  to  construct  side- 
walks in  front  of  them,  upheld  as  a 
valid  police  regulation.  Platte  &  D. 
Canal  &  Milling  Co.  v.  Lee,  2  Colo. 
App.  184.  Ordinance  requiring  re-con- 
struction of  a  ditch  by  boxing  or 
fluming  held  invalid  as  an  impair- 
ment of  vested  rights.  Wettengel  v. 
City  of  Denver,  20  Colo.  552.  Dis- 
tribution of  hand  bills  prohibited. 
See,  also,  City  of  Philadelphia  v. 
Brabender,  17  Pa.  Super.  Ct.  331, 
801  Pa.  574,  citing  City  of  Philadel- 
phia v.  Philadelphia  &  R.  R.  Co.,  58 

Abb.  Corp. — 17. 


Pa.  253,  and  distinguishing  People 
v.  Armstrong,  73  Mich.  288. 

Griggs  v.  City  of  Macon,  103  Ga. 
602.  Municipality  held  to  have  the 
power  to  regulate  the  keeping  of 
dogs  within  its  limits. 

City  of  Cairo  v.  Coleman,  53  111. 
App.  680.  The  power  to  inspect  and 
regulate  the  sale  of  "brick,  lumber, 
fire-wood  *  *  *"  does  not  author- 
ize the  inspection  of  articles  of  mer- 
chandise in  stationery  stores. 

Town  of  Rosedale  v.  Manner,  157 
Ind.  390.  An  ordinance  forbidding 
gates  to  swing  outward  held  reason- 
able. In  Lehigh  Coal  &  Iron  Co.  v. 
Capehart,  49  Minn.  539;  Sylvester 
Coal  Co.  v.  City  of  St.  Louis,  130 
Mo.  323,  and  City  of  St.  Charles  v. 
Eisner,  155  Mo.  671,  the  official 
weighing  and  inspection  of  coal  was 
authorized.  In  State  v.  Read,  12  R. 
I.  137,  a  law  prohibiting  the  sale  of 
any  merchandise  within  one  mile  of 
the  place  where  a  religious  society 
is  holding  an  out-door  meeting,  un- 
less the  society  consents  to  the  sale, 
held  valid  as  a  police  regulation. 


258 


POWERS. 


132 


owe  to  their  neighbors,  and  to  all  who  may  be  interested  or  af- 
fected, the  use  of  their  property  and  the  exercise  of  what  might 
be  considered,  otherwise,  as  natural  and  inalienable  rights,  in 
such  a  manner  as  not  to  injure  or  interfere  with  either  their 
rights  or  their  property. 

The  state  has  the  power  as  a  means  to  an  end,  namely,  the 
better  exercise  of  the  police  power,  to  impose  a  fee  or  license  upon 
property  used  in  a  certain  manner  or  upon  certain  callings  or  oc- 
cupations. Ordinarily  the  state  has  no  right  under  this  power  to 
impose  license  fees  for  purposes  of  revenue  without  regard  to  the 
question  of  the  regulation,  control,  or  use  of  such  property  or  occu- 
pation. The  imposition  of  license  fees,  having  for  their  purpose 
the  better  regulation  and  control  of  such  occupations,  or  the  use 
of  certain  property,  is  valid  as  coming  within  the  proper  exercise 
of  the  police  power,  when  they  are  imposed  not  for  the  purpose 
of  obtaining  a  revenue  but  for  the  ostensible  one. 

As  concrete  illustrations  of  the  valid  imposition  of  license  fees, 
we  find,  upon  an  examination  of  the  authorities,  that  ordinances 
or  regulations  have  been  held  valid  licensing  vehicles;175  those 


"5  Washington  Elec.  Vehicle 
Transp.  Co.  v.  District  of  Columbia, 
19  App.  D.  C.  462, — automobiles  not 
included. 

Johnson  v.  City  of  Macon,  114 
Ga.  426;  Gartside  v.  City  of  East 
St.  Louis,  43  111.  47;  City  of  Col- 
linsville  v.  Cole,  78  111.  114;  Gary 
v.  Borough  of  North  Plainfleld,  49  N. 
J.  Law,  110;  and  Borough  of  North 
Plainfleld  v.  Cary,  50  N.  J.  Law,  176, 
hold  that  a  vehicle  temporarily  en- 
gaged in  a  business  not  subject  to 
the  license.  Scudder  v.  Hinshaw, 
134  Ind.  56;  Tomlinson  v.  City  of 
Indianapolis,  144  Ind.  142;  Veneman 
v.  Jones,  118  Ind.  41.  Ordinance 
designating  place  where  omnibuses 
and  hacks  should  stand,  valid.  Sny- 
der  v.  City  of  North  Lawrence,  8 
Kan.  82;  City  of  Henderson  v.  Mar- 
shall (Ky.)  58  S.  W.  518.  Not  ap- 
plied to  wagons  used  by  coal  dealer 
filling  orders  to  customers.  Bowser 
r.  Thompson,  103  Ky.  331;  Com.  v. 


Page,  155  Mass.  227;  St«.te  v.  Robin- 
son, 42  Minn.  107;  City  of  Helena  v. 
Gray,  7  Mont.  486.  Ordinance  pro- 
viding where  hacks  should  stand. 
Knox  City  v.  Thompson,  19  Mo.  App. 
523.  An  ordinance  imposing  a 
license  fee  of  twenty-five  cents  for 
each  wagon  run  for  hire,  and  an  ad- 
ditional license  tax  for  each  six 
months  is,  as  a  matter  of  law,  an 
ordinance  for  revenue  purposes. 

City  of  St.  Louis  v.  Grone,  46  Mo. 
574.  Vehicles  used  exclusively  for 
private  purposes  not  subject  to  li- 
cense tax. 

Town  of  Cameron  v.  Stephenson, 
69  Mo.  372.  A  municipality  has  no 
power  to  impose  a  license  tax  upon 
wagons  of  outside  residents  engaged 
in  hauling  in  and  out  of  the  city. 

City  of  St.  Louis  v.  Woodruff,  71 
Mo.  92.  Public  sprinkling  cart  not 
subject  to  the  license  tax.  Kansas 
City  v.  Smith,  93  Mo.  App.  217;  City 


§  132 


POLICE  POWER. 


259 


engaged  in  certain  occupations;176  hackmen,  draymen,  express- 
men, and  others  engaged  in  carrying  passengers,  baggage  or 
freight  ;177  regulating  or  restraining  the  soliciting  of  trade  for 
boats,  carriages,  or  railroads;178  the  use  of  bicycles;  and  securing 
permits  by  a  water  company  before  opening  a  street  for  the  pur- 
pose either  of  making  connections  or  repairing  leaks.179  If  the 
charge  for  such  license  or  permit  is  greater  than  necessary  to 


of  St.  Louis  v.  Weitzel,  130  Mo.  600; 
City  of  Cape  May  v.  Cape  May 
Transp.  Co.,  64  N.  J.  Law,  80,  44 
Atl.  948;  Borough  of  Belmar  v. 
Barkalow,  67  N.  J.  Law,  504;  City 
of  New  York  v.  Reesing,  77  App. 
Div.  417,  79  N.  Y.  Supp.  331;  City  of 
Memphis  v.  American  Exp.  Co.,  102 
Term.  336.  An  ordinance  taxing 
wagon  tires  of  different  widths  ac- 
cording to  a  certain  schedule  held 
not  a  valid  exercise  of  the  police 
power.  "It  is  a  law  taxing  privileges 
rather  than  a  police  regulation  to 
prevent  use  of  narrow  tires." 

176  W.  W.  Cargill  Co.  v.  State  of 
Minnesota.  180  U.  S.  452;  Irving  v. 
City  of  Highlands,  11  Colo.  App. 
363;  Com.  v.  Brooks,  109  Mass.  355; 
State  v.  Schoenig,  72  Minn.  528; 
City  of  St.  Paul  v.  Lytle,  69  Minn. 
1;  Borough  of  Warren  v.  Geer,  117 
Pa.  207,  11  Atl.  415;  International 
Trading  Stamp  Co.  v.  City  of  Mem- 
phis, 101  Tenn.  181.  This  was  a 
privilege  tax,  and  therefore  held  ul- 
tra vires.  See,  also,  article  in  25 
Am.  Law  Rev.  595,  by  Wm.  L. 
Hodge,  and  §§  398-409,  post,  on 
license  fees,  where  the  subject  is 
fully  considered. 

ITT  state  v.  Robinson.  42  Minn. 
107;  Ex  parte  Battis,  40  Tex.  Cr. 
R.  112,  48  S.  W.  513.  An  ordinance 
in  this  case  making  it  a  misde- 
meanor to  "stop,  stand  or  detain" 
any  "carriage,  hack  or  vehicle"  un- 
der certain  circumstances  and  at  cer- 
tain places  was  held  an  unreason- 


able and  invalid  exercise  of  the  po- 
lice power  as  possessed  by  a  city 
to  license,  tax  and  regulate  hack- 
men,  draymen  and  others.  Ex  parte 
Vance,  42  Tex.  Cr.  R.  619,  62  S.  W. 
568.  Here  an  ordinance  requiring 
hack  drivers  to  remain  with  their 
vehicles,  excluding  those  in  charge 
of  street  cars,  was  held  an  unrea- 
sonable discrimination.  See,  also, 
§§  399-409,  post,  where  subject  of 
license  fees  is  fully  considered. 

178  Lindsay  v.  City  of  Anniston,  104 
Ala.    257;    Com.    v.    Matthews,    122 
Mass.    60;     City    of    Chillicothe    v. 
Brown,    38    Mo.   App.    609.     In  Nap- 
man  v.  People,   19  Mich.   352,  it  Is 
held    that    arrangements    made,    by 
railroad    companies    with    omnibus 
companies  for  the  delivery  of  pas- 
sengers and  their  baggage,  not  un- 
lawful in  themselves,  and  which  if 
carried  out  in  their  own  cars  or  on 
their  own  premises  are  exempt  from 
municipal  interference,  and  city  or- 
dinances prohibiting  hackmen  from 
approaching    within    a   certain    dis- 
tance  of  trains  to   solicit  business, 
so   far  as  they  attempt  such   inter- 
ference,    are     invalid.     Village     of 
Niagara  Falls  v.   Salt,  45  Hun    (N. 
Y.)   41. 

179  Borough      of     Lansdowne      v. 
Springfield  Water  Co.,  7  Del.  Co.  R. 
506. 

Bicycles:  Davis  v.  Petrinovich, 
112  Ala.  654;  Mercer  v.  Corbin,  117 
Ind.  450;  Swift  v.  City  of  Topeka, 
43  Kan.  671;  In  re  Wright,  29  Hun 


260 


POWERS. 


§  133 


cover  the  cost  of  the  regulation  or  inspection,  such  charge  will 
undoubtedly  be  held  unreasonable  and  the  ordinance  imposing 
the  same  invalid,  upon  the  theory  that  the  police  power  cannot 
be  invoked  or  exercised  as  a  general  means  of  raising  revenue.180 

§  133.    The  exercise  of  the  police  power;  further  illustrations. 

The  peace  and  safety  of  the  community  are  proper  ends  for 
the  exercise  of  the  police  power  by  public  authorities,  and  if  in 
their  discretion,  subject  to  general  limitations,  the  carrying  on 
of  an  occupation,  the  making  of  certain  noises,181  or  the  doing 
of  certain  acts,182  are  held  to  disturb  the  public  peace  or  be  a 


(N.  Y.)  457;  Fuller  v.  Redding,  16 
Misc.  (N.  Y.)  634;  State  v.  Yopp, 
97  N.  C.  477. 

iso  City  of  Saginaw  v.  Swift  Elec. 
Light  Co.,  113  Mich.  660.  An  ordi- 
nance charging  electric  light  com- 
panies fifty  cents  per  annum  for  in- 
specting each  pole  maintained  by 
them  held  unreasonable  and  invalid, 
as  the  actual  cost  of  the  inspection 
did  not  exceed  five  cents  per  pole. 
City  of  New  Haven  v.  New  Haven 
Water  Co.,  44  Conn.  105.  See,  also, 
as  illustrating  text:  Taylor  v.  City 
of  Pine  Bluffs,  34  Ark.  603,  which 
holds  that  under  the  authority  grant- 
ed to  pass  ordinances  providing  for 
the  weighing  of  hay,  wood  and  other 
articles  offered  for  sale,  a  municipal 
corporation  has  no  power  to  pass 
such  an  ordinance  for  the  purpose 
of  raising  revenue. 

isi  City  of  Chariton  v.  Simmons, 
87  Iowa,  226;  City  of  Bloomington 
v.  Richardson,  38  111.  App.  60;  Com. 
v.  Plaisted,  148  Mass.  375.  An  or- 
dinance restraining  itinerant  mu- 
sicians from  playing  on  the  street, 
valid,  and  a  member  of  the  Salva- 
tion Army  participating  in  a  parade 
defined  as  an  itinerant  musician. 
This  held  true  although  it  was 
claimed  that  the  act  was  one  of  re- 


ligious worship  only.  The  court 
said  that  the  constitutional  guaran- 
tee of  religious  freedom  did  not  pre- 
vent the  adoption  of  reasonable 
rules  for  the  use  of  streets  and  pub- 
lic places. 

Frazee's  Case,  63  Mich.  396.  An 
ordinance  in  this  case  which  pro- 
hibited persons,  associations  or  or- 
ganizations from  marching,  parad- 
ing or  driving  in  or  upon  or  through 
the  streets  of  the  city  with  musical 
instruments,  bugles,  flags  or  torches 
without  first  having  obtained  the 
consent  of  the  mayor  or  common 
council  of  the  city,  was  held  unrea- 
sonable and  invalid.  Village  of 
Vicksburg  v.  Briggs,  102  Mich.  551. 
Boisterous  assemblages  prohibited; 
In  re  Bushey,  105  Mich.  64;  State  v. 
White,  64  N.  H.  48;  Roderick  v. 
Whitson,  51  Hun  (N.  Y.)  620,— itin- 
erant musicians;  Washington 
Com'rs  v.  Frank,  46  N.  C.  (1  Jones) 
436.  The  principle  stated  in  Fra- 
zer's  Case,  63  Mich.  396,  has  been 
followed  in  City  of  Chicago  v.  Trot- 
ter, 136  111.  430;  Anderson  v.  City  of 
Wellington,  40  Kan.  173,  and  State 
v.  Bering,  84  Wis.  585. 

isa  Saxton  v.  City  of  Peoria,  75 
111.  App.  397.  Ordinance  prohibiting 
persons  from  entering  upon  private 


§  134 


POLICE  POWER. 


261 


menace  to  the  public  safety,  comfort  and  convenience,  regulations 
controlling  or  prohibiting  such  acts  or  occupations  are  undoubt- 
edly valid.183 

§  134.    Establishment  of  public  markets. 

The  power  of  the  public  authorities  to  inspect  and  control  the 
sale  of  articles  of  food  intended  for  consumption  is  conceded, 
the  object  being  the  preservation  of  the  health  of  the  community. 
The  power  exists  therefore  in  municipal  authorities  to  either  es- 
tablish, and  then  regulate  and  control  public  markets,184  as  they 


premises  against  consent  of  owner 
is  a  valid  police  regulation. 

Ex  parte  McCarver,  39  Tex.  Cr. 
R.  448,  46  S.  W.  936.  Curfew  or- 
dinance held  unreasonable  and 
therefore  void. 

City  of  Buffalo  v.  Marion,  13  Misc. 
(N.  Y.)  639.  An  ordinance  prohibit- 
ing sale  of  watches  at  auction  after 
six  o'clock  in  the  evening  valid. 

iss  City  of  Cottonwood  Falls  v. 
Smith,  36  Kan.  401.  Shooting  fire 
arms.  City  of  Newport  v.  Holly,  108 
Ky.  621.  Boisterous  and  disorderly 
conduct.  Com.  v.  Abrahams,  156 
Mass.  57.  Speaking  in  public  park 
without  permission.  Village  of 
Vicksburg  v.  Briggs,  102  Mich.  551. 
Boisterous  assemblage.  In  re 
Bushy,  105  Mich.  64.  General  dis- 
turbance. State  v.  Cantieny,  34  Minn. 
1.  Noisy  and  disorderly  conduct. 
An  ordinance  of  the  city  of  Minne- 
apolis prohibited  the  making  of 
"any  noise,  riot,  disturbance  or  im- 
proper diversion."  The  court  in  con- 
struing the  word  "noise"  said,  "We 
think  too,  that  it  was  a  valid  pro- 
hibition of  the  making  of  any  un- 
reasonable 'noise'  of  a  nature  to 
disturb  the  community  such  as 
shouting  upon  the  streets  at  night 
even  though  it  should  so  happen 
that  no  one  was  in  fact  aroused 


from  sleep,  alarmed  or  disturbed." 
City  of  St.  Charles  v.  Meyer,  58  Mo. 
86.  Charivari.  State  v.  Cainan,  94 
N.  C.  880.  Loud  and  boisterous 
swearing.  See,  also,  cases  cited 
generally  under  this  section. 

is*  See  cases  on  the  establishment 
and  regulation  of  public  markets 
collected  in  27  Am.  &  Eng.  Corp. 
Cas.  625;  Attorney  General  v. 
Borough  of  Cambridge,  L.  R.  6  H.  L. 
303;  City  of  New  Orleans  v.  Mor- 
ris, 3  Woods,  103,  Fed.  Cas.  No.  10,- 
182;  Ex  parte  Byrd,  84  Ala.  17;  City 
of  Jacksonville  v.  Ledwith,  26  Fla. 
163;  Blanchard  v.  Ivers,  40  Fla.  117; 
Bethune  v.  Hughes,  28  Ga.  560; 
City  of  Atlanta  v.  White,  33  Ga.  229; 
Caldwell  v.  City  of  Alton,  33  111. 
416. 

City  of  Bloomington  v.  Wahl,  46 
111.  489.  A  grant  to  a  municipality 
to  establish  and  maintain  public 
markets  with  the  proviso  that  the 
mayor  may  license  private  markets 
does  not  give  to  that  municipality 
the  power  to  prohibit  sales  else- 
where than  at  the  public  market. 

City  of  Burlington  v.  Dankwardt, 
73  Iowa,  170;  Davis  v.  Town  of  Ani- 
ta, 73  Iowa,  325;  Guillotte's  Heirs  v. 
City  of  New  Orleans,  12  La.  Ann.  479. 
Power  of  council  to  discontinue  pub- 
lic markets  considered.  Cougot  v. 


262 


POWERS. 


§  135 


may  be  termed,  or  places  at  which  all  articles  of  food  shall  be 
offered  for  sale  and  sold,  or  to  regulate  and  control  markets  es- 
tablished by  private  individuals  and  carried  on  as  private  enter- 
prises. The  health  of  the  community  being,  as  many  times  sug- 
gested, one  of  the  purposes  of  the  organization  of  government, 
and  the  purity  of  food  and  drink  having  such  an  important  effect 
upon  that  health,  is  a  ground  for  the  exercise  of  the  power.188 

§  135.    Public  markets ;  the  power  to  regulate. 

The  power  to  establish  and  maintain  a  public  market  .would 
necessarily  carry  with  it  as  incidental  to  that  authority  or  as  an 
implied  power,  the  right  to  pass  all  the  rules  and  regulations 


City  of  New  Orleans,  16  La.  Ann. 
21;  Spaulding  v.  City  of  Lowell, 
40  Mass.  (23  Pick.)  71. 

Gale  v.  Village  of  Kalamazoo,  23 
Mich.  344.  A  city  cannot  by  con- 
tract bargain  away  any  of  its  legis- 
lative powers.  Henkel  v.  City  of 
Detroit,  49  Mich.  249;  Taggart  v. 
City  of  Detroit,  71  Mich.  92. 

Petz  v.  City  of  Detroit,  95  Mich. 
169.  Power  to  discontinue  public 
market  after  once  being  established 
considered  in  this  case.  City  of  St. 
Paul  v.  Colter,  12  Minn.  41  (Gil. 
16) ;  State  v.  District  Ct.  of  Ramsey 
County,  84  Minn.  377;  City  of  St. 
Louis  v.  Jackson,  25  Mo.  37;  Harney 
v.  City  of  St.  Louis,  90  Mo.  214. 

Ketchum  v.  City  of  Buffalo,  14 
N.  Y.  (4  Kern.)  356.  The  express 
power  given  to  establish  a  market, 
as  a  necessary  incident  to  that  au- 
thority, follows  the  right  to  pur- 
chase real  estate  upon  which  to  lo- 
cate that  market.  Peterson  v.  City 
of  New  York,  17  N.  Y.  449;  Wade  v. 
City  of  New  Bern,  77  N.  C.  460; 
State  v.  Tyson,  111  N.  C.  687;  White 
v.  Kent,  11  Ohio  St.  550;  Gall  v. 
City  of  Cincinnati,  18  Ohio  St.  563. 

Wartman  v.  City  of  Philadelphia, 
33  Pa.  202.  The  right  to  establish 


markets  and  to  shift  them  from 
place  to  place  does  not  grant  by  im- 
plication the  right  to  build  them  on 
the  public  highway.  City  of  Pales- 
tine v.  Barnes,  50  Tex.  538;  Yatea 
v.  City  of  Milwaukee,  12  Wis.  673; 
Wahl  v.  City  of  Milwaukee,  23  Wis. 
272.  Ordinance  authorizing  city 
butchers  to  have  their  slaughtering 
done  at  certain  specified  establish- 
ments, etc.,  valid. 

In  common  with  many  powers  be- 
longing to  municipal  corporations, 
the  right  to  establish  markets  is  a 
continuing  one.  See  City  of  Jack- 
sonville v.  Ledwith,  26  Fla.  163; 
Cooper  v.  City  of  Detroit,  42  Mich. 
584;  Gall  v.  City  of  Cincinnati,  and 
Wartmen  v.  City  of  Philadelphia, 
supra. 

iss  State  v.  Garibaldi,  44  La.  Ann. 
809.  The  power  to  regulate  private 
markets  cannot  be  delegated  or 
vicariously  exercised  unless  the  au- 
thority to  delegate  is  specially  grant- 
ed by  the  legislature,  and  an  ordi- 
nance requiring  written  consent  ol 
all  property  owners  within  six  hun- 
dred feet  of  place  selected  for  mar- 
ket is  void.  Twelfth  St.  Market  Co. 
v.  Philadelphia  &  R.  Terminal  R. 
Co.,  142  Pa.  580. 


§  135 


POLICE  POWER. 


263 


necessary  to  maintain  the  market  itself  and  the  foods  offered  for 
sale  in  that  condition  which  best  accomplish  the  purpose  the  basis 
of  a  legal  exercise  of  the  power,188  and  so  long  as  these  rules  and 
regulations — concerning  the  manner  and  the  time  in  which  goods 
shall  be  offered  for  sale  ;187  the  right  of  inspection  by  the  proper 
officials  of  the  municipality;  the  confiscation  and  destruction  of 
foods  tainted  or  otherwise  unfit  for  food,  and  provisions  that  no 
articles  shall  be  offered  for  sale  except  as  inspected  or  offered 
at  such  public  market,188 — are  uniform  and  certain  in  their  ap- 
plication, are  reasonable,  and  do  not  discriminate  either  as 
against  persons  or  localities;  they  are  valid  and  legitimate  exer- 
cises of  the  police  power  of  the  state.189 


186  city  of  Bowling  Green  v.  Car- 
son, 73  Ky.  (10  Bush)  64;  Douat 
v.  Beombay,  15  La.  Ann.  377;  City 
of  New  Orleans  v.  Stafford,  27  La. 
Ann.  417;  Vidalat  v.  City  of  New 
Orleans,  43  La.  Ann.  1121;  Hatch  v. 
Pendergast,  15  Md.  251. 

State  v.  Rowe,  72  Md.  548.  An 
ordinance  setting  apart  a  portion  of 
the  public  market  for  the  sale  of 
fish  and  requiring  those  desiring  to 
engage  in  such  business  to  pay  a 
yearly  license  of  $100  is  void,  being 
an  attempt  to  raise  revenue  and  not 
a  legitimate  exercise  of  the  police 
power. 

Graves  v.  City  of  Biloxi  (Miss.) 
29  So.  768;  City  of  St.  Louis  v. 
Jackson,  25  Mo.  37;  City  of  St. 
Louis  v.  Freivogel,  95  Mo.  533. 

Kip  v.  City  of  Paterson,  26  N.  J. 
Law  (2  Dutch.)  298.  An  ordinance 
is  illegal  and  not  a  reasonable  police 
regulation  where  it  imposes  a  tax 
of  5c  upon  those  using  market 
stands  for  each  time  used.  But  in 
City  of  Cincinnati  v.  Buckingham, 
10  Ohio,  257,  a  charge  of  twenty-five 
cents  was  not  held  unlawful. 

Hutching  v.  Town  of  Durham,  118 
N.  C.  457.  The  municipal  power  to 
revoke  a  license  granted  one  for  the 
use  of  a  stall  in  a  municipal  market 


house  sustained.  City  of  Philadel- 
phia v.  Davis,  6  Watts  &  S.  (Pa.) 
269;  Newson  v.  City  of  Galveston, 
76  Tex.  559. 

I&T  Henry  v.  City  of  Macon,  91  Ga. 
268;  City  of  Bowling  Green  v.  Car- 
son, 73  Ky.  (10  Bush)  64;  State  v. 
Sarradat,  46  La.  Ann.  700. 

iss  Henry  v.  City  of  Macon,  91  Ga. 
268;  City  of  Bloomington  v.  Wahl, 
46  111.  489.  An  ordinance  prohibit- 
ing persons  from  keeping,  at  any 
hour  of  the  day,  private  markets 
outside  of  the  designated  public 
market,  held  unreasonable  as  being 
in  restraint  of  trade  and  tending  to 
create  a  monopoly. 

City  of  New  Orleans  v.  Kientz,  52 
La.  Ann.  950;  Town  of  Crowley  v. 
Rucker,  107  La.  213;  Nightingale's 
Case,  28  Mass.  (11  Pick.)  167;  Tag- 
gart  v.  City  of  Detroit,  71  Mich.  92; 
Hughes  v.  Recorder's  Ct.  of  Detroit, 
75  Mich.  574. 

189  As  a  rule,  ordinances  are  valid, 
prohibiting  the  sale  of  the  usual 
market  commodities  at  places  other 
than  those  designated  or  at  the  pub- 
lic market.  This  is  especially  true 
where  such  regulations  or  prohibi- 
tions are  uniform  and  reasonable  in 
their  operation  and  application,  see 
Natal  v.  State  of  Louisiana.  139  U. 


264 


POWERS. 


§  136 


§  136.    The  right  to  authorize  private  markets. 

As  already  stated,  the  public  authorities  may,  in  their  discre- 
tion, either  construct  and  maintain  public  markets  or  they  may 
give  to  certain  individuals  within  their  jurisdiction  the  right  to 
construct  and  maintain  private  markets  at  which  foods  or  other 
articles  intended  for  consumption  by  the  community  may  be  of- 
fered for  sale  and  sold.190  The  power  to  pass  necessary  rules  for 


S.  621;  affirming  39  La.  Ann.  439; 
Shelton  v.  City  of  Mobile,  30  Ala. 
540;  Ex  parte  Byrd,  84  Ala.  17;  City 
of  Jacksonville  v.  Ledwith,  26  Fla. 
163;  State  v.  Berard,  40  La.  Ann. 
172;  Gossigi  v.  City  of  New  Orleans, 
41  La.  Ann.  522;  State  v.  Davidson, 
50  La.  Ann.  1297.  But  an  ordinance 
cannot  interfere  with  the  sale  of 
articles  in  the  original  packages  in 
which  they  are  imported  into  the 
state.  Com.  v.  Ellis,  158  Mass.  555; 
People  v.  Keir,  78  Mich.  98;  State 
v.  McMahon,  62  Minn.  110;  City  of 
St.  Louis  v.  Jackson,  25  Mo.  37;  Por- 
ter v.  City  of  Water  Valley,  70  Miss. 
560;  Bush  v.  Seabury,  8  Johns.  (N. 
Y.)  327;  City  of  Buffalo  v.  Webster, 
10  Wend.  (N.  Y.)  100;  State  v. 
Pendergrass,  106  N.  C.  664;  Town 
Council  of  Winnsboro  v.  Smart,  11 
Rich.  Law  (S.  C.)  551;  Vosse  v.  City 
of  Memphis,  77  Tenn.  (9  Lea)  294; 
Newson  v.  City  of  Galveston,  76  Tex. 
559.  Though  some  cases  hold  such 
ordinances  in  restraint  of  trade,  as 
tending  to  create  a  monopoly,  op- 
pressive and  unreasonable,  and 
therefore  illegal,  see  Bethune  v. 
Hughes,  28  Ga.  560;  Henry  v.  City 
of  Macon,  91  Ga.  268;  Caldwell  v. 
City  of  Alton,  33  111.  416.  Decision 
based  upon  limited  charter  pro- 
visions. City  of  Bloomington  v. 
Wahl,  46  111.  489;  City  of  Davenport 
v.  Kelly,  7  Iowa,  102;  City  of  Burl- 
ington v.  Dankwardt,  73  Iowa,  170; 
City  of  Bowling  Green  v.  Carson,  73 


Ky.  (10  Bush)  64;  Lamarque  v.  City 
of  New  Orleans,  1  McGloin  (La.) 
28;  State  v.  Blaser,  36  La.  Ann.  363; 
Mestayer  v.  Corrige,  38  La.  Ann. 
707;  Vidalat  v.  City  of  New  Orleans, 
43  La.  Ann.  1121;  Hughes  v.  Record- 
er's Ct.  of  Detroit,  75  Mich.  574; 
City  of  St.  Paul  v.  Laidler,  2  Minn. 
190  (Gil.  159). 

190  Natal  v.  State  of  Louisiana,  139 
U.  S.  621;  Le  Claire  v.  City  of  Dav- 
enport, 13  Iowa,  210;  State  v.  Be- 
rard, 40  La.  Ann.  33;  State  v.  Bar- 
the,  41  La.  Ann.  46.  Ordinance  pro- 
hibiting private  markets  within  ra- 
dius of  six  squares  from  public  mar- 
ket does  not  contemplate  measure- 
ment on  an  air  line,  but  a  distance 
of  six  squares  over  which  custom- 
ers would  be  able  to  walk  from  one 
market  to  the  other. 

State  v.  Natal,  42  La.  Ann.  612. 
Square  and  block  mean  the  same 
thing,  in  regard  to  distance  from 
city  market. 

State  v.  Dubarry,  44  La.  Ann. 
1117.  A  city  ordinance  giving  the 
city  council  the  power  to  grant  per- 
mits for  the  establishment  or  main- 
tenance of  private  markets  was  held 
invalid,  the  discretion  vested  by  such 
ordinance  in  the  city  council  being 
in  no  way  regulated  or  controlled. 
State  v.  Dubarry,  46  La.  Ann.  33; 
Gossigi  v.  City  of  New  Orleans,  41 
La.  Ann.  522;  City  of  New  Orleans  v. 
Faber,  105  La.  209.  New  Orleans  or- 
dinance No.  312,  adopted  under  au« 


§  137 


POLICE  POWER. 


265 


keeping  the  building  itself  and  the  articles  within  it  in  a  health- 
ful and  proper  condition  exists  in  the  same  degree  and  to  the 
same  extent  as  in  the  maintenance  of  public  markets.191 

§  137.    The  control  of  nuisances. 

Public  authorities  have  also  the  further  power  either  inher- 
ently possessed  or  as  subordinate  agencies  obtained  through  the 
grant  of  lawful  authority  to  regulate  and  suppress  or  abate  what 
are  commonly  called  public  nuisances.192  This  right  to  control 


thority  of  Act  No.  34  of  1900,  not  un- 
constitutional as  prohibiting  a  pri- 
vate market  within  3200  feet  of  a 
public  market  when  prior  to  the 
passage  of  the  ordinance  a  dealer  had 
established  a  market  within  the  pro- 
hibited lines.  The  court  held  that 
every  citizen  holds  his  property  sub- 
ject to  the  proper  exercise  of  the  po- 
lice power  and  that  he  did  not  ac- 
quire a  vested  right  to  conduct  the 
same  business  in  the  same  place. 

Com.  v.  Ellis,  158  Mass.  555.  Or- 
dinance prohibiting  selling  of  goods 
or  articles  in  any  street  or  from  any 
building,  except  in  accordance  with 
a  permit  from  superintendent  of 
streets  is  reasonable,  constitutional 
and  valid. 

Porter  v.  City  of  Water  Valley,  70 
Miss.  560;  Schopp  v.  City  of  St. 
Louis,  117  Mo.  131.  A  power  "to 
regulate  the  use  of  streets"  does  not 
authorize  an  ordinance  leasing  space 
on  a  street  in  front  of  business 
houses  for  produce  dealers,  such  use 
of  street  being  a  nuisance  and  un- 
lawful. 

191  City  of  Jacksonville  v.  Led- 
with,  26  Pla.  163;  City  of  New  Or- 
leans v.  Morris,  3  Woods,  103,  Fed. 
Cas.  No.  10,182. 

i»2Soltau  v.  De  Held,  2  Sim.  (N. 
S.)  133.  "I  conceive  that  to  consti- 
tute a  public  nuisance  the  thing 
must  be  such  as  in  its  nature  or  its 


consequences,  is  a  nuisance,  an  in- 
jury or  a  damage  to  all  persons  who 
come  within  the  sphere  of  its  opera- 
tion though  it  may  be  so  in  a  great- 
er degree  to  some  than  it  is  to  oth- 
ers." 

Ex  parte  Taylor,  87  Cal.  91;  Beck- 
ley  v.  Skroh,  19  'Mo.  App.  75.  "The 
only  requirement  of  the  law  is,  that 
the  damage  must  be  real,  not  fanci- 
ful; not  a  mere  annoyance  to  a  per- 
son of  fastidious  tastes  and  habits, 
but  such  sensible  and  real  damages 
as  a  sensible  person,  if  subjected  to 
it,  would  find  injurious  to  him.  Any 
use  of  property  that  corrupts  the 
atmosphere  with  noxious  vapors  and 
noisome  smells,  producing  injury  to 
property  or  health,  or  impairing  the 
comfortable  enjoyment  of  it  as  a 
dwelling,  etc.,  is  a  nuisance  inviting 
a  recovery  for  the  damage." 

Westcott  v.  Middleton,  43  N.  J. 
Eq.  (16  Stew.)  478;  Board  of  Health 
v.  Jersey  City,  55  N.  J.  Eq.  116; 
Board  of  Health  of  Yonkers  v.  Cop- 
cutt,  140  N.  Y.  12. 

City  of  Rochester  v.  Collins,  12 
Barb.  (N.  Y.)  559.  The  power  giv- 
en to  abate  and  remove  nuisances  in 
this  case  was  held  as  conferring  no 
authority  to  prevent  them  nor  to  im- 
pose penalties  for  their  creation. 

Clark  v.  City  of  Syracuse,  13 
Barb.  (N.  Y.)  32;  Rogers  v.  Barker, 
31  Barb.  (N.  Y.)  447;  Hellen  v.  Noe, 


206  POWERS.  g  137 

and  suppress  public  nuisances  comes  within  the  valid  exercise  of 
the  police  power  by  the  state  and  has  for  its  purpose  the  care 
and  protection  of  society  as  a  whole  and  the  regulation  of  the 
use  of  property  and  the  acts  of  individuals  as  to  best  conserve 
the  public  interests  and  lead  to  that  condition  of  the  state  result- 
ing in  the  greatest  advantage  to  all. 

The  various  acts  or  conditions  named  in  preceding  sections 
may  be  controlled  and  regulated  not  only  as  especially  detrimen- 
tal to  the  public  health,  safety  or  morals,  but  directly  as  nui- 
sances and  indirectly  detrimental  or  injurious. 

A  nuisance  has  been  defined  as  "Anything  that  produces  an 
annoyance,  anything  that  disturbs  one  or  is  offensive ;  but  in  legal 
phraseology  it  is  applied  to  that  class  of  wrongs  that  arise  from 
the  unreasonable,  unwarrantable  or  unlawful  use  by  a  person 
of  his  own  property,  real  or  personal,  or  from  his  own  improper, 
indecent  or  unlawful  personal  conduct,  working  an  obstruction 
of  or  injury  to  a  right  of  another  or  of  the  public,  and  produc- 
ing such  material  annoyance,  inconvenience,  discomfort  or  hurt, 
that  the  law  will  presume  a  consequent  damage."  And  further: 
"A  public  nuisance  is  a  violation  of  a  public  right,  either  by  a 
direct  encroachment  upon  public  rights  or  property,  or  by  doing 
some  act  which  tends  to  a  common  injury,  or  by  omitting  to  do 
some  act  which  the  common  good  requires,  and  which  it  is  the 

25  N.  C.  (3  Ired.)  493;  Appeal  of  person  charged.  No  excuse  or  de- 
Borough  of  Butler  (Pa.)  1  Atl.  604.  fense  is  possible.  The  fact  being 

Com.  v.  Miller,  139  Pa.  77.  "If  it  established,  that  the  act  or  thing  en- 
affects  the  rights  of  the  community  dangers  the  life,  health  or  property 
in  general;  not  merely  of  a  few  of  the  public,  or  any  considerable 
persons;  if  it  damages  or  menaces  part  of  it,  the  offense  is  proved,  and 
all  persons  who  come  within  the  tiiere  can  be  no  justification.  Every 
sphere  of  its  operation  though  it  person  is  absolutely  bound  so  to 
may  vary  in  its  effects  on  individ-  conduct  himself,  and  so  to  exercise 
uals  it  amounts  to  a  common  or  a  what  are  regarded  as  his  natural  or 
public  nuisance."  personal  rights,  as  not  to  interfere 

Com.  v.  Yost,  197  Pa.  171;   Parker  unnecessarily  or  unreasonably  with 

ft  W.  Pub.  Health,   §   178.     "If   the  other    persons    in    the    exercise    of 

unwarranted  act  or  thing  complain-  rights  common  to  all  citizens.     Ev- 

ed  of  does  in  fact  operate  injurious-  ery   breach   of    this   obligation   con- 

ly   upon    the    rights    of    the    public,  stitutes   a   nuisance.     Such   has   al- 

it  is  a  common   nuisance,   irrespec-  ways    been   the    law;    the   principle 

tive  of  any  motive  or  intent,  wrong-  has  been  invariable." 
ful  or  innocent,  on  the  part  of  the 


§  137 


POLICE  POWER. 


267 


duty  of  a  person  to  do,  and  the  omission  to  do  which  results  in- 
juriously to  the  public.  Every  person  owes  certain  duties  to  the 
public,  and  the  failure  to  discharge  them,  whereby  the  public  is 
injured,  is  regarded  at  common  law  as  a  quasi  crime.  Among 
these  duties  is  that  of  so  using  his  own  property  as  not  to  injure 
the  public."193 

Motive  ordinarily  is  not  one  of  the  essentials  of  an  act  neces- 
sary to  characterize  it  as  a  nuisance.  Neither  is  it  true  that  the 
mere  legislative  determination  that  a  certain  act  or  use  of  prop- 
erty is  a  nuisance,  establishes  the  fact  that  such  act,  condition 


193  Wood,  Nuisances,  §§  1,  17;  Cos- 
tello  v.  State,  108  Ala.  45;  City  & 
County  of  San  Francisco  v.  Buck- 
man,  111  Cal.  25;  Walker  v.  Jame- 
son, 140  Ind.  591;  City  of  Evans- 
ville  v.  Miller,  146  Ind.  613;  City  of 
Centerville  v.  Miller,  57  Iowa,  56; 
Municipality  No.  1  v.  Wilson,  5  La. 
Ann.  747;  Board  of  Aldermen  of 
Opelousas  v.  Norman,  51  La.  Ann. 
736;  Hisey  v.  City  of  Mexico,  61  Mo. 
App.  248;  Ex  parte  O'Leary,  65  Miss. 
80. 

Hutton  v.  City  of  Camaen,  39  N.  J. 
Law,  122.  "The  authority  to  decide 
when  a  nuisance  exists,  is  an  au- 
thority to  find  facts,  to  estimate 
their  force,  and  to  apply  rules  of 
law  to  the  case  thus  made.  This  is 
a  judicial  function,  and  it  is  a  func- 
tion applicable  to  a  numerous  class 
of  important  interests.  The  use  of 
land  and  buildings,  the  enjoyment 
of  water  rights,  the  practice  of 
many  trades  and  occupations,  and 
the  business  of  manufacturing  in 
particular  localities,  all  fall,  on  some 
occasions,  in  important  respects, 
within  its  sphere."  *  *  *  "The 
right  to  abate  public  nuisances, 
whether  we  regard  it  as  existing  in 
the  municipalities,  or  in  the  com- 
munity, or  in  the  hands  of  the  In- 
dividual, is  a  common-law  right,  and 


is  derived  in  every  instance  of  its 
exercise,  from  the  same  source — that 
of  necessity.  It  is  akin  to  the  right 
of  destroying  property  for  the  pub- 
lic safety  in  case  of  the  prevalence 
of  a  devastating  fire  or  other  con- 
trolling exigency.  But  the  necessity 
must  be  present  to  justify  the  exer- 
cise of  the  right,  and  whether  pres- 
ent or  not,  must  be  submitted  to  a 
jury  under  the  guidance  of  a  court. 
The  finding  of  a  sanitary  committee, 
or  of  a  municipal  council,  or  of  any 
other  body  of  a  similar  kind,  can 
have  no  effect  whatever,  for  any  pur- 
pose, upon  the  ultimate  disposition 
of  a  matter  of  this  kind." 

In  re  Jacobs,  98  N.  Y.  98;  People 
v.  Rosenberg,  138  N.  Y.  410;  Wilson 
v.  Phoenix  Mfg.  Co.,  40  W.  Va.  413; 
Town  of  Davis  v.  Davis,  40  W.  Va. 
464;  Huntington  &  K.  Land  Devel- 
opment Co.  v.  Phoenix  Mfg.  Co.,  40 
W.  Va.  711;  People  v.  Burtleson,  14 
Utah,  258.  One  who  uses  his  prop- 
erty so  as  to  annoy,  injure  or  en- 
danger the  comfort,  repose,  health 
or  safety  of  three  or  more  persons, 
though  he  does  so  in  conducting  a 
lawful  business  in  a  reasonable  and 
careful  manner  and  in  good  faith, 
commits  a  nuisance.  See,  also,  defi- 
nitions in  preceding  note. 


268 


POWERS. 


§  137 


or  use  of  property  is  a  nuisance,  without  regard,  as  the  cases 
hold,  to  its  nature,  situation  and  use.19* 


i»*  Ward  v.  City  of  Little  Rock,  41 
Ark.  526;  Gaines  v.  Waters,  64  Ark. 
609;  Town  of  Arkadelphia  v.  Clark, 
52  Ark.  23;  Ex  parte  Ah  Fook,  49 
Cal.  402;  Ex  parte  Fiske,  72  Cal. 
125;  In  re  Flaherty,  105  Cal.  558. 
In  Los  Angeles  County  v.  Spencer, 
126  Cal.  670,  Cal.  St.  1881,  p.  88,  as 
amended  by  St.  1889,  p.  413,  and 
1891,  pp.  260  and  268,  held  consti- 
tutional. The  power  granted  to  de- 
clare orchards  and  nurseries  nui- 
sances where  certain  pests  exist  not 
interfering  or  encroaching  upon  oth- 
er executive,  judicial  or  legislative 
functions  of  government. 

City  of  Denver  v.  Mullen,  7  Colo. 
345;  Darst  v.  People,  51  111.  286. 
The  declaration  that  all  intoxicating 
liquors  constitute  a  nuisance  held 
in  this  case  not  to  make  them  such 
without  judicial  determination. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  City 
of  Joliet,  79  111.  25.  See,  also,  Har- 
mon v.  City  of  Chicago,  110  111.  400; 
and  Moses  v.  U.  S.,  16  App.  D.  C. 
428;  Laugel  v.  City  of  Bushnell, 
197  111.  20;  Nazworthy  v.  City  of 
Sullivan,  55  111.  App.  48;  Village  of 
Des  Plaines  v.  Poyer,  123  111.  348; 
Everett  v.  City  of  Council  Bluffs, 
46  Iowa,  66;  Train  v.  Boston  Disin- 
fecting Co.,  144  Mass.  523;  City  of 
Newton  v.  Joyce,  166  Mass.  83; 
State  v.  Mott,  61  Md.  297;  Fieri  v. 
Town  of  Shieldsboro,  42  Miss.  493; 
Lake  v.  City  of  Aberdeen,  57  Miss. 
260;  Ex  parte  O'Leary,  65  Miss.  80; 
Liles  v.  Cawthorn,  78  Miss.  559. 

City  of  St.  Paul  v.  Gilfillan,  36 
Minn.  298.  The  charter  conferring 
power  upon  a  city  council  to  re- 
move or  abate  nuisances  was  held 
as  conferring  no  power  to  declare 


what  acts  or  omissions  constitute  a 
public  nuisance. 

New  Jersey  R.  &  Transp.  Co.  v. 
Jersey  City,  29  N.  J.  Law  (5  Dutch.) 
170;  Board  of  Health  of  Asbury 
Park  v.  Rosenthal,  67  N.  J.  Law, 
216,  50  Atl.  439;  Coast  Co.  v.  Bor- 
ough of  Spring  Lake,  56  N.  J.  Eq. 
615;  affirmed  58  N.  J.  Eq.  586;  Un- 
derwood v.  Green,  42  N.  Y.  140; 
Golden  v.  Health  Dept.  of  New  York, 
21  App.  Div.  420,  47  N.  Y.  Supp.  623. 
In  Griffin  v.  City  of  Gloversville,  67 
App.  Div.  403,  73  N.  Y.  Supp.  684, 
the  question  of  whether  a  particu- 
lar thing  is  a  common  nuisance  held 
to  be  one  for  judicial  determina- 
tion; the  declaration  by  city  ordi- 
nance that  it  is  such,  not  giving  it 
that  character. 

Grossman  v.  City  of  Oakland,  30 
Or.  478.  Ordinance  absolutely  pro- 
hibiting a  railroad  company  from 
fencing  its  tracks  in  the  platted  por- 
tion of  the  city,  and  declaring  such 
fence  a  nuisance,  is  void,  since  the 
city  cannot  assert  a  particular  use 
of  property  to  be  a  nuisance,  un- 
less such  use  comes  within  the  com- 
mon law  or  statutory  idea  of  a  nui- 
sance, or  is  so  in  fact. 

Com.  v.  Yost,  11  Pa.  Super.  Ct. 
323,  holds  that  a  board  of  health  has 
the  power  to  declare  and  abate  as  a 
nuisance  whatever  was  per  se  a  nui- 
sance at  common  law.  Miller  v. 
Burch,  32  Tex.  208;  Pye  v.  Peterson, 
45  Tex.  312;  Bittenhaus  v.  Johnston, 
92  Wis.  588.  See,  also,  McQuillin, 
Mun.  Ord.  §§  440-444;  Parker  &  W. 
Pub.  Health,  §§  177  et  seq.,  and 
Horr.  &  Bemis,  Mun.  Ord.  §§  250- 
255;  State  v.  Indianapolis  Union  R. 
Co.,  160  Ind.  45,  60  L.  R.  A.  831. 


§  137 


POLICE  POWER. 


269 


In  a  recent  case  in  the  supreme  court  of  the  United  States  ihn 
late  Justice  Miller  said:  "The  mere  declaration  by  the  cit. 
council  of  Milwaukee  that  a  certain  structure  was  an  encroach- 
ment or  obstruction  did  not  make  it  so,  nor  could  such  declara- 
tion make  it  a  nuisance  unless  it  in  fact  had  that  character.  It 
is  a  doctrine  not  to  be  tolerated  in  this  country,  that  a  municipal 
corporation,  without  any  general  laws  either  of  the  city  or  of 
the  state,  within  which  a  given  structure  can  be  shown  to  be  a 
nuisance,  can,  by  its  mere  declaration  that  it  is  one,  subject  it 
to  removal  by  any  person  supposed  to  be  aggrieved,  or  even  by 
the  city  itself.  This  would  place  every  house,  every  business, 
and  all  the  property  of  the  city,  at  the  uncontrolled  will  of  the 
temporary  local  authorities."195  The  use  of  care  in  the  doing  of 


Public  authorities  ordinarily  with- 
out legislative  authority  cannot  le- 
galize a  common  nuisance.  State  v. 
Luce,  9  Houst.  (Del.)  396;  Lewis  v. 
Alexander,  24  Can.  Sup.  Ct.  551. 
Some  cases,  however,  hold  contrary 
to  the  great  weight  of  authority 
that  city  officials  may  be  vested  with 
the  power  to  determine  and  abate 
nuisances.  See  Com.  v.  Yost,  11  Pa. 
Super.  Ct.  323;  Roberts  v.  Ogle,  30 
111.  459;  Block  v.  Town  of  Jackson- 
ville, 36  111.  301. 

North  Chicago  City  R.  Co.  v. 
Town  of  Lake  View,  105  111.  207. 
"In  doubtful  cases  where  a  thing 
may  or  may  not  be  a  nuisance  de- 
pending upon  a  variety  of  circum- 
stances requiring  judgment  and  dis- 
cretion on  the  part  of  the  town  au- 
thorities in  exercising  their  legisla- 
tive functions  under  a  general  dele- 
gation of  power  like  the  one  we  are 
considering,  their  action  under  such 
circumstances  would  be  conclusive 
of  the  question."  City  of  St.  Louis 
v.  Stern,  3  Mo.  App.  48;  Green  v. 
Lake,  60  Miss.  451. 

i»5  Yates  v.  City  of  Milwaukee,  77 
U.  S.  (10  Wall.)  497,  505.  See,  also, 


Lawton  v.  Steele,  119  N.  Y.  233, 
where  the  court  say:  "The  statute 
declares  and  defines  a  new  species 
of  public  nuisance,  not  known  to 
the  common  law,  nor  declared  to  be 
such  by  any  prior  statute.  But  we 
know  of  no  limitation  of  legislative 
power  which  precludes  the  legisla- 
ture from  enlarging  the  category  of 
public  nuisances,  or  from  declaring 
places  or  property  used  to  the  detri- 
ment of  public  interests  or  to  the  in- 
jury of  the  health,  morals  or  wel- 
fare of  the  community,  public  nui- 
sances, although  not  such  at  com- 
mon law.  There  are,  of  course,  lim- 
itations upon  the  exercise  of  this 
power.  The  legislature  cannot  use 
it  as  a  cover  for  withdrawing  prop- 
erty from  the  protection  of  the  law, 
or  arbitrarily,  where  no  public  right 
or  interest  is  involved,  declare  prop- 
erty a  nuisance  for  the  purpose  of 
devoting  it  to  destruction.  If  the 
court  can  judicially  see  that  the 
statute  is  a  mere  evasion,  or  was 
framed  for  the  purpose  of  individ- 
ual oppression,  it  will  set  it  aside 
as  unconstitutional,  but  not  other- 
wise." 


270 


POWERS. 


137 


an  act  is  not  a  question  ordinarily  involved  in  a  determination 
of  its  character  as  a  nuisance.  As  said  by  a  writer  on  this  sub- 
ject, "It  is  merely  a  question  of  results."196 

In  the  notes  will  be  found  many  cases  classified  and  chrono- 
logically arranged,  illustrating  the  application  of  controlling 
principles  to  individual  cases.197  The  grant  to  a  municipal  cor- 


i9«Cahill  v.  Eastman,  18  Minn. 
324  (Gil.  292);  Tremain  v.  Cohoes 
Co.,  2  N.  Y.  (2  Comst.)  162;  Wood, 
Nuisances,  §  27.  "The  question  of 
care  is  not  an  element  in  this  class 
of  wrongs;  it  is  merely  a  question 
of  results,  and  the  fact  that  inju- 
rious results  proceed  from  the  busi- 
ness under  such  circumstances 
would  have  a  tendency  to  show  the 
business  a  nuisance  per  se  rather 
than  to  operate  as  an  excuse  or  de- 
fense, and  the  courts  would  feel 
compelled  to  say  that,  under  such 
circumstances,  the  business  is  intol- 
erable, except  so  far  removed,  from 
residences  and  places  of  business  as 
to  be  beyond  the  power  of  visiting 
its  ill  results  upon  individuals  or 
the  public." 

197  Ordinances  prohibiting  the  run- 
ning at  large  of  domestic  animals. 
Brophy  v.  Hyatt,  10  Colo.  223;  City 
of  Quincy  v.  O'Brien,  24  111.  App. 
591;  Cochrane  v.  City  of  Frostburg, 
81  Md.  54;  Com.  v.  Chase,  60  Mass. 
(6  Gush.)  248;  Grover  v.  Huckins, 

26  Mich.    476;     Perry    v.    Chatham 
County  Com'rs,  130  N.  C.  558,  41  S. 
E.    787;    Crosby  v.  Warren,  1  Rich. 
Law    (S.  C.)    385;    Moore  v.    State, 
79  Tenn.  (11  Lea)  35;  City  of  Waco 
T.  Powell,  32  Tex.  258;  Washington 
Corp.  v.  Lynch,  5  Cranch,  C.  C.  498, 
Fed.  Gas.  No.  17,231. 

Ordinances  relative  to  the  running 
at  large  of  dogs.  Washington  Corp. 
v.  Lynch,  5  Cranch,  C.  C.  498,  Fed. 
Cas.  No.  17,231;  Haller  v.  Sheridan, 

27  Ind.  494;   Com.  v.  Dow,  51  Mass. 


(10  Mete.)  383;  Com.  v.  Chase,  60 
Mass.  (6  Gush.)  248;  City  of  Fari- 
bault  v.  Wilson,  34  Minn.  254;  City 
of  Carthage  v.  Rhodes,  101  Mo.  175. 
But  see  City  of  Washington  v. 
Meigs,  1  MacArthur  (D.  C.)  53, 
where  it  is  held  that  an  ordinance 
which  punishes  by  fine  or  imprison- 
ment the  keeping  of  dogs  without 
the  payment  of  the  license  required 
is  invalid. 

The  keeping  and  use  of  animals 
for  certain  purposes  regarded  as  a 
public  nuisance:  Gibson  v.  Town 
of  Harrison,  69  Ark.  385, — an  ordi- 
nance regulating  keeping  of  dogs 
held  valid;  Ex  parte  Foote,  70  Ark. 
12,  65  S.  W.  706;  In  re  Linehan,  72 
Cal.  114, — an  ordinance  prohibiting 
the  keeping  of  more  than  two  cows 
within  certain  parts  of  the  city  of 
San  Francisco,  valid;  Hoops  v. 
"Village  of  Ipava,  55  III.  App.  94; 
Walker  v.  Towle,  156  Ind.  639,— an 
ordinance  providing  for  the  muz- 
zling of  dogs,  valid;  State  v.  Hoi- 
comb,  68  Iowa,  107, — an  ordinance 
prohibiting  the  maintenance  of  hog 
pens  held  not  unreasonable  in  city 
of  15,000  people. 

City  of  Burlington  v.  Stockwell, 
5  Kan.  App.  569,  47  Pac.  988,  the 
fact  that  pig  pens  were  kept  as 
clean  as  they  could  be  under  the  cir- 
cumstances constituted  no  defense 
when  evidence  proved  that  the 
stench  therefrom  was  a  public  nui- 
sance. 

City  of  Washington  v.  Meigs,  1 
MacArthur  (D.  C.)  53.  In  the  ab- 


137 


POLICE  POWER. 


271 


poration  to  control  or  regulate  a  nuisance,  or  the  general  grant 
of  the  right  to  exercise  the  police  power,  it  seems  to  be  quite 
generally  held,  does  not  carry  with  it  the  power  to  totally  sup- 


sence  of  a  stated  law  declaring  the 
keeping  of  dogs  an  abatable  nui- 
sance, their  simple  ownership  could 
not  be  punished  as  an  offense  under 
the  general  implied  powers  of  a  city 
to  prescribe  police  regulations. 

State  v.  Mahner,  43  La.  Ann.  496; 
City  of  Hagerstown  v.  Witmer,  86 
Md.  293.  An  ordinance  prohibiting 
dogs  from  running  at  large  held 
good  under  general  authority  to 
abate  nuisances.  In  Com.  v.  Young, 
135  Mass.  526,  the  power  of  a  board 
of  health  to  interfere  with  the  "em- 
ployment" of  one  keeping  one  hun- 
dred and  fifty  swine,  considered. 
State  v.  Boll,  59  Mo.  321;  Board  of 
Health  of  Raritan  Tp.  v.  Henzler 
(N.  J.  Eq.)  41  Atl.  228.  In  Fox  v. 
Mohawk  &  H.  R.  Humane  Soc.,  165 
N.  Y.  517,  59  N.  E.  353,  Laws  New 
York,  1896,  c.  448,  authorizing  the 
humane  society  to  dispose  of  un- 
licensed dogs  held  not  unconstitu- 
tional, the  killing  of  such  dogs  with- 
out notice  to  the  owner  not  consid- 
ered as  the  taking  of  property  with- 
out due  process  of  law,  the  court 
holding  that  there  can  be  EO  prop- 
erty in  dogs  as  against  the  police 
power  of  the  state.  Ex  parte  Robin- 
son, 30  Tex.  App.  493.  See,  also, 
McQuillin  Mun.  Ord.  §§  449-451,  with 
cases  cited  relative  to  the  estab- 
lishment and  maintenance  of  dai- 
ries and  cow  stables  and  the  keeping 
of  livery  stables,  hogs  and  hog  pens. 

The  doing  of  certain  acts  regard- 
ed as  a  nuisance:  Johnson  v.  Bal- 
timore &  P.  R.  Co.,  4  App.  D.  C. 
491.  Unlawful  occupation  of  a  pub- 
lic thoroughfare  a  public  nuisance 
to  be  abated  by  public  authorities. 


Moses  v.  U.  S.,  16  App.  D.  C.  428. 
Act  of  Cong.  Feb.  2d,  1899  (30  Stat. 
812),  declaring  the  emission  of 
dense  black  smoke  or  cinders  from 
any  smoke  stack  or  chimney  a  pub- 
lic nuisance,  not  unconstitutional. 
The  court  also  held  that  no  discrim- 
ination was  made  through  its  sole 
application  to  "any  stationary  en- 
gine, steam  boiler  or  furnace." 

Ex  parte  Casinello,  62  Cal.  538. 
Throwing  garbage  into  the  public 
streets,  a  nuisance. 

People  v.  Truckee  Lumber  Co.,  116 
Cal.  397.  The  placing  of  deleterious 
refuse  in  a  stream,  thereby  poison- 
ing the  waters  and  killing  fish,  are 
acts  constituting  a  public  nuisance. 

Ex  parte  Knapp,  127  Cal.  101. 
The  transportation  of  game  from  one 
county  to  another  cannot  be  inter- 
fered with.  The  weight  of  authority 
seems  to  be  contrary  to  this  hold- 
ing, however. 

May  v.  People,  1  Colo.  App.  157. 
To  prohibit  storing  hides  within  a 
city  without  permission  from  the 
city  council  is  not  within  the  pow- 
ers conferred  on  municipal  authori- 
ties to  declare  what  shall  be  a  nui- 
sance and  to  abate  the  same.  In 
Northwestern  Fertilizing  Co.  v.  Vil- 
lage of  Hyde  Park,  70  111.  634,  the 
license  to  manufacture  granted  by 
town  authorities  to  a  fertilizing  com- 
pany held  not  a  continuing  right  but 
only  a  police  regulation  under  which 
the  company  could  claim  no  privi- 
leges. 

North  Chicago  City  R.  Co.  v.  Town 
of  Lake  View,  105  111.  207.  The  run- 
ning of  street  cars  by  steam  de- 
clared a  nuisance. 


272 


POWERS. 


§    137 


press  a  nuisance.  Other  limitations  and  restrictions  upon  the 
power  of  municipal  authorities  to  control,  regulate  or  abate  nui- 
sances, will  be  found  in  the  constitutional  restrictions  and  lim- 


In  State  v.  Heidenhain,  42  La. 
Ann.  483.  Smoking  in  street  cars 
not  permitted. 

Boehm  v.  City  of  Baltimore,  61  Md. 
259;  People  v.  Lewis,  86  Mich.  273. 
Smoke  ordinance  exempting  dwell- 
ing houses  and  steamboats  from  its 
operation  is  not  invalid  as  unrea- 
sonable discrimination  between 
classes. 

City  of  Grand  Rapids  v.  De  Vries, 
123  Mich.  570.  Garbage  ordinance 
is  reasonable  and  valid,  since  refuse 
accumulations  of  themselves  might 
be  legally  regarded  as  nuisances. 

City  of  St.  Paul  v.  Gilfillan,  36 
Minn.  298.  Ordinance  No.  618,  as 
passed  by  the  city  council  of  St. 
Paul,  Minnesota,  void,  the  ordinance 
declaring  the  emission  of  dense 
smoke  from  smoke  stacks  a  public 
nuisance.  The  court  held  that  the 
question  of  whether  such  act  was  a 
nuisance  depended  upon  the  facts 
in  the  case. 

City  of  St.  Louis  v.  Edward 
Heitzeberg  Packing  &  Provision  Co., 
141  Mo.  375.  The  court  here  fol- 
lowed the  doctrine  announced  in 
City  of  St.  Paul  v.  Gilfillan,  and 
held  that  a  city  has  no  power  to  de- 
clare the  emission  into  the  open  air 
of  dense  black  or  thick  gray  smoke 
a  nuisance  under  a  charter  giving 
it  the  power  to  "declare,  prevent  and 
abate  nuisances." 

Sigler  v.  City  of  Cleveland,  3  Ohio, 
N.  P.  119.  City  has  no  power  to 
prohibit  the  emission  of  dense 
smoke  unless  it  causes  an  injury  or 
constitutes  a  nuisance. 

New  Jersey  R.  &  Transp.  Co.  v. 
Jersey  City,  29  N.  J.  Law  (5  Dutch) 


170;  People  v.  Cunningham,  1  Denio 
(N.  Y.)  524.  The  delivery  of  slops 
by  a  distillery  to  carts  and  wagons 
in  a  public  street  held  a  public  nui- 
sance and  abatable. 

Gould  v.  City  of  Rochester,  105  N. 
Y.  46.  Discharge  of  sewage  by  a 
city  is  a  public  nuisance  and  abat- 
able by  the  town  injured. 

In  People  v.  Garabed,  20  Misc.  127, 
45  N.  Y.  Supp.  827.  An  ordinance 
prohibiting  the  beating  of  drums 
and  tambourines  in  the  street  with- 
out the  permission  of  the  president 
of  the  village  held  valid.  In  People 
v.  City  of  Rochester,  44  Hun  (N. 
Y.)  166,  a  singing  "Salvation  Army" 
procession  held  not  a  nuisance. 

City  of  Philadelphia  v.  Braben- 
der,  201  Pa.  574.  An  ordinance  pro- 
hibiting the  casting  of  advertise- 
ments into  vestibules  of  dwelling 
houses  is  valid,  though  newspapers 
and  addressed  envelopes  are  except- 
ed  from  its  operation. 

Thompson  v.  Kimbrough,  23  Tex. 
Civ.  App.  350.  A  pest  house  estab- 
lished within  192  feet  of  a  public 
school  is  a  nuisance  and  abatable  as 
such. 

Kuehn  v.  City  of  Milwaukee,  92 
Wis.  263.  The  dumping  of  garbage 
of  a  city  into  one  of  the  Great  Lakes, 
fifteen  miles  from  shore  is  not  prima 
facie  a  nuisance. 

City  of  Centerville  v.  Miller,  57 
Iowa,  56.  Keeping  of  a  house  where 
loud  and  unusual  noises  are  permit- 
ted, held  a  nuisance. 

Use  of  property:  Town  of  Lake 
View  v.  Letz,  44  111.  81;  Gilbert  T. 
Showerman,  23  Mich.  448.  In  this 
case  carrying  on  a  steam  flouring 


§  137 


POLICE  POWER. 


273 


itations  constantly  referred  to  in  the  preceding  sections  discuss- 
ing a  valid  exercise  of  the  police  power.  It  is  not  necessary  to 
repeat  them.  The  application  of  the  principle  seems  to  be  that 
individual  members  of  society  possess  the  natural  right  to  use 


mill  in  the  proper  manner  was  not 
restrained,  the  court  basing  its  de- 
cision among  other  reasons,  upon  the 
principle,  as  stated  in  the  text,  that 
it  was  not  every  act  of  an  individual 
or  use  of  property  that  constituted 
it  a  nuisance,  or  even  the  declara- 
tion of  a  legislative  body  to  that  ef- 
fect, irrespective  of  its  nature,  situa- 
tion or  use,  the  flouring  mill  in  the 
case  before  the  court  being  in  the 
proper  business  portion  of  the  city. 
City  of  Red  Wing  v.  Guptil,  72  Minn. 
259. 

In  City  of  St.  Louis  v.  Russell, 
116  Mo.  248,  the  use  of  buildings  as 
livery  and  sales  stables  declared  not 
a  nuisance  per  se.  The  main  ques- 
tion involved  was  the  right  of  the 
city  to  delegate  its  power  in  this  re- 
spect to  one-halt  the  owners  of  prop- 
erty in  the  block  where  the  livery 
stable  was  proposed  to  be  located. 
Gundlach  v.  Hamm,  62  Minn.  42; 
Board  of  Health  v.  Jersey  City,  55 
N.  J.  Eq.  116;  Beetz  v.  City  of 
Brooklyn,  10  App.  Div.  (N.  Y.)  382. 
State  v.  Ray,  131  N.  C.  814,  60  L.  R. 
A.  634.  Ordinance  closing  stores  at 
7:30  P.  M.  held  invalid.  Harrington 
v.  Board  of  Aldermen  of  Providence, 
20  R.  I.  233;  Miller  v.  Burch,  32 
Tex.  208. 

Employments:  Town  of  Arkadel- 
phia  v.  Clark,  52  Ark.  23;  City  of  St. 
Louis  v.  Robinson,  135  Mo.  460. 
Garbage  ordinance  construed. 

City  of  Kansas  v.  McAleer,  31  Mo. 
App.  433.  Under  a  charter  giving 
the  city  council  power  by  ordinance 
to  define  what  shall  be  a  nuisance 
and  to  prevent  or  abate  them,  it  has 


the  power  to  declare  a  rock  crushing 
machine  a  nuisance  and  provide  for 
its  abatement. 

Tanner  v.  Trustees  of  Albion,  5 
Hill  (N.  Y.)  121.  Bowling  alley  de- 
clared a  nuisance.  Coe  v.  Schultz, 
47  Barb.  (N.  Y.)  64.  The  manufac- 
ture of  a  preparation  of  lime  held 
a  public  nuisance.  Laugel  v.  City 
of  Bushnell,  96  111.  App.  618.  City 
and  village  authorities  may  lawfully 
adopt  ordinances  declaring  places 
where  hop  ale  is  kept  for  sale  nui- 
sances. 

Condition  of  property:  City  Coun- 
cil of  Montgomery  v.  Hutchinson, 
13  Ala.  573.  Burden  on  plaintiff  to 
prove  that  building  taken .  down  by 
city  was  not  a  nuisance.  In  Grove  v. 
City  of  Ft.  Wayne,  45  Ind.  429,  pro- 
jecting corners  held  a  nuisance  and 
dangerous.  Allison  v.  City  of  Rich- 
mond, 51  Mo.  App.  133.  In  the  ab- 
sence of  established  fire  limits,  mu- 
nicipal authorities  have  no  power  to 
declare  as  a  nuisance  and  destroy  an 
old  frame  building  filled  with  inflam- 
mable rubbish,  but  only  authority 
to  suppress  its  use  for  that  purpose. 

Green  v.  Lake,  60  Miss.  451;  Vil- 
lage of  Hempstead  v.  Ball  Elec. 
Light  Co.,  9  App.  Div.  48,  41  N.  Y. 
Supp.  124.  Poles,  wires  and  lamps 
no  longer  used  for  the  purpose  of 
lighting  declared  an  abatable  nui- 
sance. Eckhardt  v.  City  of  Buffalo, 
19  App.  Div.  (N.  Y.)  1;  Theilan  v. 
Porter,  82  Tenn.  (14  Lea)  622.  Bris- 
tol Door  &  Lumber  Co.  v.  City  of 
Bristol,  97  Va.  304,  holds  where  ft 
building  is  a  nuisance  only  because 
of  the  use  10  which  It  is  devoted. 


Abb.  Corp.— 18. 


274 


POWERS. 


§   137 


their  property  and  conduct  themselves  as  they  see  fit,  limited  and 
controlled  only  by  the  power  of  the  state  to  determine  in  its  dis- 
cretion whether  such  use  of  property  or  individual  acts  results 
or  may  result  in  an  injury  to  the  public  good.  As  said,  this 


the  building  itself  cannot  be  pulled 
down,  but  only  the  wrongful  use 
stopped. 

The  general  condition  of  streets, 
highways  or  lands  as  affecting  pub- 
lic health:  State  v.  Payssan,  47  La. 
Ann.  1029;  Baker  v.  City  of  Boston, 
29  Mass.  (12  Pick.)  184;  City  of 
Cambridge  v.  Munroe,  126  Mass. 
496;  Rodwell  v.  City  of  Newark,  34 
N.  J.  Law,  264.  The  power  confer- 
red to  direct  the  draining  and  filling 
up  of  city  lots  whenever  such  drain- 
ing shall  be  necessary  to  prevent  or 
abate  a  public  nuisance  is  to  be  ex- 
ercised reasonably. 

Coast  Co.  v.  Borough  of  Spring 
Lake,  56  N.  J.  Eq.  615.  The  mere 
erection  of  a  building  upon  public 
land  does  not  constitute  it  an  abat- 
able nuisance.  New  Jersey  R.  & 
Transp.  Co.  v.  Jersey  City,  29  N.  J. 
Law  (5  Dutch.)  170. 

Babcock  v.  City  of  Buffalo,  56  N. 
Y.  268.  A  slip  or  canal,  a  public 
highway,  which  became  unwhole- 
some by  reason  of  stagnant  water 
and  filth  was  held  not  abatable  as 
a  public  nuisance.  Chambers'  Adm'r 
v.  Ohio  Life  Ins.  &  Trust  Co.,  1  Disn. 
(Ohio)  327. 

City  of  Charleston  v.  Werner,  38 
S.  C.  488.  The  filling  of  a  low  lot 
declared  a  public  nuisance  by  the 
board  of  health,  held  legal. 

Regulation  of  business:  State  v. 
Mott,  61  Md.  297.  Municipal  au- 
thorities have  no  power  to  prohibit 
the  operation  of  lime  kilns  within 
the  city  limits.  Lake  v.  City  of 
Aberdeen,  57  Miss.  260;  People  v. 
Board  of  Health  of  New  York,  33 


Barb.  (N.  Y.)  344;  Schuster  v.  Met- 
ropolitan Board  of  Health,  49  Barb. 
(N.  Y.)  450. 

Miscellaneous:  Haskell  v.  City  of 
New  Bedford,  108  Mass.  208.  Mu- 
nicipal authorities  have  no  right,  in 
the  construction  of  any  public  im- 
provement such  as  a  system  of 
drainage  or  sewage,  to  create  a  nui- 
sance either  upon  private  or  public 
property. 

Waters  v.  Townsend,  65  Ark.  613. 
A  house  infected  with  smallpox  may 
be  abated  as  a  nuisance  injurious 
to  the  public  health.  Ward  v.  City 
of  Little  Rock,  41  Ark.  526.  A  city 
cannot  enjoin  as  a  nuisance  the 
working  of  convicts  on  its  streets, 
since  it  cannot  condemn  or  abate  as 
such  any  act  which  in  itself  does  not 
come  within  the  legal  notion  of  a 
nuisance.  Harmon  v.  City  of  Chi- 
cago, 110  111.  400;  City  of  Denver  v. 
Mullen,  7  Colo.  345. 

Poyer  v.  Village  of  Des  Plaines, 
18  111.  App.  225;  aflirmed  in  123  111. 
348.  An  ordinance  declaring  "all 
public  picnics  and  open-air  dances" 
within  its  limits  to  be  a  nuisance, 
held  void;  the  question  whether  they 
are  so  conducted  as  to  become  a 
nuisance  being  one  of  fact,  not  of 
law. 

Northwestern  Fertilizing  Co.  v. 
Village  of  Hyde  Park,  70  111.  634; 
Everett  v.  City  of  Council  Bluffs,  46 
Iowa,  66.  Trees  growing  in  a  street 
or  highway  do  not  constitute  a  nui- 
sance unless  they  make  an  obstruc- 
tion to  travel. 

Municipality  No.  1  v.  Wilson.  5 
La.  Ann.  747;  Green  v.  Lake.  60 


§  137 


POLICE  POWER. 


275 


is  an  inherent  and  discretionary  power  on  the  part  of  the  state 
but  still  controlled  by  the  great  underlying  principle  of  law  that 
property,  personal  or  vested  rights  cannot  be  confiscated  nor  ar- 
bitrarily destroyed.  The  act  of  the  sovereign  must  have  for  its 
real  and  legitimate  end  and  aim  the  accomplishment  of  a  govern- 
mental power,  and  this  must  be  done  by  agencies  which  are  uni- 
form, definite  and  certain  in  their  operation  and  application.198 


Miss.  451;  City  of  Kansas  v.  Mc- 
Aleer,  31  Mo.  App.  433;  New  Jersey 
R.  &  Transp.  Co.  y.  Jersey  City, 
29  N.  J.  Law  (5  Dutcn.)  170;  Nicou- 
lin  v.  Lowery,  49  N.  J.  Law,  391; 
City  of  Rochester  v.  Simpson,  57 
Hun  (N.  Y.)  36;  Grossman  v.  City 
of  Oakland,  30  Or.  478;  Town  of 
Davis  v.  Davis,  40  W.  Va.  464. 

i»8  California  Reduction  Co.  v.  San- 
itary Reduction  Works  (C.  C.  A.)  126 
Fed.  29.  The  question  of  the  power 
of  a  municipal  corporation  to  grant 
an  exclusive  privilege  for  the  collec- 
tion of  city  garbage  fully  discussed 
and  many  authorities  cited.  The  court 
holds  such  contract  or  privilege  val- 
id. In  discussing  the  police  power 
the  court  say:  "It  must  be  admit- 
ted that  the  power  of  the  legislature 
or  municipality  under  what  is  com- 
monly designated  as  the  'police  pow- 
er of  the  state,'  is  not  absolute.  It 
does  not  necessarily  follow  that  ev- 
ery statute  which  may  be  enacted 
by  the  legislature,  or  order  passed 
by  a  municipality,  ostensibly  for 
the  purpose  of  preserving  the  public 
health,  protecting  the  public  morals, 
and  guarding  the  public  safety,  is 
always  to  be  accepted  as  a  legitimate 
exercise  of  the  police  power  of  a 
state.  Neither  the  legislature  nor 
municipality  can,  under  the  guise 
of  police  regulations,  arbitrarily  in- 
vade private  property  or  personal 
rights;  and  when  such  regulations 
are  called  in  question  the  test  should 
be  whether  they  have  some  relation 


to  the  public  health  or  public  safety, 
and  whether  such  is,  in  fact,  the 
end  sought  to  be  attained.  The 
means  used  must  be  such  as  are  rea- 
sonably necessary  for  the  accom- 
plishment of  the  purpose,  and  must 
not  be  unduly  oppressive  upon  indi- 
viduals or  the  public.  Every  act, 
order  or  ordinance  is  subject  to  re- 
view by  the  courts,  and,  if  the  pow- 
er granted  by  the  constitution  is  ex- 
ceeded by  the  legislature  or  munici- 
pality, it  is  the  duty  of  the  courts 
to  declare  such  act,  order,  or  ordi- 
nance invalid.  Under  the  guise  of 
protecting  the  public  interests,  nei- 
ther the  legislature  nor  the  munici- 
pality can  arbitrarily  interfere  with 
private  business  or  impose  unusual 
and  unnecessary  restrictions  upon 
lawful  business  and  occupations. 
The  police  powei  cannot  be  used  as 
a  shield  for  all  the  ills  that  legis- 
lation is  heir  to,  but  it  must  be 
recognized  that  the  power  and  pur- 
poses of  laws  of  this  character  are 
necessarily  very  broad  and  far- 
reaching,  and,  if  the  power  granted 
does  not  exceed  the  limits  of  the 
constitution,  and  clearly  comes  with- 
in the  legitimate  exercise  of  the  po- 
lice power,  it  should  be  sustained. 
*  *  *  One  thing,  however,  is  cer- 
tain, that  everything  which,  from 
its  nature,  and  surroundings,  is,  or 
is  liable  to  become,  a  menace  to  the 
public  health  or  public  safety,  Is  a 
proper  subject  to  be  dealt  with  un- 
der the  police  power  of  a  state. 


276 


POWERS. 


§  138 


§  138.    Nuisances;  their  abatement  and  removal. 

It  is  scarcely  necessary  to  say  that  since  public  authorities  pos- 
sess the  power  in  some  instances  to  declare  what  are  public  nui- 
sances, and  in  all  cases  the  power  to  remove  or  abate  them,  upon 
an  official  or  judicial  declaration  of  their  character  as  such,  they 
have  the  power  to  abate  and  remove  all  conditions  or  acts  which 
in  their  nature,  situation  or  use  are  public  nuisances.199  The 


This  case  comes  within  that  class. 
The  power  to  make  the  law  neces- 
sarily carries  with  it  the  power  to 
judge  of  its  necessity,  expediency, 
and  justice,  and,  primarily  at  least, 
of  the  reasonableness  of  the  means 
and  methods  used  to  accomplish  the 
end  sought  to  be  obtained.  Courts 
have  nothing  to  do  with  the  wis- 
dom, policy  or  expediency  of  the 
law.  The  courts  are  only  authorized 
to  deal  with  the  question  of  the  pow- 
er of  the  legislature  or  municipality 
to  pass  the  laws  or  orders  in  ques- 
tion, and  determine  whether  they 
are  valid,  and,  if  so,  to  construe 
their  provisions.  There  their  duty 
ends.  These  general  principles  are 
axiomatic  in  the  jurisprudence  of 
this  country." 

199  United  States  v.  Holly,  3 
Cranch,  C.  C.  656,  Fed.  Gas.  No. 
15,381;  Schoen  v.  City  of  Atlanta, 
97  Ga.  697;  Baumgartner  v.  Hasty, 
100  Ind.  575;  Walker  v.  Jameson, 
140  Ind.  591.  Power  to  compel  the 
deposit  of  garbage  in  certain  desig- 
nated places  and  its  collection  by 
the  city's  licensed  agent  held  not 
a  confiscation  of  property.  See,  also, 
California  Reduction  Co.  v.  Sanitary 
Reduction  Works  (C.  C.  A.)  126 
Fed.  29;  City  of  Waverly  v.  Page, 
105  Iowa,  225. 

In  Knauer  v.  City  of  Louisville, 
20  Ky.  L.  R.  194,  45  S.  W.  510.  Ex- 
cessive fees  allowed  those  removing 
dead  animals  held  unauthorized; 


and  in  Meyer  v.  Jones,  20  Ky.  L.  R. 
1632,  49  S.  W.  809,  the  same  de- 
cision is  made  with  the  qualification 
that  if  the  ordinance  gave  the  own- 
er of  a  dead  animal  the  right  to 
remove  it  within  a  prescribed  time, 
the  objectionable  features  would  be 
eliminated.  See,  also,  to  same  ef- 
fect, State  v.  Morris,  47  La.  Ann. 
1660;  Sawyer  v.  State  Board  of 
Health,  125  Mass.  182;  Com.  v.  Cut- 
ter, 156  Mass.  52;  Stone  v.  Heath, 
179  Mass.  385;  Sprigg  v.  Town  of 
Garrett  Park,  89  Md.  406;  Wreford 
v.  People,  14  Mich.  41;  City  of 
Grand  Rapids  v.  De  Vries,  123  Mich. 
570;  City  of  Red  Wing  v.  Guptil, 
72  Minn.  259;  City  of  St.  Louis  v. 
Edward  Heitzeberg  Packing  &  Pro- 
vision Co.,  141  Mo.  375. 

Coast  Co.  v.  Borough  of  Spring 
Lake,  56  N.  J.  Eq.  615.  Municipal- 
ity as  representative  of  the  public 
has  the  right  to  sue  for  abatement 
•of  nuisance  on  public  property. 
Hart  v.  City  of  Albany,  9  Wend. 
(N.  Y.)  571;  Meeker  v.  Van  Rens- 
selaer,  15  Wend.  (N.  Y.)  397;  Town 
of  Newton  v.  Lyons,  11  App.  Div. 
105,  42  N.  Y.  Supp.  241;  Smith  v. 
Irish,  37  App.  Div.  220,  55  N.  Y. 
Supp.  837;  Cartwright  v.  City  of 
Cohoes,  39  App.  Div.  69,  56  N.  Y. 
Supp.  731. 

Underwood  v.  Green,  42  N.  Y.  140. 
A  dead  animal  is  not  per  se  a  nui- 
sance or  necessarily  dangerous  to 
public  health.  An  ordinance  direct- 


8  138 


POLICE  POWER. 


277 


manner  in  which  nuisances  may  be  removed  or  abated  depends 
largely  upon  charter  and  statutory  provisions.  Corporate  char- 
ters usually  contain  in  detail,  provisions  controlling  the  manner 
in  which  they  may  exercise  powers  granted.  The  doctrine,  as 
already  stated,  is  well  settled  that  municipal  authorities  cannot, 
arbitrarily,  declare  an  act  or  thing  a  nuisance  and  remove  and 
abate  the  same  until  there  has  been  a  judicial  adjudication  of 


ing  the  removal  of  "dead  animals" 
held  not  capable  of  enforcement  if 
literally  construed,  otherwise  dead 
animals  provided  for  food  could  be 
lawfully  removed  as  nuisances  or 
detrimental  to  the  public  health. 

Eckhardt  v.  City  of  Buffalo,  19 
App.  Div.  1,  46  N.  Y.  Supp.  204.  Here 
the  right  to  abate  a  nuisance  is  held 
as  limited  to  the  removal  of  that  in 
which  the  nuisance  consists.  The 
right  is  derived  from  and  based  up- 
on necessity. 

Wood  v.  City  of  Hinton,  47  W.  Va. 
645.  The  principle  that  the  public 
authorities  cannot  bargain  or  grant 
away  the  right  to  exercise  the  police 
power,  followed.  Permission  from 
a  council  to  run  an  engine  can 
not  become  a  vested  or  continuing 
right  such  as  to  prevent  the  council 
from  modifying  the  permit  or  for- 
bidding the  use  of  the  engine  after  it 
becomes  a  nuisance.  City  of  Marsh- 
field  v.  Wisconsin  Tel.  Co.,  102  Wis. 
€04.  A  city  is  held  in  Her  v.  Ross, 
64  Neb.  710,  57  L.  R.  A.  895,  to  have 
no  right  to  grant,  by  contract,  a 
monopoly  to  one  individual  to  enter 
upon  the  private  premises  of  the  in- 
habitants of  the  city  and,  at  their 
expense,  collect  and  remove  innox- 
ious substances,  like  ashes,  cinders 
and  other  things  not  in  themselves 
nuisances,  though,  which  if  allowed 
to  accumulate,  would  become  such. 
Soon  King  v.  Crowley,  113  U.  S.  703; 
King  v.  Davenport,  98  111.  305;  Ken- 
nedy v.  Phelps,  10  La.  Ann.  227;  New 


Orleans  Gas  Light  Co.  v.  Hart,  40  La. 
Ann.  474;  State  v.  Heidenhain,  42 
La.  Ann.  483;  Com.  v.  Thompson, 
53  Mass.  (12  Mete.)  231,— smoking 
on  streets.  Carleton  v.  Rugg,  149 
Mass.  550;  Hart  v.  City  of  Albany, 
9  Wend.  (N.  Y.)  571;  Lawton  v. 
Steele,  119  N.  Y.  226;  Village  of 
Carthage  v.  Frederick,  122  N.  Y. 
268;  City  of  Charleston  v.  Werner, 
38  S.  C.  488;  Theilan  v.  Porter,  82 
Tenn.  (14  Lea)  622.  See,  also,  Bush 
v.  City  of  Dubuque,  69  Iowa,  233.  In 
some  jurisdictions,  however,  it  is 
held,  either  pursuant  to  statutory 
provision  or  rule  of  law,  that  before 
property  constituting  a  nuisance  can 
be  removed  as  such,  notice  must  be 
given  to  the  owner  or  party  inter- 
ested in  the  same  and  an  opportu- 
nity given  to  defend  the  charge. 
Amyx  v.  Taber,  23  Cal.  370;  Hart- 
man  v.  City  of  Wilmington,  1  Marv. 
(Del.)  215,  41  Atl.  74,  holds  such 
notice  unnecessary  where  the  party 
interested  has  his  remedy  by  injunc- 
tion or  a  personal  liability  against 
the  members  of  the  offending  board; 
Roberts  v.  Ogle,  30  111.  459;  Cham- 
berlain v.  City  of  Litchfield,  56  111. 
App.  652;  Ward  v.  City  of  Murphys- 
boro,  77  111.  App.  549;  Gosselink  v. 
Campbell,  4  Iowa,  296;  Com.  v.  Bean, 
80  Mass.  (14  Gray)  52;  Com.  v. 
Curtis,  91  Mass.  (9  Allen)  266; 
Watuppa  Reservoir  Co.  v.  Macken- 
zie, 132  Mass.  71;  Hall  v.  Staples, 
166  Mass.  399;  People  v.  Bennett, 
83  Mich.  457, — no  notice  to  remove 


273 


POWERS. 


138 


this  fact.200  But  this  doctrine  may  not  apply  where  the  objec- 
tionable thing  or  act  is  unquestionably  a  nuisance  per  se.  Mu- 
nicipal authorities  in  such  cases  would  clearly  have  the  right  to 
remove  or  abate  the  nuisance  limited  only  by  the  purpose  of 
their  organization,  namely,  the  public  health,  welfare  and  safe- 
ty.201 Where  the  legislature  has  granted  the  public  authorities 


held  necessary;  Chase  v.  Middleton, 
123  Mich.  647;  City  of  St.  Paul  v. 
Clark,  84  Minn.  138;  Hellen  v.  Noe, 
25  N.  C.  (3  Ired.)  493;  Rose  v. 
Hardie,  98  N.  C.  44;  State  v.  Tweedy, 
115  N.  C.  704;  Heath  v.  Hall  (Tex. 
Civ.  App.)  27  S.  W.  160.  See,  also, 
§  139,  post.  But  see  Slessman  v. 
Crozier,  80  Ind.  487,  and  Collins  v. 
Hatch,  18  Ohio,  523,  and  see  Wil- 
son v.  Beyers,  5  Wash.  303,  and 
Miles  v.  Chamberlain,  17  Wis.  446, 
which  deny  the  power  upon  the 
failure  of  its  express  grant. 

200  Bates  v.  District  of  Columbia, 
1  MacArthur  (D.  C.)  433;  McLean 
v.  Mathews,  7  111.  App.  599;  Baker 
v.  Bohannan,  69  Iowa,  60;  City  of 
Cambridge  v.  Munroe,  126  Mass. 
496;  City  of  St.  Louis  v.  Stern,  3 
Mo.  App.  48;  City  of  St.  Louis  v. 
Steele,  12  Mo.  App.  570;  Board  of 
Health  of  Hamilton  Tp.  v.  Neidt  (N. 
J.  Eq.)  19  Atl.  318;  Board  of  Health 
of  Vailsburgh  v.  Inhabitants  of  East 
Orange,  53  N.  J.  Eq.  498;  McLaren 
v.  City  of  New  York,  1  Daly  (N.  Y.) 
243;  Boom  v.  City  of  Utica,  2  Barb. 
(N.  Y.)  104;  People  v.  New  York 
Board  of  Health,  33  Barb.  (N.  Y.) 
344;  Gregory  v.  City  of  New  York, 
40  N.  Y.  273;  U.  S.  Illuminating  Co. 
v.  Grant,  55  Hun  (N.  Y.)  222;  Gould 
v.  City  of  Rochester,  105  N.  Y.  46. 
See,  also,  authorities  cited,  §  137, 
note  94;  Bliss  v.  Kraus,  16  Ohio  St. 
55.  Proceedings  merely  colorable 
and  designed  under  the  pretense  of 
removing  a  nuisance  not  capable  of 


enforcement.  Easby  v.  City  of  Phil- 
adelphia, 67  Pa.  337;  City  of  Charles- 
ton v.  Werner,  38  S.  C.  488. 

201  Williams  v.  City  Council  of 
Augusta,  4  Ga.  509;  City  of  Ameri- 
cus  v.  Mitchell,  79  Ga.  807,  5  S.  E. 
201;  Harmison  v.  City  of  Lewiston, 
46  111.  App.  164;  King  v.  Davenport, 
98  111.  305;  North  Chicago  City  R. 
Co.  v.  Town  of  Lake  View,  105  111. 
207.  "There  are  many  things  which 
courts  without  proof  will  *  *  * 
declare  nuisances.  Such,  for  in- 
stance, would  be  the  digging  of  a 
pit  or  the  erection  of  a  house  or 
other  obstruction  in  a  public  high- 
way." Miller  v.  City  of  Valparaiso, 
10  Ind.  App.  22,  3<  N.  E.  418.  "When 
a  public  nuisance  creates  an  immi- 
nent danger,  a  necessity  for  imme- 
diate action  arises.  If  the  public 
authorities  were  compelled  to  give 
notice  and  await  the  action  of  courts 
or  other  bodies,  the  delay  might  re- 
sult in  public  calamity.  The  right 
of  self-preservation  is  one  of  the 
first  laws  of  nature  and  applies  to 
organized  societies  as  well  as  indi- 
viduals." Baumgartner  v.  Hasty, 
100  Ind.  575;  Joyce  v.  Woods,  78  Ky. 
386;  State  v.  Heidenhain,  42  La. 
Ann.  483;  City  of  Baltimore  v.  Rad- 
ecke,  49  Md.  217;  City  of  St.  Louis 
v.  Stern,  3  Mo.  App.  48;  Metropoli- 
tan Board  of  Health  v.  Heister,  37 
N.  Y.  661;  Nolan  v.  Town  of  Frank- 
lin, 12  Tenn.  (4  Yerg.)  163;  1  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)— Abate- 
ment of  Nuisances. 


§  138 


POLICE  POWER. 


279 


the  power  to  abate  nuisances,  they  may,  after  the  legal  deter- 
mination of  such  a  fact,  summarily  abate  or  remove  the  same 
even  by  destruction  of  the  property.202  The  creation  of  a  nui- 
sance may  be  prevented  by  proceedings  in  equity  where  the  usual 
rules  in  respect  to  the  granting  of  injunctions  will  apply;  ordi- 
narily, a  private  person  is  not  a  proper  party  complainant  when 
a  public  nuisance  is  involved ;  where  no  injury  is  suffered  beyond 


202  License  Cases,  5  How.  (U.  S.) 
504.  Justice  McLean  in  this  case 
said:  "The  acknowledged  police 
power  of  a  state  extends  often  to 
the  destruction  of  property.  A  nui- 
sance may  be  abated.  Everything 
prejudicial  to  the  health  or  morals 
of  a  city  may  be  removed."  Mugler 
v.  State  of  Kansas,  123  U.  S.  661; 
Ferguson  v.  City  of  Selma,  43  Ala. 
398, — decayed  and  dilapidated  hous- 
es; Harvey  v.  Dewoody,  18  Ark.  252; 
Baumgartner  v.  Hasty,  100  Ind.  575; 
Miller  v.  Horton,  152  Mass.  540; 
Ferrenbach  v.  Turner,  86  Mo.  416. 
A  well  located  within  the  limits  of 
a  public  street.  Green  v.  Lake,  60 
Miss.  451;  Manhattan  Mfg.  &  Fer- 
tilizing Co.  v.  Van  Keuren,  23  N.  J. 
Eq.  (8  C.  E.  Green)  255;  Newark 
&  S.  0.  Horse  Car  R.  Co.  v.  Hunt, 
50  N.  J.  Law,  308, — killing  diseased 
horses;  In  re  Jacobs,  98  N.  Y.  98. 
Sometimes,  however,  compensation 
for  property  destroyed  is  required, 
Safford  v.  Detroit  Board  of  Health, 
110  Mich.  81,  and  other  cases  hold 
that  only  in  extreme  instances 
should  one  be  deprived  of  the  use  of 
his  property  and  that  in  any  case 
there  cannot  be  a  wanton  or  willful 
destruction.  Allison  v.  City  of 
Richmond,  51  Mo.  App.  133;  Wag- 
goner v.  City  of  South  Gorin,  88  Mo. 
App.  25.  Neither  can  property  used 
so  as  to  constitute  a  nuisance  be  de- 
stroyed or  forfeited  as  a  punish- 
ment for  the  wrong.  Lawton  v. 


Steele,  119  N.  Y.  226,  239.  "But 
where  a  public  nuisance  consists  in 
the  location  or  use  of  tangible  per- 
sonal property,  so  as  to  interfere 
with  or  obstruct  a  public  right  or 
regulation,  as  in  the  case  of  the 
float  in  the  Albany  basin  (9  Wend. 
571),  or  the  nets  in  the  present  case, 
the  legislature  may,  we  think,  au- 
thorize its  summary  abatement  by 
executive  agencies  without  resort  to 
judicial  proceedings,  and  any  injury 
or  destruction  of  the  property  neces- 
sarily incident  to  the  exercise  of  the 
summary  jurisdiction,  interferes 
with  no  legal  right  of  the  owner. 
But  the  legislature  cannot  go  furth- 
er. It  cannot  decree  the  destruction 
or  forfeiture  of  property  used  so  as 
to  constitute  a  nuisance  as  a  punish- 
ment of  the  wrong,  nor  even,  we 
think,  to  prevent  a  future  illegal 
use  of  the  property,  it  not  being  a 
nuisance  per  se,  and  appoint  officers 
to  execute  its  mandate.  The  plain 
reason  is  that  due  process  of  law 
requires  a  hearing  and  trial  before 
punishment,  or  before  forfeiture  of 
property  can  be  adjudged  for  the 
owner's  misconduct.  Such  legisla- 
tion would  be  a  plain  usurpation  by 
the  legislature  of  judicial  powers, 
and  under  guise  of  exercising  the 
power  of  summary  abatement  of 
nuisances,  the  legislature  cannot 
take  into  its  own  hands  the  enforce- 
ment of  the  criminal  or  quasi  crim- 
inal law." 


POWERS. 


§   138 


that  shared  in  common  with  the  general  public,203  unless  it  clearly 
appears  that  he  is  likely  to  sustain  damages  peculiar  to  himself 
and  in  excess  of  those  suffered  by  the  public  generally.204  The 
usual  agency  for  the  regulation  or  removal  of  a  public  nuisance 
is  through  a  board  or  department  of  health  acting  under  author- 
ity of  the  corporate  charter  or  the  general  statutes  and  accord- 
ing to  the  manner  designated  by  law.  The  mode  of  action  may 
sometimes  be  found  in  ordinances  passed  by  the  corporate  legis- 
lative body,  or  the  manner  and  time  of  official  action  may  rest  in 
the  body  itself  to  be  exercised  in  their  sound  discretion.  The 
grant  of  power  or  authority  may  be  general  in  its  terms  either 
as  to  its  extent  or  as  to  the  manner  or  time  of  its  exercise,  and 
again  the  precise  manner  of  its  exercise  may  be  designated  by 
law  or  ordinance. 

In  common  with  other  powers  granted  public  corporations,  they 
have  the  right  within  their  charter  limitations  to  enforce  regu- 
lations, rules  or  orders  which  they  can  legally  make.205  If  the 


203  People  v.  Truckee  Lumber  Co., 
116  Cal.  397.     The  fact  that  a  pub- 
lic nuisance  is  made  punishable  by 
law  is  not  a  bar  to  a  suit  to  enjoin 
it.     Reed   v.   Cheney,  111  Ind.  387; 
Brown    v.    Perkins,    78    Mass.     (12 
Gray)    89;    Clark  v.  Lake  St.  Glair 
&  N.   U.  R.   Ice  Co.,  24  Mich.   508; 
Fields  v.  Stokley,  99  Pa.  309;    God- 
sell  v.  Fleming,  59  Wis.  52. 

204  Owens   v.   State,   52   Ala.   400; 
Whaley  v.  Wilson,  112  Ala.  627.    A 
bill  in  equity  can  be  maintained  by 
a  private  person  to  abate  a  public 
nuisance,  where  it  can  be  shown  that 
the     complainant     had     suffered    a 
special  damage  and  where  the  wrong 
complained  of  was  continuous.   Earp 
v.  Lee,  71  111.  193;  Bidinger  v.  Bish- 
op, 76  Ind.  244. 

Douglass  v.  City  of  Leavenworth, 
6  Kan.  App.  96,  49  Pac.  676.  A  pri- 
vate person  specially  injured  by  a 
public  nuisance  has  the  right  to  sue 
for  its  abatement.  Turner  v.  Holtz- 
man,  54  Md.  148;  Brown  v.  Perkins. 
78  Mass.  (12  Gray)  89;  Miller  v. 


Forman,  37  N.  J.  Law,  55;    Brown 
v.  De  Groff,  50  N.  J.  Law,  409;  Fort. 
Plain  Bridge  Co.  v.  Smith,  30  N.  Y. 
44;  Lawton  v.  Steele,  119  N.  Y.  226; 
State  v.  Keeran,  5  R.  I.  497. 

205  For  specific  illustrations  of  a 
violation  of  regulations  preventing 
or  abating  public  nuisances  see: 
United  States  v.  The  Emperor,  49 
Fed.  751;  City  of  Bloomington  v. 
Costello,  65  111.  App.  407.  A  city 
cannot  acquire  the  prescriptive  right 
to  continue  a  public  nuisance. 

Long  v.  City  of  Portland,  151  Ind. 
442;  Town  of  Nevada  v.  Hutchins, 
59  Iowa,  506.  Under  the  power  to 
abate  a  nuisance  a  municipality  has 
no  right  to  fine  a  person  for  ob- 
structing a  street. 

In  City  of  Knoxville  v.  Chicago, 
B.  &  Q.  R.  Co.,  83  Iowa,  636,  the 
court  held  that  an  incorporated  town 
had  no  authority  to  pass  an  ordi- 
nance imposing  a  fine  for  the  main- 
tenance of  a  nuisance  under  the 
general  grant  of  power  "to  prevent 


§   138                                          POLICE  POWER.                                                 281 

power  exists  to  abate,  remove  or  suppress  a  nuisance,  with  the 

necessary  authority  to  execute  this  power,  it  impliedly  follows 
that  the  legal  right  exists  to  employ  o"1  use  all  necessary  and 

proper  means  in  the  execution  of  the  powers  possessed,  express 
or  implied.206     The   question  has   been  raised  where  a   charter 

injury  or  annoyance  from  anything  qua,  67   Wis.  343.     But  the  rule  is 

dangerous,  offensive  or  unhealthy."  somewhat     different     in     Maryland. 

Barring  v.  Com.,  63  Ky.  (2  Duv.)  See  Taylor  v.  City  of  Cumberland, 

95;    City  of  Waycross  v.  Houk,  113  64  Md.  68;  City  of  Baltimore  v.  Mar- 

Ga.  963.    The  obligation  is  mandatory  riott,  9  Md.  160. 

upon  the  city  council  and  mayor  to  206  Sanitary   Reduction   Works   of 

abate  any  nuisance  they  might  ere-  San  Francisco  v.  California  Reduc- 

ate  within  the  city  limits,  and  the  tion  Co.,  94  Fed.  693.     A  franchise 

court  also  held  that  upon  their  re-  granted    for   the   cremation   of   city 

fusal   to   do   so  they  could  be   held  garbage  held  controlled  by  Cal.  St. 

accountable   for   its    maintenance.  1893,    p.    288,    §    1,    prescribing   the 

Harper  v.  City  of  Milwaukee,  30  manner    in    which    franchises    and 

Wis.  365.     A  municipal  corporation  privileges     should    be    granted    Uy 

has   no   greater   right  to   erect  and  municipalities;    affirmed    (C.  C.  A.) 

maintain  a  public  nuisance  than  a  126  Fed.  29, — the  validity  of  an  ex 

private  individual,  and  is  responsi-  elusive  franchise  for  such  work  de- 

ble  to  the  same  extent.  cided  in  the  affirmative  with  many 

The  weight  of  authority  is  to  the  authorities  collated, 
effect  that  where  the  abatement  or  Alpers  v.  Brown,  60  Cal.  447.  Con- 
removal  of  a  nuisance  is  included  struing  exclusive  right  to  remove 
within  the  discretionary  or  legisla-  dead  animals  within  twenty-four 
tive  powers  of  the  public  corpora-  hours.  Walker  v.  Jameson,  140  Ind. 
tion,  a  person  injured  by  the  fail-  591,  and  authorities  cited;  Martin 
ure  of  the  corporation  to  exercise  v.  Montgomery  County  Com'rs,  27 
the  power  and  remove  or  abate  a  Ind.  App.  98,  60  N.  E.  998.  Secre- 
nuisance  has  no  right  of  action  tary  of  board  of  county  commis- 
against  the  corporation.  See  City  of  sioners  has  no  authority  to  bind  the 
Wilmington  v.  Vandegrift,  1  Marv.  county  for  an  indebtedness  incurred 
(Del.)  5,  25  L.  R.  A.  538;  City  of  in  abating  a  stagnant  pond  without 
Anderson  v.  East,  117  Ind.  126;  authority  from  the  board. 
James'  Adm'r  v.  City  of  Harrods-  State  v.  Payssan,  47  La.  Ann. 
burg,  85  Ky.  191;  McCormock  v.  1029.  Removal  of  offal  by  contract 
Patchin,  53  Mo.  33;  Saxton  v.  St.  authorized.  River  Rendering  Co.  v. 
Joseph,  60  Mo.  153;  Armstrong  v.  Behr,  77  Mo.  91.  The  exclusive  right 
Brunswick,  79  Mo.  319;  Kiley  v.  to  remove  and  appropriate  animal 
Kansas  City,  87  Mo.  103;  Hill  v.  carcasses  found  in  the  city  and  not 
Charlotte.  72  N.  C.  55;  McDade  v.  killed  for  food  held  not  capable  of 
Chester,  117  Pa.  414;  Hutchinson  v.  enforcement  as  to  those  not  a  nui- 
Town  of  Concord,  41  Vt.  271;  sance.  Hannibal  v.  Richards,  82  Mo. 
Schultz  v.  City  of  Milwaukee,  49  . 330;  Waggoner  v.  City  of  South  Gor- 
Wis.  254;  Hubbell  v.  City  of  Viro-  in,  88  Mo.  App.  25;  Her  v.  Ross,  64 


282  POWERS.  §  139 

gives  to  municipal  authorities  the  power  to  prevent  injury  or 
annoyance  and  abate  or  suppress  nuisances,  of  the  right  to  dele- 
gate to  some  subordinate  agency  created  by  them  the  execution 
of  this  power.  As  a  general  proposition  it  can  be  said  that  when 
the  statutes  give  to  a  certain  agency,  to  be  executed  by  itself, 
specific  powers  or  duties,  such  agency  possesses  the  right  to 
delegate  the  performance  of  these  duties  or  powers  to  subor- 
dinate agencies,  unless  they  involve  legislative  functions.  Or,  to 
state  the  proposition  in  another  way,  the  duties  prescribed  de- 
volving upon  a  certain  governmental  agent  are  discretionary  in 
their  character  as  to  the  extent  and  manner  of  their  exercise,  un- 
less the  provisions  of  the  statute  are  mandatory  in  thus  granting 
the  powers  and  directing  the  extent  and  manner  of  their  exercise 
when  the  right  of  delegation  does  not  exist.  If,  however,  a 
power  is  granted  in  general  terms  to  the  governmental  agent,  a 
public  corporation,  such  agent  usually  possesses  the  power  of 
delegation.207  If  there  is  any  doubt  as  to  the  soundness  of  this 
principle  it  can  be  stated  that  such  doubt  does  not  exist  where 
the  character  of  the  duties  to  be  performed  are  ministerial  or 
clerical. 

§  139.    Objections  to  the  removal  or  abatement  of  nuisances. 
As  already  suggested  in  a  preceding  section  some  jurisdictions 

Neb.  710,  90  N.  W.  869.  Removal  of  dictment  maintained  against  munici- 
garbage  under  contract.  Balch  v.  pal  corporation  for  its  failure  to  re- 
City  of  Utica,  42  App.  Div.  562,  59  move  and  abate  a  slaughter  house 
N.  Y.  Supp.  513.  Right  of  munici-  kept  to  the  detriment  of  the  public 
pality  to  contract  for  removal  of  health  where  such  municipal  corpo- 
garbage  and  offal  construed  and  au-  ration  had  the  power  to  enact  ordi- 
thorized.  City  of  Philadelphia  v.  nances  necessary  to  preserve  public 
Provident  Life  &  Trust  Co.,  132  Pa.  health  and  remove  nuisances. 
224.  Authority  exceeded.  State  v.  Llano  County  v.  City  of  Llano,  9 
McCulla,  16  R.  I.  196;  Harrington  v.  Tex.  Civ.  App.  372;  Kilvington  v. 
Board  of  Aldermen  of  Providence,  20  City  of  Superior,  83  Wis.  222.  Con- 
R.  I.  233;  City  of  Huron  v.  Bank  of  tract  for  the  construction  and  opera- 
Volga,  8  S.  D.  449.  Municipal  au-  tion  of  crematory  for  the  consump- 
thorities  held  in  this  case  as  having  tion  of  refuse  construed.  Dean  v. 
the  right  in  the  exercise  of  the  Charlton,  23  Wis.  590,  distinguished 
granted  power  to  invoke  the  aid  of  and  limited. 

a  court  of  equity.  207  Gaines  v.  Waters,  64  Ark.  609; 

State    v.    Corporation    of    Shelby-  Welch  v.   Stowell,  2  Doug.    (Mich.) 

ville,  36  Tenn.   (4  Sneed)   176.     In-  332. 


§   140  TO  INCUR  INDEBTEDNESS.  283 

hold  that  to  maintain  the  validity  of  proceedings  having  for  their 
purpose  the  abatement  or  removal  of  nuisances,  it  is  necessary 
that  the  owners  of  such  property  or  those  interested  or  affected 
should  have  notice  of  such  proceedings  or  actions  that  they  may 
have  an  opportunity  to  appear  and  defend  themselves  or  their 
property  against  the  charges  made.208  The  action  of  boards  of 
health  or  like  bodies  in  passing  upon  and  determining  the  char- 
acter of  acts  or  the  condition  of  property  while  not  conclusive 
is  usually  considered  of  such  a  discretionary  character  as  will 
prevent  the  courts  from  reviewing  it,  except  in  cases  of  fraud, 
mistake,  or  where  the  official  body  has  clearly  exceeded  its 
authority  under  powers  conferred  either  by  the  charter  of  the 
municipal  corporation  or  the  laws  or  constitution  of  the  state.209 
The  time  for  action  by  the  property  owner  or  individual  affected 
in  some  cases  is  also  held  material,  the  rule  being  that  until  a 
final  order  or  adjudication  is  made  he  may  not  have  the  right 
to  contest  such  action,  order  or  adjudication.210 

III.    THE  POWER  TO  INCUB  INDEBTEDNESS  OTHER  THAN  BY  THE  ISSUE  OF 

BONDS. 

§  140.    The  corporate  power  to  incur  indebtedness. 

Of  the  essential  and  characteristic  differences  between  public 
and  private  corporations  a  few  have  been  discussed,  some  have 

208  See    §    124;    Bush    v.    City    of  Com.    v.    Cutter,    156    Mass.    52; 
Dubuque,    69    Iowa,    233;     City    of  Stone  v.  Heath,  179  Mass.  385.    The 
Salem   v.   Eastern  R.   Co.,  98  Mass,  superior  court  has  no  power  under 
431;    Weil  v.  Ricord,   24  N.   J.   Eq.  its  general  equity  jurisdiction  to  re- 
(10  C.  E.  Green)   176;   Lydecker  v.  strain  a  town  board  of  health  from 
Eells,   50   Hun,   606,    3   N.   Y.    Supp.  abating  nuisances. 

324;    People  v.  Board  of  Health  of        Mann  v.  Willey,  51  App.  Div.  169, 

Seneca  Falls,  58  Hun   (N.  Y.)    595;  64  N.  Y.  Supp.  589.     In  an  action  to 

Gould  v.  City  of  Rochester,  105  N.  atate  a  nuisance  by  a  riparian  own- 

Y.  46;   City  of  Philadelphia  v.  Dun-  er  an  order  of  a  town  board  of  health 

gan,  124  Pa.  52;  Teass  v.  City  of  St.  requiring  the  defendant  to  discharge 

Albans,  38  W.  Va.  1.  sewage  from  his  hotel  into  a  water- 

209  Hartman  v.   City   of  Wilming-  course    was    held    not    a     defense, 
ton,  1  Marv.   (Del.)   215,  41  Atl.  74.  Brown  v.  District  of  Narragansett, 
The  action  of  a  municipal  board  of  21  R.   I.  156. 

health    in    determining    a    nuisance  210  Gauld  v.  City  &  County  of  San 

and   ordering   its  abatement  is   not  Francisco  Sup'rs,  122  Cal.  18,  54  Pac, 

such  an  adjudication  as  can  be  re-  272. 
viewed  on  certiorari. 


284  POWERS.  §   140 

been  suggested,  and  others  have  been  merely  intimated  in  the 
preceding  sections.  As  one  of  the  last,  fundamental  in  its  char- 
acter and  of  controlling  influence  in  doubtful  cases  involving 
the  incurring  of  an  indebtedness  or  the  creation  of  an  obligation, 
is  the  source  of  funds  raised  for  the  payment  of  these  obliga- 
tions. A  private  corporation  is  a  private  enterprise  designed 
usually  for  the  direct  personal  pecuniary  advantage  of  the  mem- 
bers. The  funds  for  its  promotion  and  the  transaction  of  the 
corporate  business  are  derived  through  contributions  from  or 
assessments  upon  their  private  means.  If  by  mismanagement, 
the  dishonesty  or  extravagance  of  its  agents,  or  the  creation  of 
ill-advised  or  imprudent  obligations,  a  loss  is  sustained  by  the 
corporation,  such  loss  is  met  by  and  falls  upon  the  members  per- 
sonally. Entirely  different  are  the  conditions  and  results  with 
public  corporations.  They  are  organized  as  governmental  agents 
and  as  such  share  in  the  administration  of  governmental  affairs 
and  the  exercise  of  public  duties  resting  upon  the  sovereign.  All 
the  expenditures  of  these  corporations  in  their  public  capacity 
are  paid  by  moneys  raised  through  the  imposition  and  collection 
of  taxes  upon  taxable  interests  of  the  community.  Those  in 
charge  of  the  expenditures  of  public  money  may  be  irresponsi- 
ble agents  elected  by  some  misguided,  temporary,  popular  feel- 
ing. Irresponsible,  however,  or  otherwise,  there  is  ever  an  irre- 
sistible tendency  on  the  part  of  public  officials,  prudent  though 
they  may  be  in  the  management  of  their  private  finances,  to  ex- 
pend public  moneys  lavishly  and  extravagantly,  and  unneces- 
sarily to  incur  debts  or  contract  obligations  intended  to  advance 
their  personal  interests  or  to  perpetuate  themselves  in  power. 
The  expenditures  of  public  moneys  must  be  met  by  the  levying 
and  collection  of  taxes,  the  incurring  of  indebtedness  or  the  crea- 
tion of  obligations,  and  fall  ultimately  upon  the  public  purse. 
Foolish,  unwise  or  extravagant  expenditures,  and  losses  result- 
ing from  fraudulent  or  improvident  contracts  do  not  fall  except 
in  the  most  indirect  manner,  and  then  only  to  a  limited  extent, 
upon  the  private  means  of  these  irresponsible  official  agents.  It 
is  chiefly  this  difference  in  the  manner  of  raising  revenue  which 
leads  the  courts  to  adopt  the  strict  rule  of  construction  in  allow- 
ing and  recognizing  the  right  to  incur  indebtedness  by  public 
corporations. 


§   141  TO  INCUR  INDEBTEDNESS.  285 

§  141.    Must  be  expressly  given;  it  cannot  be  implied. 

Owing  to  the  fact  that  public  corporations  are  controlled  and 
managed  by  agents  who  do  not  contribute,  except  in  a  most  in- 
direct manner  and  to  a  slight  extent,  to  the  funds  for  carrying 
on  the  corporate  work,  and  the  further  fact  that  they  are  gov- 
ernmental agents  created,  organized  and  designed  to  fill  a  want 
or  place  entirely  different  in  its  character  and  nature  from  that 
which  is  the  basis  of  the  creation  of  the  private  corporation,  the 
necessity  exists  to  maintain  at  all  times  and  upon  all  questions 
the  strict  rule  for  the  construction  of  corporate  powers.  A  cor- 
poration is  an  artificial  person  possessing  such  powers  as  are 
given  to  it  by  the  charter  of  its  creation,  which,  as  has  been  said 
repeatedly  by  the  supreme  court  of  the  United  States,  is  "the 
measure  of  its  powers."  These  powers,  as  stated  in  a  preceding 
section,211  may  be  divided  into  express  and  implied,  with  the 
further  subdivision  of  implied  powers  into  those  absolutely  neces- 
sary to  the  corporate  existence  and  those  proper,  necessary  or 
convenient  for  the  carrying  on  of  corporate  work.  The  power 
to  incur  indebtedness,  except  as  modified  by  the  doctrine  stated 
in  a  succeeding  section,212  must  be  expressly  given  to  a  public 
corporation  before  a  valid  debt  or  obligation  can  be  contracted 
or  incurred.213  This  strict  rule  is  adopted  universally  by  the 

211  See  §§  108  and  109,  ante.  State  v.  City  of  Great  Falls,  19  Mont. 

212  See  post,  §  143.  518.     See  this  case  for  definition  of 

213  Brenham    v.   German-American  "loan  of  credit"  as  prohibited  by  Act 
Bank,  144  U.  S.  173;  Watson  v.  City  of  Cong.  1886,  §  2  (Comp.  St.  Mont, 
of  Huron,   97  Fed.  449;    Lindsey  v.  p.  32).    Tukey  v.  City  of  Omaha,  54 
Rottaken,    32    Ark.    619;    Ex   parte  Neb.  370. 

Sims,  40  Fla.  432.    Delegated  corpo-  Town  of  Hackettstown  v.  Swack- 

rate  powers  which  may  result  in  pub-  hamer,  37  N.  J.  Law,  191.    Where  the 

lie   burdens  should  be  strictly   con-  specific  grant  of  power  does  not  ex- 

strued.  ist  to  borrow  money,  a  note  given  by 

City  of  Galena  v.  Corwith,  48  111.  a    corporation    for    and    authorizing 

423.    A  municipality  has  the  implied  the    loan    cannot   be   enforced    even 

power  to  fund  its  debts  or  provide  though  the  money  borrowed  has  been 

means  for  their  payment  and  to  is-  expended  for  municipal  purposes, 

sue  the  necessary  evidences  thereof.  Wells  v.  Town  of  Salina,  119  N.  Y. 

Myers  v.  City  of  Jeffersonville,  145  280.    The  power  to  "raise  money"  in 

Ind.  439;  Law  v.  People,  87  111.  385;  this  case  defined  as  the  "power  to 

Lovejoy  v.  Inhabitants  of  Foxcroft,  raise  money  by  taxation,  not  by  bor- 

91  Me.  367;  Frost  v.  Inhabitants  of  rowing." 

Belmont,   88    Mass.    (6   Allen)    152;  La  Ross  v.  Allegheny  County,  22 


286 


POWERS. 


141 


courts  as  the  only  available  means  for  curbing  and  restraining 
the  dishonesty  or  extravagance  of  public  officials.  The  power 
must  exist  either  in  some  charter,  statutory  or  constitutional 
provision  ;214  if  necessary  to  corporate  life  it  may  impliedly  exist 
though  not  expressly  given.  These  provisions  are  usually  con- 
sidered mandatory  in  their  character,215  not  directory,  and  if 
the  manner  for  the  incurring  of  the  indebtedness  is  prescribed, 
all  the  steps  directed  by  law  to  be  taken  must  be,  and  in  the  way 
designated,  or  lawful  authority  does  not  exist. 

An  indebtedness  may  be  incurred  through  the  issue  of  negotia- 
ble bonds,  a  subject  to  be  considered  in  succeeding  sections,218 
where  express  authority  is  given  for  the  incurring  of  a  certain 
debt  fixed  both  in  amount  and  character.  Or  it  may  be  incurred 
through  the  issue  of  evidences  or  certificates  of  indebtedness, 
assignable  or  negotiable  in  their  character,  but  not  partaking  of 
the  legal  character  or  coupled  with  the  formalities  of  a  negotia- 
ble bond.217 


Pa.  Co.  Ct.  R.  360.  Act  of  May  15, 
1893,  rule  40  (p.  83),  held  invalid. 
This  provided  that  a  mine  foreman, 
in  case  of  injury  to  a  person  in  or 
about  a  mine,  should  secure  medical 
or  surgical  treatment  and  in  case  of 
the  inability  of  the  injured  person 
to  pay  that  the  same  should  be  borne 
by  the  county.  The  court  said  that 
a  debt  by  this  act  could  be  contract- 
ed as  against  a  county  without  its 
consent  or  knowledge,  something  be- 
yond the  powers  of  the  legislature. 
214  Coggeshall  v.  City  of  Des 
Moines,  78  Iowa,  235;  Frantz  v.  Ja- 
cob, 88  Ky.  525;  Belknap  v.  City  of 
Louisville,  99  Ky.  474;  Washburn  v. 
Com.,  137  Mass.  139;  French  v.  South 
Arm  Tp.,  122  Mich.  593;  City  of 
Greenville  v.  Laurent,  75  Miss.  456; 
Tenth  Nat.  Bank  v.  New  York  City, 
4  Hun  (N.  Y.)  429;  Douglass  v.  Vir- 
ginia City,  5  Nev.  147;  Young  v. 
Town  of  Henderson,  76  N.  C.  420; 
Black  v.  Buncombe  County  Com'rs, 


129  N.  C.  121;  Barr  v.  City  of  Phila- 
delphia, 191  Pa.  438. 

215  Dunbar     v.      Canyon     County 
Com'rs,  6  Idaho,  725,  49  Pac.  409. 

216  See  post,  §§  169-225. 

217  City  of  Nashville  v.  Ray,  86  U. 
S.   (19  Wall.)  468;    Cothran  v.  City 
of  Rome,  77  Ga.  582.     No  power  ex- 
isting to  issue  change-bills  or  prom- 
ises in  the  similitude  of  currency. 

Newgass  v.  City  of  New  Orleans, 
42  La.  Ann.  163.  The  power  to  issue 
unconditional  obligations  to  pay 
money  having  the  attributes  of  ne- 
gotiable instruments  held  as  not  ex- 
isting in  the  absence  of  expressly 
stated  authority. 

Halstead  v.  City  of  New  York,  5 
Barb.  (N.  Y.)  218;  De  Voss  v.  City 
of  Richmond,  18  Grat.  (Va.)  338; 
Mills  v.  Gleason,  11  Wis.  470.  A 
public  corporation  has  the  implied 
power  to  borrow  money  for  a  use 
expressly  authorized  by  its  charter, 
in  the  execution  of  which  money  will 
be  a  necessary  means. 


143  TO  INCUR  INDEBTEDNESS.  287 

§  142.    To  what  extent  discretionary  if  expressly  given. 

The  courts  usually  hold  that  if  the  power  to  incur  indebted- 
ness or  create  an  obligation  is  expressly  given  in  the  charter, 
statutes  or  constitution,  it  is  to  be  considered  in  the  issue  of 
bonds  not  a  continuing  power  but  exhausted  through  their  issue 
to  the  amount  and  for  the  purpose  specified.218  The  power  to 
incur  other  indebtedness  for  governmental  work  or  usual  munic- 
ipal purposes,  if  granted,  has  a  different  character  and  is  general- 
ly considered  a  continuing  power,  to  be  exercised  however  for 
the  purpose  and  in  the  manner  as  provided  by  law  and  subject 
to  all  constitutional  restrictions  on  indebtedness  or  obligations 
legally  incurrable  by  public  corporations.  The  courts  further 
hold  in  construing  this  last  power,  whether  expressly  given  or 
found  in  the  first  class  of  implied  powers,  that  unless  the  specific 
purpose  is  designated  by  the  authority,  the  time  and  place  or  the 
expediency  of  its  exercise  rests  within  the  sound  discretion  of 
the  public  authorities,  so  long  as  the  purpose  is  a  "public  one," 
and  the  amount  within  constitutional  limitations.219 

§  143.    Implied  power  of  the  courts  to  compel  the  payment  of 
debts. 

To  protect  the  tax-paying  public  the  courts  have  adopted  and 
enforced  almost  universally  the  strict  rule  of  construction  of  a 
corporate  right  to  incur  a  valid  indebtedness.  The  practical 
effect  of  the  workings  of  this  rule  is  to  deny  to  public  corpora- 
tions the  legal  authority  to  incur  an  indebtedness  if  the  question 
may  arise  or  if  there  exists  any  doubt  or  ambiguity.  There  will 
be  found,  however,  on  an  examination  of  the  authorities,  many 
cases  holding  that  a  defect  of  power  may  be  no  defense.  For 
the  purpose  of  enforcing  honest  obligations,  courts  have  adopted 
what  might  be  termed  the  implied  power  of  a  public  corporation 
to  incur  indebtedness  other  than  by  ordinance,  charter,  or  statu- 
tory provision,220  either  considered  as  withholding  the  power  or 

218  Millsaps  v.  City  of  Terrell,  60  270.     But  see  Brenham  v.  German- 
Fed.  193;  Wilson  v.  City  Council  of  American   Bank,   144   U.   S.   173,   as 
Florence,  40  S.  C.  290,  426.  partially  reversing  the  two  cases  last 

219  Rogers  v.  City  of  Burlington,  70  cited;  Oilman  v.  City  of  Sheboygan, 
U.  S.  (3  Wall.)  654;  Mitchell  v.  City  2  Black  (U.  S.)  510. 

of  Burlington,   71   U.   S.    (4  Wall.)        220  Dodge  v.  City  of  Memphis,  51 


288 


POWERS. 


143 


regulating  the  manner  in  which  it  shall  be  exercised.  The  late 
Justice  Field  when  upon  the  supreme  bench  of  the  state  of  Cali- 
fornia held  in  an  early  case  that221  "The  doctrine  of  implied  mu- 
nicipal liability  applies  to  cases  where  money  or  other 
property  of  a  party  is  received  under  such  circumstances 
that  the  general  law,  independent  of  express  contract,  im- 
poses the  obligation  upon  the  city  to  do  justice  with  re- 
spect to  the  same.  If  the  city  obtain  money  of  another  by  mis- 


Fed.  165.  "The  authorities  show  that 
if  negotiable  paper  is  uttered  by  a 
municipal  corporation  without  au- 
thority of  law  it  is  void,  and  a  suit 
cannot  be  maintained  thereon  for  any 
purpose.  City  of  Nashville  v.  Ray, 
86  U.  S.  (19  Wall.)  468;  Hitchcock 
v.  City  of  Galveston,  96  U.  S.  341; 
City  of  Little  Rock  v.  Merchants' 
Nat.  Bank,  98  U.  S.  308;  Wall  v.  Mon- 
roe County,  103  U.  S.  74;  Hill  v. 
City  of  Memphis,  134  U.  S.  198;  Mer- 
rill v.  Town  of  Monticello,  138  U.  S. 
673.  They  show  no  doubt  that  when 
a  municipal  corporation  sells  bonds 
which  are  void  and  receives  the  mon- 
ey it  may  be  c  rnpelled  to  restore 
it  in  an  action  for  money  had  and 
received.  So  when  a  municipal  cor- 
poration is  authorized  to  purchase 
property  for  any  purpose  or  to  con- 
tract for  the  erection  of  public  build- 
ings, or  for  any  other  public  work, 
and  it  enters  into  such  authorized 
contract,  but  pays  for  the  property 
acquired  or  work  done  in  negotiable 
securities  which  it  has  no  express 
or  implied  power  to  issue,  it  may  be 
compelled  to  pay  for  that  which  it 
has  received  in  a  suit  brought  for 
that  purpose.  In  no  case,  however, 
does  it  appear  that  a  suit  has  been 
sustained  on  a  void  bond,  treating  it 
as  non-negotiable  and  as  something 
entirely  different  from  what  the  par- 
ties intended  it  should  be.  As  the 
court  understands  the  cases,  suit 


must  be  brought  on  the  implied 
promise  which  the  law  raises  to  pay 
the  value  of  that  which  the  munici- 
pality has  received,  but  has  in  fact 
not  paid  for,  because  the  securities 
issued  in  pretended  payment  were 
void." 

City  of  Denver  v.  Webber,  15  Colo. 
App.  511,  63  Pac.  804.  The  implied 
power  possessed  to  carry  out  powers 
expressly  granted  in  this  case  and  to 
contract  for  the  employment  of  spe- 
cial counsel  held  valid. 

F.  C.  Austin  Mfg.  Co.  v.  Smith- 
field  Tp.,  21  Ind.  App.  609,  52  N.  E. 
1011.  A  debt  contracted  in  excess 
of  the  statutory  limitation  cannot  be 
enforced  against  a  township  though 
it  has  received  and  used  the  supplies 
sold.  French  v.  South  Arm  Tp.,  122 
Mich.  593.  A  township  not  liable  for 
an  indebtedness  not  created  or  rati- 
fied by  vote  of  its  electors.  See,  also 
Young  v.  Board  of  Education  of  In- 
dependent School  Dist.  No.  47,  54 
Minn.  385,  as  holding  that  the  offi- 
cers of  a  school  district,  originally, 
without  authority,  cannot  bind  the 
district  by  their  action,  notwith- 
standing the  fact  that  it  retains  the 
benefits  of  the  transaction.  People 
v.  Brennan,  39  Barb.  (N.  Y.)  522. 

221  Argenti  v.  City  of  San  Fran- 
cisco, 16  Cal.  25;  San  Francisco  Gas 
Co.  v.  City  of  San  Francisco,  9  Cal. 
453-470. 


§  143  TO  INCUR  INDEBTEDNESS.  289 

take,  or  without  authority  of  law,  it  is  her  duty  to  refund  it — 
not  from  any  contract  entered  into  by  her  on  the  subject,  but 
from  the  general  obligation  to  do  justice  which  binds  all  per- 
sons, whether  natural  or  artificial.  If  the  city  obtain  other  prop- 
erty which  does  not  belong  to  her,  it  is  her  duty  to  restore 
it;  or  if  used  by  her,  to  render  an  equivalent  to  the  true  owner, 
from  the  like  general  obligation.  In  these  cases  she  does  not,  in 
fact,  make  any  promise  on  the  subject,  but  the  law,  which  al- 
ways intends  justice,  implies  one;  and  her  liability  thus  arising 
is  said  to  be  a  liability  on  an  implied  contract,  and  it  is  no  answer 
to  a  claim  resting  upon  a  contract  of  this  nature  to  say  that  no 
ordinance  has  been  passed  on  the  subject,  or  that  the  liability 
of  the  city  is  void  when  it  exceeds  the  limitation  of  $50,000  pre- 
scribed by  the  charter.  The  obligation  resting  upon  her  is 
imposed  by  the  general  law,  and  is  independent  of  any  ordinance 
and  the  restraining  clauses  of  the  charter.  It  would  be  indeed 
a  reproach  to  the  law,  if  the  city  could  retain  another's  prop- 
erty because  of  the  want  of  an  ordinance,  or  withhold  another's 
money  because  of  her  own  excessive  indebtedness.  In  reference 
to  money  or  other  property,  it  is  not  difficult  to  determine  in 
any  particular  case  whether  a  liability  with  respect  to  the  same 
has  attached  to  the  city.  The  money  must  have  gone  into  her 
treasury,  or  been  appropriated  by  her;  and  when  it  is  property 
other  than  money,  it  must  have  been  used  by  her,  or  be  under 
her  control.  But  with  reference  to  services  rendered,  the  case  is 
different.  Their  acceptance  must  be  evidenced  by  ordinance  to 
that  effect.  Their  acceptance  by  the  city  with  the  consequent  ob- 
ligation to  pay  for  them,  cannot  be  asserted  in  any  other  way. 
If  not  originally  authorized,  no  liability  can  attach  upon  any 
ground  of  implied  contract.  The  acceptance,  upon  which  alone 
the  obligation  to  pay  could  arise,  would  be  wanting."222  The 

222  San  Francisco  Gas  Co.  v.  City  effecting  a  compromise   of  the  mu- 

of  San  Francisco,  9  Cal.  453;  Argenti  nicipal  indebtedness, 

v.  City  of  San  Francisco,  16  Cal.  25;  In  Boyd  v.  Mill  Creek  School  Tp., 

City  of  Logansport  v.  Dykeman,  116  124    Ind.    193,   the  court   held   that 

Ind.  15.     Art.  13,  of  the  Constitution  where   a  debt  was   fraudulently  in- 

of    Indiana    limiting    municipal    in-  curred,   even   when  the  goods  were 

debtedness  affords  no  defense  to  an  retained  by  the  municipality,  no  ac- 

action  upon  a  contract  made  by  a  tion  could  be  maintained  to  recover 

city  to  pay  for  services  rendered  in  their  actual  value  in  a  suit  upon  the 

Abb.  Corp.— 19. 


290  POWERS.  §  143 

consideration  that  one  of  the  parties  to  the  transaction  is  a 
public  corporation  should  not  permit  it  to  rob  others  or  to  play 
fast  and  loose  with  contract  obligations.  A  rule  of  construction 
other  than  the  strict  ought  to  prevail  where  a  corporation  is 
endeavoring  to  extend  its  power  to  the  injury  of  others,  or  where 
it  sets  up  by  way  of  defense  to  an  action  brought  against  it  that 
it  has  itself  been  guilty  of  usurpation  of  power.223  And  the 
further  fact  should  not  be  forgotten  that  the  contract  or  other 
obligation  is  entered  into  on  behalf  of  the  corporate  body  by 
agents  elected  by  the  people  to  represent  them  and  bind  the  cor- 
poration during  official  life.  If  these  agents  dishonestly  or  im- 
prudently, or  perhaps  illegally,  so  far  as  the  manner  of  the  act 
is  concerned,  place  burdens  upon  their  principal,  this  of  itself 
should  be  no  excuse  for  the  failure  to  compensate  the  other  party 
to  the  transaction  for  that  of  value  with  which  he  has  parted,  or 
to  enforce  specific  contracts. 

In  applying  this  doctrine  of  implied  power  on  the  part  of  a 
public  corporation  to  incur  indebtedness  it  may  not  be  necessary 
for  the  courts  to  openly  and  arbitrarily  override  charter  or  con- 
stitutional provisions  or  to  hold  contrary  to  the  strict  rule  of 
construction.  In  considering  the  powers  exercised  by  corpora- 
certificate  of  indebtedness  originally  May  2,  1890,  to  contract  debts  bind- 
given.  ing  upon  municipalities  afterwards 

Lovejoy  v.  Inhabitants  of  Foxcroft,  formed  under  the  law,  held  not  to 
91  Me.  367.  A  town  without  special  exist.  The  city  was  nevertheless 
legislative  authority  can  borrow  thereafter  bound  to  pay  for  the  lum- 
money  to  pay  its  lawful  debts  or  ar-  her  bought  or  return  it,  and  upon 
range  for  a  refunding  of  its  indebted-  refusal,  became  liable  for  conversion, 
ness.  Town  of  Topsham  v.  Rogers,  42  Vt. 

Backman  v.  Town  of  Charlestown,  189.  A  purchase  of  supplies  held 
42  N.  H.  125.  Although  a  debt  was  ratified  by  the  officers  in  whom  the 
originally  contracted  without  author-  power  to  purchase  was  vested,  and 
ity  yet  the  use  of  the  supplies  fur-  therefore  became  a  binding  obliga- 
nished  constitutes  a  ratification  of  tion  against  the  municipality, 
the  original  act  and  the  town  is  Richmond  &  W.  P.  Land,  N.  &  I. 
bound.  Co.  v.  Town  of  West  Point,  94  Va. 

Bigelow  v.  Inhabitants  of  Perth  668.  Where  the  power  to  purchase 
Amboy,  25  N.  J.  Law  (1  Dutch.)  297;  real  estate  exists,  the  implied  power 
Oklahoma  City  v.  T.  M.  Richardson  will  follow  to  make  valid  non-nego- 
Lumber  Co.,  3  Okl.  5.  In  this  case  tiable  notes  or  evidences  of  indebted- 
the  power  of  provisional  govern-  nes  for  the  consideration. 
ments  in  the  Territory  of  Oklahoma  223  Bank  of  Chillicothe  v.  Town  of 
established  prior  to  Act  of  Congress,  Chillicothe,  7  Ohio  (pt.  2)  31. 


•§  144  TO  INCUR  INDEBTEDNESS.  291 

tioDS  either  public  or  private  we  have  the  classes  already  enu- 
merated. An  ultra  vires  act  of  a  corporation  is  one  beyond  or  in 
excess  of  its  legal  authority  or  power.  In  considering  the  char- 
acter of  an  act  whether  ultra  or  intra  vires  those  cases  where 
the  power  is  absolutely  lacking  or  wanting  must  be  distinguished 
from  those  cases  in  which  the  power  may  exist  for  designated 
purposes,  or  acts  done  may  be  valid  if  done  in  a  certain  manner, 
but  otherwise  not. 

A  corporation  may  be  authorized  to  exercise  certain  powers  or 
do  certain  acts  to  carry  out  certain  designated  purposes.  If 
these  are  exercised  or  done  for  a  different  purpose  or  in  excess 
of  the  designated  power,  the  act  is  not  questionable  because  of  a 
lack  of  power  but  on  account  of  the  distinction  between  a  want 
of  power  and  a  misuse  or  abuse  of  power.  Or  again  a  corpora- 
tion may  be  authorized  to  exercise  certain  powers  or  do  certain 
acts  which  are  valid  if  done  in  a  specific  manner,  but  otherwise 
not.  Here  we  have  a  distinction  and  a  difference  between  a  want 
of  power  and  a  want  of  necessary  formality  in  executing  a 
granted  power. 

In  applying  the  principle  of  the  implied  power  of  a  public  cor- 
poration to  incur  indebtedness,  advantage  is  taken  by  the  courts 
of  the  distinctions  suggested  in  the  preceding  paragraph,  and  a 
legal  reason,  in  addition  to  the  moral  one,  may  support  a  right- 
eous decision. 

§  144.    Manner  of  its  exercise;  body  authorized. 

A  public  corporation  may  be  possessed  of  the  power  to  incur 
indebtedness  derived  from  lawful  authority,  the  indebtedness 
however  will  be  valid  and  enforceable  only  when  contracted  by 
the  corporation  in  a  specified  manner  and  by  the  official  body  or 
agent  of  the  corporation  designated  by  law  to  act  in  a  particular 
instance  and  bind  the  corporation  by  such  action.  There  exist 
always  the  implied  limitation  that  the  indebtedness  must  be  in- 
curred for  a  public  purpose  which  will  be  considered  in  later  sec- 
tions, and  usually  constitutional  limitations  upon  the  amount  and 
the  particular  purpose  for  which  it  can  be  legally  contracted.224 

224  F.  C.  Austin  Mfg.  Co.  v.  Smith-  of  Melrose,  155  Mass.  587;  Tinkel  v. 

field  Tp..  21  Ind.  App.  609,  52  N.  E.  Griffin,    26   Mont.   426,   68  Pac.   859; 

1011;    Grady  v.   Fruit,  111  Ky.   100,  Read  v.  Atlantic  City,  49  N.  J.  Law, 

63  S.  W.  283;  Brown  v.  Inhabitants  558;   Jamaica  Sav.  Bank  v.  City  of 


292 


POWERS. 


144 


In  this  section  the  official  body  authorized  to  bind  the  corporation 
will  be  considered  and  the  questions  of  its  implied  power  to  set  in 
motion  within  its  discretion,  action  resulting  in  the  contraction  of 
a  legal  debt,  or  whether  the  power  can  be  exercised  only  pursuant 
to  direct  statutory  or  other  authority.  It  is  self-evident  that 
public  corporations  of  all  the  different  grades  are  represented 
in  particular  functions  they  possess  or  powers  they  may  exercise 
by  representative  bodies  or  officials.  A  municipal  corporation 
proper  may  have  as  one  of  its  subordinate  departments  a  school 
or  park  board,  police  or  fire  department.  In  matters  of  public 
education,  the  school  board  represents  and  is  authorized  to  en- 
gage in  contracts  or  incur  debts  binding  upon  its  principal.  It 
is  clearly  without  the  province  or  the  authority  of  a  school  board 
to  incur  indebtedness  binding  upon  the  municipality  in  support 
of  or  for  the  benefit  of  the  fire  or  police  departments.  Indebted- 
ness, therefore,  to  be  valid,  if  the  authority  to  incur  exists,  must 
be  contracted  by  the  particular  official  body  representing  the 
public  corporation  in  the  exercise  of  certain  of  its  duties.225 


New  York,  61  App.  Div.  464,  70  N. 
Y.  Supp.  967. 

225  Seward  County  Com'rs  v.  Aetna 
Life  Ins.  Co.,  90  Fed.  222;  Fitzgerald 
v.  Walker,  55  Ark.  148;  Milliard  v. 
Bunker,  68  Ark.  340;  Waldo  v.  Town 
of  Portland,  33  Conn.  363;  Whitney 
v.  City  of  New  Haven,  58  Conn.  450; 
Barnard  v.  Sangamon  County,  190 
[11.  116;  Smith  v.  Shawnee  County 
Com'rs,  21  Kan.  669;  Harrison  Coun- 
ty Ct.  v.  Smith's  Adm'r,  54  Ky.  (15 
B.  Mon.)  155;  Capmartin  v.  Police 
Jury,  23  La.  Ann.  190.  In  Louisiana 
"police  juries"  so-called,  have  usually 
the  power  to  contract  debts  obliga- 
tory on  a  parish,  if  in  the  same 
ordinance,  they  provide  means  for 
payment. 

Talbott  v.  Parish  of  Iberville,  24 
La.  Ann.  135;  Citizens'  Bank  v.  Town 
of  Jennings,  107  La.  547.  The  court 
said  "that  debts  contracted  (by  a  po- 
lice jury)  in  violation  of  the  above 
provision  were  stricken  with  nullity 


and  incapable  of  judicial  enforce- 
ment." 

Gray  v.  Bourgeois,  107  La.  671,  32 
So.  42;  Shea  v.  Town  of  Milford, 
145  Mass.  528,  14  N.  E.  764.  A  town 
committee  having  charge  of  erection 
of  a  building  was  held  to  have  pow- 
er to  act  by  agreement  of  the  mem- 
bers separately  obtained  and  that 
they  need  not  act  in  session  as  an  or- 
ganized body. 

Holderness  v.  Baker,  44  N.  H.  414; 
Redmon  v.  Chacey,  7  N.  D.  231,  73 
N.  W.  1081;  City  of  Philadelphia  v. 
Flanigen,  47  Pa.  21.  The  power  of 
expending  money  for  public  purposes 
by  municipal  corporations  was  lodg- 
ed, in  the  legislative  and  not  execu- 
tive authorities,  the  city  council 
therefore,  and  not  the  heads  of  de- 
partments, are  empowered  to  author- 
ize public  expenditures.  Barr  v.  City 
of  Philadelphia,  191  Pa.  438;  Jones 
v.  Town  of  Lind,  79  Wis.  64.  See, 
also,  the  following  cases  construing 


§  144 


TO  INCUR  INDEBTEDNESS. 


293 


It  is  also  generally  held  that  the  implied  power  does  not  exist 
on  the  part  of  public  officials  to  contract  indebtedness  of  their 
own  motion.  Especially  is  this  true  where  they  do  not  possess 
original  powers  of  administration.226  It  is  equally  true  as  to  the 
character  of  the  indebtedness  they  may  incur.  Possibly  tho 
power  does  exist  on  their  part  to  contract  a  temporary  in- 
debtedness to  carry  on  what  might  be  termed  the  ordinary 
running  or  operating  expenses  of  the  corporation,227  but  the 


the  powers  of  the  special  officials 
named  with  respect  to  the  incurring 
of  indebtedness. 

Town  or  township  officials:  Town 
of  Bloomfield  v.  Charter  Oak  Bank, 
121  U.  S.  121;  Ladd  v.  Town  of 
Franklin,  37  Conn.  53;  White  v. 
Town  of  Stamford,  37  Conn.  578; 
Farrel  v.  Town  of  Derby,  58  Conn. 
234;  Dibble  v.  Town  of  New  Haven, 
56  Conn.  199;  Town  of  Bruce  v. 
Dickey,  116  111.  527;  Reed  v.  Town 
of  Orleans,  1  Ind.  App.  25;  Boyd  v. 
Mill  Creek  School  Tp.,  114  Ind.  210; 
Bluffton  Corp.  v.  Studabaker,  106 
Ind.  129;  Dennett  v.  Nevers,  7  Me. 
(7  Greenl.)  399;  Willey  v.  Inhabit- 
ants of  Greenfield,  30  Me.  452;  Vose 
v.  Inhabitants  of  Frankfort,  64  Me. 
229;  Brown  v.  Inhabitants  of  Winter- 
port,  79  Me.  305;  Hosier  v.  Higgins 
Tp.  Board,  45  Mich.  340;  Wrought 
Iron  Bridge  Co.  v.  Jasper  Tp.,  68 
Mich.  441;  Boyce  v.  Auditor  Gener- 
al, 90  Mich.  314;  Evans  v.  Town  of 
Stanton,  23  Minn.  368;  Gifford  v. 
Town  of  White  Plains,  25  Hun  (N. 
Y.)  606;  Clark  v.  Saratoga  County 
Sup'rs,  107  N.  Y.  553;  Maneval  v. 
Jackson  Tp.,  141  Pa.  426;  Clay  v. 
Wright,  44  Vt.  538;  Judevine  v. 
Town  of  Hardwick,  49  Vt.  180;  Dav- 
enport v.  Town  of  Johnson,  49  Vt. 
403;  Town  of  Remington  v.  Ward,  78 
Wis.  539. 

Municipal  officers:  Allen  v.  In- 
tendant  &  Councilmen  of  La  Fayette, 


89  Ala.  641;  Fitzgerald  v.  Walker,  55 
Ark.  148;  In  re  City  of  Cedar  Rap- 
ids, 85  Iowa,  39;  Turner  v.  Brigan- 
tine  Borough,  54  N.  J.  Law,  476; 
In  re  Village  of  Plattsburgh,  157  N. 
Y.  78;  Lynchburg  &  D.  R.  Co.  v. 
Person  County  Com'rs,  109  N.  C.  159. 

County  officials:  Sullivan  v.  State, 
121  Ind.  342;  Vigo  County  Com'rs  v. 
Weeks,  130  Ind.  162;  Butler  v.  Sulli- 
van County,  108  Mo.  630;  Hamilton 
County  Com'rs  v.  Webb,  47  Kan.  104. 

School  officials:  School  Directors 
v.  Sippy,  54  111.  287;  Clark  v.  School 
Directors,  78  111.  474;  Adams  v. 
State,  82  111.  132;  Folsom  v.  School 
Directors,  91  111.  402;  Noble  School 
Furniture  Co.  v.  Washington  School 
Tp.,  4  Ind.  App.  270;  Johnson  School 
Tp.  v.  Citizens'  Bank,  81  Ind.  515; 
Miller  v.  White  River  School  Tp.,  101 
Ind.  503;  Union  School  Tp.  v.  First 
Nat.  Bank  of  Crawfordsville,  102  Ind. 
464;  State  v.  Hawes,  112  Ind.  323; 
Boyd  v.  Mill  Creek  School  Tp.,  114 
Ind.  210;  Litten  v.  Wright  School 
Tp.,  127  Ind.  81. 

226  police   Jury  v.   Britton,    82   U. 
S.   (15  Wall.)  566;  People  v.  Albany 
County  Sup'rs,  28  How.  Pr.  (N.  Y.) 
22;  Sterling  v.  Parish  of  West  Feli- 
ciana,  26  La.  Ann.  59. 

227  white  v.  Town  of  Decatur,  119 
Ala.   476.     Ordinarily  municipal   ex- 
penditures are  within  the  sound  dis- 
cretion of  the  municipal  authorities. 
In  re  Contracting  of  State  Debt  by 


294 


POWERS. 


§   144 


power  does  not  exist  to  issue  negotiable  bonds  payable  to  bearer 
or  other  evidences  of  indebtedness  negotiable  in  their  charac- 
ter.228 The  manner  of  the  incurring  of  indebtedness  may  .also  be 
established  by  the  charter  or  the  general  statutes  of  the  state, 
and  if  the  legal  authority  requires  the  performance  of  certain 
ministerial  acts  by  public  officials  the  indebtedness  may  be  held 
invalid  if  contracted  without  the  performance  of  such  acts;2-'9 
or  possibly  the  electors  of  the  corporation,  during  some  part  of 
the  proceedings,  having  for  their  purpose  the  incurring  of  the 
indebtedness,  must  pass  upon  the  question,  and  if  indebtedness  is 
incurred  without  the  submission  to  the  electors  at  the  proper 
time  the  same  legal  result  will  follow.2*0 


Loan,  21  Colo.  399;  Barrett  v.  City  of 
East  St.  Louis,  89  111.  175;  Musgrove 
v.  Kennell,  23  N.  J.  Eq.  (8  C.  E. 
Green)  75.  Township  committee  has 
no  power  to  borrow  money  on  the 
faith  of  the  township  or  authorize 
this  to  be  done.  However,  if  the 
members  of  the  township  committee 
can  induce  third  parties  to  loan 
money  necessary  for  proper  town- 
ship purposes,  if  this  debt  was  sub- 
sequently adopted  by  the  town,  it 
then  becomes  a  valid  indebtedness. 

In  Van  Dusen  v.  State,  11  S.  D. 
318,  indebtedness  for  fuel  furnished 
an  agricultural  college  held  valid. 
At  the  time  of  its  contraction  the 
indebtedness  was  within  the  legal 
limit.  Under  a  subsequent  misap- 
propriation of  funds  appropriated 
for  specific  purposes,  the  debt  in 
question,  with  other  subsequently  in- 
curred obligations,  exceeded  the  lim- 
it. The  misappropriation  cannot  af- 
fect the  legality  of  the  debt  in  ques- 
tion. 

Hull  v.  Ames,  26  Wash.  272.  A 
city  can  legally  incur  indebtedness  in 
excess  of  the  constitutional  limit 
where  such  indebtedness  is  used  in 
payment  of  the  salaries  of  its  city 
officers,  the  court  holding  that  such 


salaries  were  necessary  expenses  in- 
curred in  maintaining  the  existence 
of  a  municipality. 

228  Breaux  v.   Iberville  Parish,  23 
La.  Ann.  232;  Marionneaux  v.  Police 
Jury  of  Iberville,  23  La.  Ann.  251; 
Cheeney  v.  Inhabitants  of  Brookfield, 
60  Mo.  53;  Stewart  v.  Otoe  County, 
2  Neb.  177. 

229  Higgins  v.  City  of   San   Diego 
Water  Co.,  118  Cal.  524,  45  Pac.  824; 
Pollok  v.  City  of  San  Diego,  118  Cal. 
593;   People  v.  Chicago  &  A.  R.  Co., 
Ib4  111.  51;  Shorten  v.  Green  County, 
22   Ky.    L.   R.    1010,   59    S.   W.    522; 
Hubbard    v.   Woodsum,    87    Me.    88; 
Hall     v.     Anne     Arundel     County 
Com'rs,  94  Md.  282;   Sanborn  v.  Rice 
County    Com'rs,    9    Minn.    273    (Gil. 
258.)     An  act  of  the  legislature  of 
the  state  of  Minnesota  requiring  cer- 
tain ministerial  acts  held  in  contra- 
vention of  the  state  constitution  as 
being  an  attempt  to  confer  judicial 
power  on  the  commissioners  named 
in  the  act.    Shuttuck  v.  Smith,  6  N. 
D.  56. 

230  Dyer   v.    Erwin,    106    Ga.    845; 
Strodtman  v.  Menard  County,  56  111. 
App.  120;    Gray  v.  Mount,  45   Iowa, 
591.    A  proposition  for  the  outlay  of 
money    submitted    to    the    electors 


§  145 


TO  INCUR  INDEBTEDNESS. 


295 


§  145.    The  power  limited  by  the  purpose  or  use  of  funds  to  b* 
raised. 

Limitations  upon  the  power  of  a  public  corporation  to  incur 
indebtedness  may  exist  either  as  an  inherent,  implied,  or  funda- 
mental principle  of  law  or  as  a  written  and  express  restriction 
found  in  the  charter  of  the  corporation,  the  statutes,  or  the  con- 
stitution of  the  state.  There  is  found,  as  an  implied  and  inherent 
limitation  on  the  power  of  every  public  corporation  to  incur  a 
debt,  the  one,  namely,  that  the  purpose  for  which  it  may  be 
contracted  or  the  uses  to  which  the  funds  realized  shall  be  put 
must  be  public  in  their  character.  This  limitation  impliedly 
and  inherently  exists,  based  upon  differences  between  a  public 
and  private  corporation  suggested  in  a  preceding  section.231  A 
public  corporation  is  an  agency  of  the  government,  an  aid  to  the 


must  be  so  worded  as  to  give  them 
a  real  choice. 

Grady  v.  Pruitt,  23  Ky.  L.  R. 
506,  63  S.  W.  283;  Tinkel  v.  Griffin, 
26  Mont.  426,  68  Pac.  859.  Where  a 
majority  of  the  electors  voting  at 
elections  is  necessary  to  contract 
valid  indebtedness,  it  can  be  created 
under  the  favorable  action  of  a  ma- 
jority of  those  voting  upon  that  par- 
ticular question,  although  such  num- 
oer  was  not  a  majority  of  all  the 
votes  cast  at  the  election. 

Galloway  v.  Jenkins,  63  N.  C.  147; 
Theis  v.  Washita  County  Com  rs,  9 
Okl.  643;  Shaw  v.  Statler,  74  Cal. 
258;  Gavin  v.  City  of  Atlanta,  86  Ga. 
132;  Broadfoot  v.  City  of  Fayette- 
ville,  128  N.  C.  529;  Appeal  of  Lu- 
burg  (Pa.)  17  Atl.  245;  Keller  v. 
City  of  Scranton,  202  Pa.  586;  Met- 
calfe  v.  City  of  Seattle,  1  Wash.  St. 
297;  State  v.  Snodgrass,  1  Wash.  St. 
305. 

231  Hackett  v.  City  of  Ottawa,  99  U. 
S.  86.  The  development  of  the  nat- 
ural resources  of  a  city  for  manu- 
facturing purposes  held  to  be  with- 
in a  public  and  corporate  purpose. 


Town  of  Bloomington  v.  Lillard,  Z9 
111.  App.  616. 

See  §  140. 

People  v.  Chicago  &  A.  R.  Co.,  19* 
111.  51.  Town  meeting  not  author- 
ized to  raise  money  under  provisions 
of  the  revised  statutes  "for  town 
purposes"  without  defining  such  pur- 
poses and  affirmatively  showing  they 
are  such  as  authorized  by  law. 

Frantz  v.  Jacob,  88  Ky.  525; 
Fuller  v.  Inhabitants  of  Groton,  77 
Mass.  (11  Gray)  340;  Rexroth  v. 
Ames,  55  N.  J.  Law,  509,  26  Atl.  787. 
The  power  of  a  township  to  raise 
money  for  "incidental  purposes" 
was  denied,  without  specifying  such 
purposes.  The  court  held  that  un- 
der such  general  terms  the  township 
might  raise  funds  to  be  used  for 
purposes  not  authorized. 

Thrift  v.  Town  of  Elizabeth  City 
Com'rs,  122  N.  C.  31,  30  S.  E.  349; 
Municipal  Security  Co.  v.  Baker 
County,  33  Or.  338,  54  Pac.  174.  Even 
where  expenditures  are  public  in 
their  character,  the  amount  of  in- 
debtedness incurrable  is  limited  by* 
constitutional  provisions. 


296 


POWERS. 


145 


sovereign  in  carrying  out  its  purposes  and  performing  duties 
which  are  public  in  their  nature  and  intended  to  protect  and 
benefit  society  at  large,  the  community  rather  than  the  individ- 
ual. If  the  individual  is  benefited  by  the  establishment  and 
maintenance  of  an  organized  government  it  is  not  because  of 
the  purpose  to  directly  accomplish  that  result  but  because  the 
individual  indirectly  and  as  a  member  of  a  community  or  so- 
ciety shares  in  the  benefits  and  advantages  of  that  government. 
To  the  government  belongs  the  exercise  of  certain  powers  and 
the  performance  of  certain  duties.  There  can  be  no  question 
of  the  character  of  certain  of  these  powers  and  duties.  The  ex- 
ercise of  the  police  power,  the  maintenance  of  government,  the 
construction  of  public  buildings,  the  provision  for  a  system  of 
public  education,  and  others,  will  be  recognized  clearly  as  gov- 
ernmental duties.232  Other  acts  will  be  clearly  recognized  as  not 


232  Chief  Justice  Black  in  the  case 
of  Sharpless  v.  City  of  Philadelphia, 
21  Pa.  147,  speaking  of  the  pur- 
poses for  which  taxes  could  be  law- 
fully levied,  has  given  a  compre- 
hensive statement  of  public  purpos- 
es. He  said,  as  quoted  in  Simonton 
Mun.  Bonds,  §  35 :  "Taxes  may  be  im- 
posed for  roads  of  all  kinds,  canals, 
and  bridges,  that  there  may  be  fa- 
cilities for  transportation  of  freight 
and  for  travel;  for  public  schools 
and  colleges,  that  the  people  may  be 
educated;  for  public  libraries,  that 
their  means  of  improvement  may  be 
increased;  for  the  poor,  the  dumb, 
the  blind,  the  insane,  lest  they  suf- 
fer from  want;  for  the  police  of  the 
state,  in  regulations  for  the  pres- 
ervation of  health  or  the  detection 
of  crime;  for  courts  of  law,  that 
individual  rights  may  be  protected 
and  enforced,  and  that  crime,  when 
detected,  may  receive  its  fitting  pun- 
ishment; for  the  preservation  of 
peace  and  the  protection  of  the  coun- 
try from  foreign  enemies;  to  aid,  en- 
courage and  stimulate  commerce,  de- 
mestic  and  foreign,  by  the  estab- 


lishment of  mints,  postage  system 
and  maintaining  navies  to  keep  open 
the  highways  of  nations;  to  encour- 
age citizens  in  the  defense  of  their 
country,  by  suitable  rewards  and 
mementoes  for  past  services  in  times 
of  war,  or  by  bounties  for  enlist- 
ment for  future  services;  and  for 
the  promotion  of  arts  and  sciences." 
In  Simonton,  Mun.  Bonds,  §  36, 
is  found  an  interesting  discussion 
of  a  public  purpose.  He  says  in 
part:  "While  no  definition  can  be 
given  that  will  exactly  distinguish 
those  purposes  which  are  public  from 
those  that  are  private,  it  may  safe- 
ly be  said  that  the  purpose  is  pub- 
lic when  all  the  inhabitants  are  in- 
terested in  the  work,  as  public 
schools,  where  the  children  of  any 
inhabitant  may  attend;  libraries,  be- 
cause for  the  education  of  the  peo- 
ple, and  open  to  all  alike,  water- 
works controlled  by  the  municipal- 
ity, because  every  resident  may  have 
water;  almshouses  and  insane  in- 
stitutions, because  open  to  all  who 
are  unfortunate  enough  to  require 
their  aid  or  care,  likewise  hospitals 


TO  INCUR  INDEBTEDNESS. 


297 


belonging  to  this  category,  and  there  are  still  other  powers  and 
duties  which  it  is  difficult  sometimes  to  assign  to  either  class  and 
which  lie  along  the  dividing  line  between  the  two.  It  is  clearly 
beyond  the  power  of  a  public  corporation  or  the  state  itself  to 
appropriate  public  property  for  private  purposes  or  to  expend 
public  moneys  for  the  personal  advantage  and  benefit  of  private 
individuals  or  personal  and  private  enterprises,  such  funds  raised 
through  a  system  of  public  taxation  designed  for  the  benefit  and 
advantage  of  the  public  at  large,  the  legality  of  the  system 
based  upon  the  idea  that  the  use  of  the  proceeds  shall  be  public.233 


for  same  reason;  *  *  *  police 
and  fire  departments,  as  well  as  the 
necessary  buildings  to  house  and 
localize  them,  for  the  protection  and 
convenience  of  the  public;  courts  to 
enforce  the  law;  and  so  one  can 
enumerate  all  the  known  public  con- 
veniences and  necessities  to  be  found 
in  a  city,  county  and  town;  but  in 
all  the  public  works  or  purposes  it 
will  be  found  that  the  municipality 
has  the  care  and  supervision  of  the 
same,  and  that  the  humblest  citizen 
is  entitled  to  the  same  enjoyment, 
or  same  care  and  protection  and  in 
the  same  respect,  as  the  most  in- 
fluential. The  distinguishing  feature 
between  a  private  and  a  public  work 
or  purpose  is  that,  in  the  former 
case,  the  supervision  and  gains  are 
vested  in,  and  received  by,  but  a 
few  of  the  inhabitants,  and  some- 
times by  nonresidents  of  the  munici- 
pality, while  in  a  public  work  or 
purpose  the  care  and  supervision 
are  lodged  in  public  officers,  and 
the  gains,  if  any,  belong  to  the 
municipality." 

233  "The  legislature,"  said  Chief 
Justice  Black  in  Sharpless  v.  City 
of  Philadelphia,  21  Pa.  147,  59  Am. 
Dec.  759,  "has  no  constitutional  right 
to  create  a  public  debt,  or  to  lay  a 
tax,  or  to  authorize  any  municipal 
corporation  to  do  it,  in  order  to 


raise  funds  for  a  mere  private  pur- 
pose. No  such  authority  passed  to 
the  general  assembly  by  the  general 
grant  of  legislative  power.  This 
would  not  be  legislation.  Taxation 
is  a  mode  of  raising  revenue  for 
public  purposes.  When  it  is  prosti- 
tuted to  objects  in  no  way  connect- 
ed with  the  public  interests  or  wel- 
fare, it  ceases  to  be  taxation  and 
becomes  plunder." 

Burroughs,  Pub.  Secur.  p.  388. 
"In  those  cases  where  the  purpose 
is  declared  to  be  public,  such  as 
highways,  state-houses  and  other 
public  buildings,  railroads,  canals, 
schools,  and  drainage  for  health,  the 
benefit  is  direct  to  all  the  people 
of  the  state.  The  construction  of 
such  works,  or  the  doing  of  these 
acts,  is  a  duty  of  the  state  to  all 
the  people  of  the  state.  The  pur- 
pose, the  object,  is  governmental, 
although  incidentally  individuals 
may  be  benefited;  while  in  those 
cases  where  the  purpose  is  declared 
to  be  private,  the  object  of  the  act 
was  the  benefit  of  individuals,  al- 
though incidentally  the  public  was 
benefited.  When  the  purpose  is  a 
public  or  governmental  one,  the 
benefit  to  which  the  citizen  is  en- 
titled is  one  that  he  may  claim 
for  himself — he  can  lay  his  hand 
upon  it  himself.  For  instance,  the 


298 


POWERS. 


145 


The  character  of  certain  uses  for  which  public  moneys  may  be 
expended  is  established  beyond  question  as  well  as  certain  pur- 
poses to  which  they  shall  not  be  put.  It  is  impossible  to  give  an 
exact  definition  of  public  purpose.  Whether  the  purpose  is  a 
public  one  for  the  expenditure  of  moneys  is  a  question  exclu- 
sively for  the  courts  to  determine.  Legislative  bodies  cannot  be 
the  judges  of  their  own  infractions  of  fundamental  law.234 


right  to  use  the  highways  or  rail- 
ways, or  to  use  the  public  schools. 
He  asserts  this  privilege  for  him- 
self. He  is  not  dependent  on  the 
action  of  a  private  owner  of  such  in- 
stitutions, who  may  grant  or  with- 
hold the  privilege  claimed.  In  the 
case  of  the  various  corporations, 
when  the  purpose  was  said  to  be 
private,  the  privilege  of  using  the 
lumber  mills  and  other  factories 
was  one  that  might  be  granted  or 
refused  by  the  owner,  and  for  a 
refusal  there  was  no  remedy." 

234  Burroughs,  Pub.  Secur.  pp.  367, 
368;  20  Am.  &  Eng.  Enc.  Law  (2d 
Ed.)  p.  1084,  gives  in  a  negative 
way  a  good  definition  of  a  public 
purpose.  "The  promotion  of  the 
interests  of  individuals,  either  in 
respect  of  property  or  of  business, 
although  it  may  result  incidentally 
in  the  advancement  of  the  public 
welfare,  is  in  its  character  essen- 
tially a  private  and  not  a  public 
object.  However  certain  and  great 
the  resulting  good  to  the  general 
public,  it  does  not  by  reason  of  its 
comparative  importance,  cease  to  be 
incidental.  The  incidental  advan- 
tage to  the  public  which  results  from 
the  promotion  of  private  interests 
and  the  prosperity  of  private  enter- 
prises or  business  does  not  justify 
their  aid  by  the  use  of  public  money, 
raised  by  taxation,  or  for  which 
taxation  may  become  necessary." 

Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 


664.  Justice  Miller  in  delivering  the 
opinion  of  the  court  said:  "To  lay 
with  one  hand  the  power  of  the 
government  on  the  property  of  the 
citizen  and  with  the  other  bestow 
it  upon  favored  individuals,  to  aid 
private  enterprises  and  build  up  pri- 
vate fortunes,  is  none  the  less  a  rob- 
bery because  it  is  done  under  forms 
of  law  and  is  called  taxation.  This 
is  not  legislation;  it  is  a  decree  un- 
der legislative  forms."  He  also 
said:  "And  in  deciding  whether,  in 
the  given  case,  the  object  for  which 
the  taxes  are  assessed  falls  on  the 
one  side  or  the  other  of  this  line 
(between  public  or  private  purpose), 
they  must  be  governed  mainly  by 
the  course  and  usage  of  the  govern- 
ment, the  objects  for  which  taxes 
have  been  customarily  and  by  long 
course  of  legislation  levied,  what 
objects  or  purposes  have  been  con- 
sidered necessary  to  the  support  and 
for  the  proper  use  of  the  govern- 
ment, whether  state  or  municipal. 
Whatever  lawfully  pertains  to  this, 
and  is  sanctioned  by  time  and  the 
acquiescence  of  the  people,  may  well 
be  held  to  belong  to  the  public  use, 
and  proper  for  the  maintenance  of 
good  government,  though  this  may 
not  be  the  only  criterion  of  right- 
ful taxation." 

Weismer  v.  Village  of  Douglas,  64 
N.  Y.  91,  where  Justice  Folger  dis- 
tinguishes a  public  from  a  private 
purpose.  "It  may  also  be  conceded 
that  this  is  a  public  purpose  from 


§  146 


TO  INCUR  INDEBTEDNESS. 


299 


The  term  can  best  be  defined  by  giving  concrete  illustrations 
of  expenditures  which  courts  have  authorized  as  having  such 
a  character. 

§  146.    The  construction  of  buildings  a  public  purpose. 

The  cases  hold  without  dissent  that  public  moneys  expended 
in  the  construction  of  buildings  for  use  by  government  officials 
or  departments  in  the  performance  of  their  public  or  govern- 
mental duties  is  a  proper  and  legal  expenditure  for  a  "public 
purpose,"  and  if  such  buildings  are  constructed  in  a  lawful  man- 
ner and  upon  legal  authority,  the  indebtedness  incurred  by  the 
corporation  is  a  valid  one  and  capable  of  enforcement.  The 
power  to  construct  public  buildings  is  considered  an  implied  one 
not  only  as  necessary  to  corporate  existence  but  also  as  a  proper 
and  convenient  means  for  carrying  into  effect  governmental  pow- 
ers expressly  granted.  School  houses,235  town  halls,-36  court 


the  attainment  of  which  will  flow 
some  benefit  or  convenience  to  the 
public,  whether  of  the  whole  com- 
monwealth or  of  a  circumscribed 
community.  In  this  latter  case, 
however,  the  benefit  or  convenience 
must  be  direct  and  immediate  from 
the  purpose,  and  not  collateral,  re- 
mote or  consequential.  It  must  be 
a  benefit  or  convenience  which  each 
citizen  of  the  community  affected 
may  lay  his  own  hand  to  in  his  own 
right,  and  take  unto  his  own  use 
at  his  own  option,  upon  the  same 
reasonable  terms  and  conditions  as 
any  other  citizen  thereof.  He  may 
not  be  made  to  depend  for  it  on 
the  spontaneous  action  of  others,  or 
to  receive  it  in  uncertain  degree  or 
manner  or  roundabout  way,  or 
hampered  with  discriminating  dis- 
tinctions and  conditions." 

235  Allen  v.  Intendant  &  Council- 
men  of  Lafayette.  89  Ala.  641;  Tur- 
ney  v.  Town  of  Bridgeport,  55  Conn. 
412.  The  Court  here  holds  that 
though  the  committee  might  deem 


it  necessary  to  expend  more  than 
was  voted,  they  would  not  be  al- 
lowed to  do  so.  "We  think  it  clear 
beyond  discussion  that  when  a  town, 
by  legal  vote,  limits  the  amount  of 
an  appropriation  for  a  particular 
and  specified  purpose,  and  by  the 
same  vote  appoints  a  committee  to 
carry  that  purpose  into  effect,  such 
committee  has  no  implied  authority 
to  involve  the  town  in  any  addi- 
tional expense  whatever." 

City  of  Cartersville  v.  Baker,  73 
Ga.  686.  The  power  to  build  a 
school  house  exists  where  authority 
is  conferred  "to  aid  in  the  building 
up  of  such  schools."  Hensly  Tp.  v. 
People,  84  111.  544;  Marks  v.  Pur- 
due University,  37  Ind.  155;  Bick- 
nell  v.  Widner  School  Tp.,  73  Ind. 
501;  Grady  v.  Landram,  23  Ky.  L. 
R.  506,  63  S.  W.  284.  See  11  L.  R.  A. 
123;  Merrick  v.  Inhabitants  of  Am- 
herst,  94  Mass.  (12  Allen)  500;  Gor- 
don v.  Cornes,  47  N.  Y.  613;  East 
Tennessee  University  v.  City  of 
Knoxville,  65  Tenn.  (6  Baxt.)  166. 


300                                                   POWERS.  §   146 

houses  and  jails,237  hospitals,  poorhouses,  public  markets,238 
state238  and  county  buildings,  may  be  properly  erected  through 
the  expenditure  of  public  funds. 

ass  people    v.    Harris,    4    Cal.    9;  benefit   of   third   parties.     Such   ob- 

Greeley  v.  People,  60  111.  19;  Wood-  jects  are  foreign  to  the  purpose  for 

bury  v.  Inhabitants  of  Hamilton,  23  which  counties  are  organized,  and, 

Mass.   (6  Pick.)   101;   Friend  v.  Gil-  if  permitted,  would  open  the  door  to 

bert,  108  Mass.  408;   Foster  v.  City  entanglements    and    abuses    against 

of  Worcester,  164  Mass.  419;  Clarke  which  the  public  should  be,  and  is, 

v.    Inhabitants   of    Town   of  Brook-  by  law  protected."     Citing  Williams 

field,  81  Mo.  503;   Bates  v.  Bassett,  v.    Lash,    8    Minn.    496    (Gil.    441); 

60    Vt.  530.  James  v.  Wilder,  25  Minn.  305;  Hef- 

237  Pauly  Jail-Bldg.  &  Mfg.  Co.  v.  ferlin   v.    Chambers,    16   Mont.    349, 

Kearney    County    Com'rs,    68    Fed.  40  Pac.  787;  Roach  v.  O'Dell,  33  Hun 

171;    Lewis  v.   Lofley,    92    Ga.   804;  (N.    Y.)     320;    Black    v.    Buncombe 

Jackson  County  v.   Rendleman,  100  County    Com'rs,    129   N.   C.   121,    39 

111.  379;  Rock  v.  Rinehart,  88  Iowa,  S.  E.  818. 

37;   City  of  Leavenworth  v.  Norton,  2is  See  authorities  cited   in   notes 

1  Kan.  432;   State  v.  Marion  County  23    Am.    St.    Rep.    581-584;    25    Am. 

Com'rs,    21    Kan.    419;    Johnson    v.  St.  Rep.  887,  and  85  Am.  Dec.  286- 

Wilson  County  Com'rs,  34  Kan.  670;  289;    Smith  v.  City  of  Newbern,  70 

Callam  v.  City  of  Saginaw,  50  Mich.  7.  N.  C.  14;  Wade  v.  City  of  New  Bern, 

Borough   of   Henderson   v.   Sibley  77  N.  C.  460.     See,  also,  cases  cited 

County,   28   Minn.   515.     The   Court  under  §  134. 

here  say,  "The  corporate  powers  of  239  state  v.  McGraw,  13  Wash.  311; 
counties  are  confined  to  such  pow-  Shannon  v.  City  of  Huron,  9  S.  D. 
ers  as  are  expressly  granted,  *  *  *  356,  69  N.  W.  598.  A  city  has  no 
and  the  county  commissioners  are  authority  to  incur  indebtedness  to 
confined  to  the  duties  and  powers  pay  the  expenses  of  a  campaign 
directly  conferred,  or  in  like  man-  having  for  its  purpose  its  selection 
ner  clearly  implied.  The  general  as  the  capital  of  the  state.  The 
power  of  a  county  to  make  contracts  court  say:  "Plaintiffs,  the  capital 
is  confined  to  the  property  and  busi-  commission,  and  all  other  persons 
ness  of  the  county;  and  the  uses  to  dealing  with  the  officers  of  the  mu- 
which  a  county  may  put  real  es-  nicipality  had  notice  and  were  char- 
tate  as  to  provide  a  suitable  court  ged  with  a  knowledge  of  the  law, 
house,  jail,  offices  and  other  neces-  under  the  limitations  and  restric- 
sary  buildings.  It  may  not  erect  tions  of  which  no  liability  could  be 
buildings  for  the  use  of  other  mu-  created  or  debt  incurred  against  the 
nicipal  corporations,  or  for  any  third  city  of  Huron  for  printing  capital 
party.  It  may  sell  and  convey  real  campaign  literature  and  the  war- 
estate  not  necessary  to  its  use,  but  rants  when  issued  were  void  in  toto. 
it  may  not  improve  it  for  the  ac-  *  *  *  As  a  municipal  corporation 
commodation  of  third  parties,  nor  is  forbidden  by  law,  and  has  no 
enter  into  contracts  by  which  it  vested  right  or  inherent  power  to 
shall  bind  itself  to  hold  it  for  the  contract  debts  and  issue  evidences 


§  146a 


TO  INCUR  INDEBTEDNESS. 


301 


§  146a.    Illustrations  of  a  "public  purpose"  continued;  the  sup- 
port of  the  poor ;  water  supply. 

It  is  clearly  within  the  province  of  a  government  to  care 
for  and  support  its  indigent,  infirm,  or  the  suffering.2*0  It  is 
also  clearly  within  the  limits  of  a  governmental  or  a  public  pur- 
pose to  care  for,  maintain  and  protect  the  public  health  and 
safety.  Modern  authorities  assume  that  one  of  the  agencies 
most  conducive  to  the  maintenance  and  protection  of  the  pub- 
lic health  is  a  system  by  which  a  sufficient  supply  of  pure 
and  wholesome  water  may  be  furnished  to  a  community.  The 
expenditures  of  public  moneys  therefore  for  the  establishment 
and  maintenance  of  a  system  of  water  supply  is  now  consid- 
ered legal,  such  use  or  purpose  being  a  public  one  and  with- 
in the  power  of  the  corporation.241  That  a  certain  expend- 


thereof  to  advance  the  interests  of 
individuals,  no  taxpayer  of  the  city 
of  Huron  can  be  compelled  to  con- 
tribute money  for  the  purpose  of 
promoting  a  capital  campaign  how- 
ever much  the  inhabitants  of  the 
city  might  be  personally  benefited." 

2*0  People  v.  Emigration  Com'rs, 
15  How.  Pr.  (N.  Y.)  177;  Trumbull 
v.  Moss,  28  Conn.  253;  Town  of  Marl- 
borough  v.  Town  of  Chatham,  50 
Conn.  554;  La  Salle  County  Sup'rs 
v.  Town  of  South  Ottawa,  12  111. 
480;  Seagraves  v.  City  of  Alton,  13 
111.  366;  Perry  County  v.  City  of 
De  Quoin,  99  111.  479;  Inhabitants 
of  Granville  v.  Inhabitants  of  South- 
hampton,  138  Mass.  256;  Grossman 
v.  New  Bedford  Inst.  for  Savings, 
160  Mass.  503;  City  of  Moultonbor- 
ough  v.  •  City  of  Tuftonborough,  43 
N.  H.  316;  In  re  McFarlan,  2  Johns. 
Ch.  (N.  Y.)  440;  Goodale  v.  Law- 
rence, 88  N.  Y.  513;  Overseers  of 
Milton  v.  Overseers  of  Williamsport, 
9 -Pa.  46;  Overseers  of  Poor  of  Nip- 
penose  Tp.  v.  Overseers  of  Poor  of 
Jersey  Shore,  48  Pa.  402;  Hamlin 
County  v.  Clark  County,  1  S.  D.  131. 

2*1  NPW  Orleans  Water-Works  Co. 


v.  Rivers,  115  U.  S.  674;  National 
foundry  &  Pipe  Works  v.  Oconto 
Water  Co.,  52  Fed.  29;  Andrews  v. 
National  Foundry  &  Pipe  Works  (C. 
C.  A.)  61  Fed.  782;  Fergus  Falls 
Water  Co.  v.  City  of  Fergus  Falls,  65 
Fed.  586;  City  of  Helena  v.  Mills,  94 
Fed.  916.  A  contract  obligation  for 
the  supply  of  water  furnished  for  mu- 
nicipal purposes  when  in  excess  of 
the  constitutional  limit  of  indebted- 
ness cannot  be  enforced,  the  court 
holding  that  such  contract  obliga- 
tion is  a  debt  within  the  meaning  of 
the  limitation. 

Little  Falls  Elec.  &  Water  Co.  v. 
City  of  Little  Falls,  102  Fed.  663; 
Anoka  Water-Works,  Elec.  Light  & 
P.  Co.  v.  City  of  Anoka,  109  Fed. 
580;  City  of  Ft.  Madison  v.  Ft. 
Madison  Water  Co.,  110  Fed.  901; 
affirmed  (C.  C.  A.)  114  Fed.  292; 
Fidelity  Trust  &  Guaranty  Co.  v. 
Fowler  Water  Co.,  113  Fed.  560; 
Stein  v.  City  of  Mobile,  24  Ala.  591; 
Wells  v.  City  of  Atlanta,  43  Ga.  67; 
Ford  v.  City  of  Cartersville,  84  Ga. 
213;  Murphy  v.  City  of  Waycross, 
90  Ga.  36;  City  Council  of  Dawson 
v.  Dawson  Water-Works  Co..  106  Ga. 


302 


POWERS. 


§   146b 


iture  may  have  for  its  purpose  the  furnishing  of  a  water  sup- 
ply does  not  necessarily  make  it  valid.  A  constitutional  or 
charter  limitation  upon  the  amount  of  municipal  indebtedness 
controls  always  independent  of  the  purpose  for  which  such  in- 
debtedness is  incurred.  Purpose  or  use  does  not  in  all  cases 
determine  its  validity. 

The  authorities  referred  to  in  this  section  and  the  notes  are 
considered  abstractly  without  regard  to  such  limitations.  Some 
of  the  cases  cited,  it  will  be  found  upon  an  examination,  hold  the 
indebtedness  invalid  not  because  of  its  purpose  but  on  account  of 
a  constitutional  limitation. 

§  146b.    "Public  purposes"  continued;  light. 

In  a  case  in  the  supreme  court  of  the  United  States  the  court 
held  in  construing  an  exclusive  contract  for  the  use  of  the  streets 


696;  Button  v.  City  of  Aurora,  114 
111.  138;  Culbertson  v.  City  of  Ful- 
ton, 127  111.  30;  Prince  v.  City  of 
Quincy,  128  111.  443;  City  of  Val- 
paraiso v.  Gardner,  97  Ind.  1; 
Schneck  v.  City  of  Jeffersonville, 
152  Ind.  204;  Grant  v.  City  of  Daven- 
port, 36  Iowa,  396;  Burlington  Water 
Co.  v.  Woodward,  49  Iowa,  61;  City 
of  Clinton  v.  Walliker,  98  Iowa,  655; 
Allen  v.  City  of  Davenport,  107 
Iowa,  90;  Burlington  Water  Works 
Co.  v.  City  of  Burlington,  43  Kan. 
725;  State  v.  Caffery,  49  La.  Ann. 
1748;  Smith  v.  Inhabitants  of  Ded- 
ham,  144  Mass.  177;  Hale  v.  Hough- 
ton,  8  Mich.  458;  Niles  Waterworks 
v.  City  of  Niles,  59  Mich.  311;  Farr 
v.  City  of  Grand  Rapids,  112  Mich. 
99;  Monroe  Water  Co.  v.  Heath,  115 
Mich.  277;  Menominee  Water  Co.  v. 
City  of  Menominee,  124  Mich.  386, 
83  N.  W.  127;  Ludington  Water  Sup- 
ply Co.  v.  City  of  Ludington,  119 
Mich.  480,  78  N.  W.  558;  Davenport 
r.  Kleinschmidt,  6  Mont.  502;  State 
v.  City  of  Great  Falls,  19  Mont.  518; 
State  v.  City  of  Helena,  24  Mont. 
521,  63  Pac.  99;  State  v.  Rune,  24 


Nev.  251,  52  Pac.  274;  Hackensack 
Water  Co.  v.  City  of  Hoboken,  51 
N.  J.  Law,  220;  Mittag  v.  Borough 
of  Park  Ridge,  61  N.  J.  Law,  151; 
Stroud  v.  Consumers'  Water  Co.,  56 
N.  J.  Law,  422,  28  Atl.  578;  Corn- 
stock  v.  City  of  Syracuse,  5  N.  Y. 
Supp.  874;  City  of  Rochester  v. 
Quintard,  136  N.  Y.  221;  Town  of 
Klamath  Falls  v.  Sachs,  35  Or.  325, 
57  Pac.  329;  Peabody  v.  Westerly 
Water  Works,  20  R.  I.  176,  37  Atl. 
807;  Cleveland  v.  City  of  Spartan- 
burg,  54  S.  C.  83;  Miles  v.  Benton 
Tp.,  11  S.  D.  450,  78  N.  W.  1004; 
Pearl  v.  Town  of  Nashville,  18  Tenn. 
(10  Yerg.)  179;  City  of  Austin  v. 
McCall,  95  Tex.  565,  68  S.  W.  791; 
City  of  Palestine  v.  Royall,  16  Tex. 
Civ.  App.  36;  Thornburgh  v.  City  of 
Tyler,  16  Tex.  Civ.  App.  439;  Schultze 
v.  Township  Committee  of  Manches- 
ter, 61  N.  J.  Law,  513;  City  of  Spring- 
ville  v.  Fullmer,  7  Utah,  450;  Peo- 
ple v.  City  Council  of  Salt  Lake 
City,  23  Utah,  13,  64  Pac.  460;  Lucia 
v.  Village  of  Montpelier,  60  Vt.  537, 
15  Atl.  321;  Winston  v.  City  of 
Spokane,  12  Wash.  524;  Attorney 


§  146b 


TO  INCUR  INDEBTEDNESS. 


303 


in  supplying  gas  to  the  city  and  people  of  New  Orleans  that  the 
proper  lighting  of  public  highways  and  streets  was  a  valid  exer- 
cise of  the  police  power,  having  for  its  purpose  the  protection  of 
the  lives  and  property  'of  the  people  of  the  community,  a  govern- 
mental purpose.  Properly  lighted  streets  and  public  places  give 
a  certain  degree  of  immunity  from  attack  by  thieves  or  burglars 
at  night.  A  public  corporation  consequently  is  justified  in  attend- 
ing to  this  so  it  is  claimed,  a  governmental  duty,  and  supplying, 
either  through  a  system  of  its  own  or  through  an  exclusive  con- 
tract, or  otherwise,  with  private242  corporations  or  individuals,  ar- 
tificial light  for  lighting  public  places  when  necessary.  Public 
moneys  therefore  when  used  for  such  purpose  are  properly  and 
legally  expended,  and  debts  incurred  or  obligations  created  will  be 
enforceable  as  against  a  corporation  unless  other  considerations  en- 
ter into  the  determination  of  their  validity.243  The  statement  made 


General  v.  City  of  Eau  Claire,  37 
Wis.  400;  Ellinwood  v.  Reedsburg, 
91  Wis.  131.  See,  also,  30  Am.  St. 
Rep.  399-401. 

242  New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  115  U.  S.  650;  Ham- 
ilton Gas-Light  &  Coke  Co.  v.  City 
of  Hamilton,  146  U.  S.  258;  affirm- 
ing 37  Fed.  832;  Thompson-Houston 
Elec.  Co.  v.  City  of  Newton,  42  Fed. 
723;  Jacksonville  Elec.  Light  Co.  v. 
City  of  Jacksonville,  36  Fla.  229; 
Nelson  v.  City  of  La  Porte,  33  Ind. 
258;  City  of  Crawfordsville  v.  Bra- 
den,  130  Ind.  149;  State  v.  City  of 
Hiawatha,  53  Kan.  477;  City  of 
Newport  v.  Newport  Light  Co.,  84 
Ky.  166;  Pontchartrain  R.  Co.  v. 
Lafayette  &  P.  R.  Co.,  10  La.  Ann. 
741;  Fee  v.  New  Orleans  Gas  Light 
Co.,  35  La.  Ann.  413;  City  of  Bos- 
ton v.  Richardson,  95  Mass.  (13  Al- 
len) 146;  Opinion  of  the  Justices, 
150  Mass.  592;  Spaulding  v.  Inhab- 
itants of  Peabody,  153  Mass.  129; 
City  of  Detroit  v.  Hosmer,  79  Mich. 
384;  Christensen  v.  City  of  Fremont, 
45  Neb.  160;  State  v.  Cincinnati  Gas 
Light  &  Coke  Co.,  18  Ohio  St.  268; 


State  v.  City  of  Hamilton,  47  Ohio 
St.  52;  Wade  v.  Borough  of  Oak- 
mont,  165  Pa.  479.  But  see  Village 
of  Ladd  v.  Jones,  61  111.  App.  584. 

243  Louisville  Gas  Co.  v.  Citizens' 
Gas  Co.,  115  U.  S.  683;  Hammond  v. 
City  of  San  Leandro,  135  Cal.  460, 
67  Pac.  692;  City  of  Denver  v.  Hub- 
bard,  17  Colo.  App.  346,  68  Pac.  993; 
Lott  v.  City  of  Waycross,  84  Ga.  681; 
Coggeshall  v.  City  of  Des  Moines, 
78  Iowa,  235;  Windsor  v.  City  of  Des 
Moines,  110  Iowa,  175,  81  N.  W.  476; 
Gordon  v.  Winchester  Bldg.  &  Accum. 
Fund  Ass'n,  75  Ky.  (12  Bush)  110; 
Laycock  v.  City  of  Baton  Rouge,  35 
La.  Ann.  475;  Lebanon  Light  &  Mag- 
netic Water  Co.  v.  City  of  Lebanon, 
163  Mo.  246,  63  S.  W.  809;  Hequem- 
bourg  v. City  of  Dunkirk, 49  Hun  (N. 
Y.)  550;  Clark  v.  City  of  Columbus. 
23  Wkly.  Law  Bui.  (Ohio)  289;  Town 
of  Klamath  Falls  v.  Sachs,  35  Or. 
325;  Wheeler  v.  City  of  Philadel- 
phia, 77  Pa.  338.  A  gas  plant  is 
property  belonging  to  the  city  not 
for  speculation  but  for  the  comfort 
of  all  the  people,  and  debts  contract- 
ed in  its  construction  and  operation 


304  POWERS.  §  147a 

in  the  preceding  paragraph  in  respect  to  the  legality  of  cer- 
tain indebtedness  applies  also  to  that  incurred  for  this  purpose. 
An  Iowa  case  held  that  the  necessity  for  an  electric  light  plant 
constituted  no  excuse  or  justification  for  the  construction  of  such 
a  plant  when  this  would  result  in  an  increase  of  the  municipal 
indebtedness  beyond  the  constitutional  limitation.  The  purpose 
of  the  expenditure  is  not  attacked,  but  the  contemplated 
amount.244 

§  147.    The  construction  of  internal  improvements. 

(a)  In  general.  The  purposes  enumerated  in  preceding  sec- 
tions come  clearly  within  that  class  or  use  denominated  "a  public 
purpose"  or  "a  public  use,"  and  there  is  no  doubt  as  to  the  au- 
thority of  the  public  corporation  to  incur  indebtedness  or  expend 
the  public  moneys  therefor. 

Considering  other  uses  or  purposes  not  so  clearly  within  those 
authorized  by  law  or  about  which  there  can  be  doubt,  works 
of  internal  improvement,  as  they  are  termed,  may  constitute  a 
use  to  the  construction  of  which  public  moneys  can  be  properly 
appropriated,245  although  some  cases  hold  squarely  to  the  contrary 
doctrine.246  The  protection  of  the  public  health  is  clearly  a 

must  therefore  be  paid  by  the  mu-  public  purpose  justifying  the  ex- 

nicipality.  penditure  of  public  moneys.  The 

244  Windsor  v.  City  of  Des  Moines,  court  say:  "We  are  aware  of  no 

110  Iowa,  175,  81  N.  W.  476.  "But  constitutional  provision  which  pre- 

where  the  contract  is  for  the  erec-  eludes  the  legislature  from  authoriz- 

tion  of  electric  light  plants,  or  for  ing  either  of  these  classes  of  corpo- 

any  other  improvement,  and  the  rations  to  expend  their  revenues  in 

time  of  payment  is  postponed  to  a  supplying  their  inhabitants  with  wa- 

later  date,  and  no  special  levy  for  ter  for  all  the  uses  named  in  the 

the  purpose  of  erecting  such  works  law  under  consideration.  *  *  * 

is  authorized,  the  rule  seems  to  be  The  maintaining  of  a  public  water 

well  settled  that  the  sums  to  be-  tank,  as  provided  for  in  the  act,  is, 

come  due  in  the  future  must  all  be  in  itself,  a  sufficient  benefit  to  all 

taken  into  account  in  estimating  the  the  taxpayers  of  a  civil  township  to 

amount  of  the  existing  indebtedness  warrant  the  construction  of  an  ar- 

of  the  municipality."  Citing  Cul-  tesian  well  at  the  public  expense." 

bertson  v.  City  of  Fulton,  127  111.  30;  -•*«  Rippe  v.  Becker,  56  Minn.  100. 

French  v.  City  of  Burlington,  42  A  law  providing  for  the  purchase  of 

Iowa,  614.  a  site  and  the  erection  of  a  state 

2«  Miles  v.  Benton  Tp.,  11  S.  D.  elevator  or  warehouse  for  the  pub- 

450.  A  public  artesian  well  held  a  lie  storage  of  grain  held  a  violation 


§  147a 


TO  INCUR  INDEBTEDNESS. 


305 


governmental  power  and  duty.  To  execute  this  power  and  per- 
form this  duty  all  usual,  necessary,  convenient  and  proper  means 
may  be  employed.  To  construct  or  aid  in  the  construction  of 
works  of  internal  improvement  is  not  so  clearly  a  governmental 
power  or  duty.  The  character  and  purpose  of  a  work  of  internal 
improvement  depends  largely  upon  the  determination  by  public 
officials  that  the  enterprise  in  question  is  not  only  one  of  the 
usual,  proper,  necessary  and  convenient  means  for  performing 
or  exercising  a  governmental  duty  or  power,  but  that  it  is  itself 
such  a  power  or  duty.  It  certainly  is  unsafe  to  leave  without 
restraint  such  a  far-reaching  and  conclusive  determination  to  pub- 
lic officials.  The  opportunity  for  the  insidious  and  unconscious 
influence  of  self-interest  is  too  apparent.247 

There  are  certain  works  of  internal  improvement  in  regard  to 
the  construction  or  the  granting  of  aid  in  the  construction  of 
which  the  law  is  well  established,  namely,  the  establishment  of 


of  a  constitutional  provision  that  the 
"state  shall  never  contract  any  debt 
for  works  of  internal  improvement 
or  be  a  party  in  carrying  on  such 
works."  See,  also,  Traver  v.  Mer- 
rick  County  Com'rs,  14  Neb.  327; 
Leavenworth  County  Com'rs  v.  Mil- 
ler, 7  Kan.  493.  In  Rippe  v.  Becker, 
56  Minn.  100,  the  Court  said  through 
Justice  Mitchell:  "It  would  admit 
not  only  of  building  grain  elevators, 
but  also  of  engaging  in  schemes  of 
drainage;  irrigation;  developing  wa- 
ter powers,  building  public  grist 
mills  *  *  *  and  other  like  enter- 
prises almost  without  limit.  Cer- 
tainly to  engage  in  such  enterprises 
as  these  at  the  expense  of  the  tax- 
payers of  the  state  is  quite  as  much 
within  the  mischiefs  aimed  at  by  the 
constitution  as  to  engage  in  the  con- 
struction of  highways  for  commerce. 
*  *  *  The  present  constitution 
was  not  framed  on  any  such  lines." 
See,  also,  People  v.  State  Treasurer, 
23  Mich.  499. 
2*7  Mitchell  v.  Burlington  &  Mt.  P. 


Plank-road  Co.,  72  U.  S.  (4  Wall.) 
270;  Lamed  v.  Burlington  &  Mt.  P. 
Plank-road  Co.,  72  U.  S.  (4  Wall.) 
27o,  Brauns  v.  Town  of  Peoria,  82 
111.  11;  Prince  v.  Crocker,  166  Mass. 
347,  44  N.  E.  446.  The  Boston  sub- 
way. 

Attorney  General  v.  Pingree,  120 
Mich.  550,  79  N.  W.  814.  Where  the 
constitution  prohibits  the  state  from 
being  a  party  to  or  interested  in  any 
work  in  internal  improvement,  it 
should  not  authorize  a  municipality 
to  undertake  or  become  interested 
in  that  which  in  itself  it  was  pro- 
hibited from  doing. 

Walker  v.  City  of  Cincinnati,  21 
Ohio  St.  14;  Maneval  v.  Jackson  Tp., 
141  Pa.  426,  21  Atl.  672;  Brooke  v. 
City  of  Philadelphia,  162  Pa.  123. 
Expense  of  elevating  tracks  may  be 
assumed  by  a  city  where  this  re- 
sulted in  abolishing  grade  crossings. 
Note,  however,  in  this  case,  the  dis- 
senting opinion  of  Mr.  Chief  Justice 
Sterrett,  and  see,  also,  Bank  for 
Savings  v.  Grace,  102  N.  Y.  313. 


Abb.  Corp.— 20. 


306 


POWERS. 


§  147a 


public  highways,  and  canals,248  the  improvement  of  navigable 
waters,249  or  the  digging  of  ditches,  having  for  their  purpose  the 
draining  of  large  tracts  of  low  and  swampy  land.  The  construc- 
tion of  the  last  is  justified  by  the  double  reason,  the  removal  of 
a  nuisance  detrimental  to  the  public  health  and  the  addition  to 
the  tillable  and  arable  lands  of  the  state.  The  erection  of 
bridges250  has  also  been  held  a  purpose  for  which  public  moneys 
can  be  properly  used. 

Judge  Cooley,  in  his  History  of  Michigan,  published  in  1885, 
says:     "Our  state  had,  once  before,  a  bit  of  experience  of  the 


2*8  Mitchell  v.  Burlington  &  Mt.  P. 
Plank-road  Co.,  72  U.  S.  (4  Wall.) 
270;  Mygatt  v.  Green  Bay,  1  Biss. 
292,  Fed.  Gas.  No.  9,998;  Haag  v. 
Rio  Grande  County  Com'rs,  34  Fed. 
778;  City  of  Wetumpka  v.  Winter, 
29  Ala.  651;  City  of  Mt.  Vernon  v 
Hovey,  52  Ind.  563;  Clay  v.  Nich- 
olas County  Ct.,  67  Ky.  (4  Busnj 
154;  Foreman  v.  Murphy,  70  Ky.  (7 
Bush)  304;  People  v.  City  of  Brook- 
lyn, 4  N.  Y.  (4  Comst.)  420;  Town 
of  Newark  v.  Elliott,  5  Ohio  St.  113; 
Com.  v.  McWiliiams,  11  Pa,  61;  Ham- 
mett  v.  City  of  Philadelphia,  65  Pa. 
146;  State  v.  Wirt  County  Ct.,  37  W. 
Va.  808;  Sedgwick,  St.  Const.  Law, 
p.  446  et  seq.;  Lancey  v.  King  Coun- 
ty, 15  Wash.  9.  Objection  was  made 
to  canal  aid  because  the  constitution 
provided  that  "no  county  shall  here- 
after give  any  money  or  property  or 
loan  its  money  or  credit  to,  or  in 
aid  of  any  individual,  association, 
company  or  corporation."  The  court 
held,  however,  that  a  work  of  this 
kind  did  not  come  within  the  mean- 
ing and  purview  of  this  provision. 
See,  also,  8  Am.  Rep.  24,  and  In  re 
Petition  of  U.  S.,  96  N.  Y.  227,  and 
cases  therein  cited. 

249  Taylor  v.  Newberne  Com'rs.  55 
N.  C.  (2  Jones'  Eq.)  141;  Goddin  v. 
Crump,  8  Leigh  (Va.)  120;  Knowl- 
ton  v.  Rock  County  Sup'rs,  9  Wis. 


410;  Soens  v.  City  of  Racine,  10  Wis. 
271;  Brodhead  v.  City  of  Milwaukee, 
19  Wis.  624;  Curtis'  Adm'r  v.  Whip- 
pie,  24  Wis.  350. 

Whiting  v.  Sheboygan  &  F.  R.  Co., 
25  Wis.  216,  as  establishing  the  doc- 
trine in  Wisconsin  that  in  no  case 
does  "a  municipal  corporation  pos- 
sess the  power  to  engage  in  works 
of  internal  improvement,  such  as  the 
construction  of  railroads,  canals, 
harbors  and  the  like,  unless  that 
power  is  specifically  granted  by  the 
legislature."  In  this  case,  an  at- 
tempt was  made  to  show  a  ratifica- 
tion by  the  legislature  of  the  con- 
tract, but  the  court  held  that  such 
an  act  alone  was  not  sufficient  to 
make  the  contract  obligatory  upon 
the  corporation  of  Milwaukee. 

250  Simpson  v.  Lauderdale  County, 
56  Ala.  64;  Dingley  v.  City  of  Bos- 
ton, 100  Mass.  544;  Egyptian  Levee 
Co.  v.  Hardin,  27  Mo.  495;  DeClerq 
v.  Hager,  12  Neb.  185;  People  v. 
Tompkins,  64  N.  Y.  53;  People  v. 
Meach,  14  Abb.  Pr.  (N.  S.;  N.  Y.) 
429;  People  v.  Hudson  Highway 
Com'rs,  7  Wend.  (N.  Y.)  474;  Gar- 
linghouse  v.  Jacobs,  29  N.  Y.  297; 
Smith  v.  Wright,  27  Barb.  (N.  Y.) 
621;  Gray  v.  City  of  Brooklyn,  7  - 
Hun  (N.  Y.)  632;  Waupaca  County 
v.  Town  of  Matteson,  79  Wis.  67. 


§   147b  TO  INCUR  INDEBTEDNESS.  307 

evils  of  government  connecting  itself  with  works  of  internal  im- 
provement. In  a  time  of  inflation  and  imagined  prosperity  the 
state  had  contracted  a  large  debt  for  the  construction  of  a  system 
of  railroads  and  the  people  were  oppressed  with  heavy  taxation 
in  consequence.  Moreover,  for  a  portion  of  this  debt,  they  had 
not  received  what  they  bargained  for  and  they  did  not  recognize 
their  legal  or  moral  obligation  to  pay  it.  The  good  name  and 
fame  of  the  state  suffered  in  consequence.  The  result  of  it  all 
was  that  a  settled  conviction  fastened  itself  upon  the  minds  of 
our  people  that  works  of  internal  improvement  should  be  private 
enterprises;  that  it  was  not  within  the  proper  province  of  gov- 
ernment to  connect  itself  with  their  construction  or  management, 
and  that  our  imperative  state  policy  demanded  that  no  more 
burdens  be  imposed  upon  the  people  by  state  authority  for  any 
such  purpose.  Under  this  conviction  they  incorporated  in  the 
constitution  of  1850  several  provisions  expressly  prohibiting  the 
state  from  being  a  party  to,  or  engage  in  carrying  on,  any  work 
of  internal  improvement." 

(b)  Railway  aid.  For  many  years  the  granting  of  public  aid 
in  the  construction  of  railways  owned  and  operated  by  private 
individuals  or  corporations  was  not  permitted,  the  purpose  not 
being,  as  the  courts  then  held,  a  "public  one."  The  doctrine 
now  is  clearly  established  that  such  aid  is  valid,  and  the  voting 
of  public  moneys,  unless  restrained  by  constitutional  provisions, 
to  aid  in  the  construction  of  railways,  is  an  appropriation  for  a 
public  use.  This  holding  is  based  upon  the  principle  that  a  rail- 
way is  a  quasi  public  highway,  that  one  of  the  duties  of  the  state 
is  to  furnish  means  of  safe  and  rapid  communication  within 
its  limits,  and  having  the  power,  even  considered  by  some  in  the 
light  of  a  duty,  to  do  this  directly,  it  can  accomplish  the  same 
result  indirectly  through  private  agencies.  The  tendency  of  pub- 
lic corporations  to  incur  unwise  debts  and  to  make  lavish  expendi- 
tures is  too  great  without  giving  public  officials  the  least  latitude 
and  the  power  is  one  of  doubtful  expediency.  The  doctrine, 
however,  is  thoroughly  established  by  a  long  line  of  decisions, 
all  of  which  it  is  unnecessary  to  cite.  A  few  will  be  given  in  the 
notes.251 

251  Amey  v.  Allegheny  City,  24  Moberly,  103  U.  S.  580.  Dissenting 
How.  (U.  S.)  364;  Callaway  County  opinion  by  Mr.  Justice  Harlan; 
v.  Foster,  93  U.  S.  567;  Jarrolt  v.  Pleasant  Tp.  v.  Aetna  Life  Ins.  Co., 


308 


POWERS. 


§  148 


§  148.    Express  limitations  on  power  to  incur  indebtedness. 

It  is  an  inherent  and  implied  limitation  upon  the  power  of  a 
public  corporation  to  incur  indebtedness  that  to  be  valid  it  must 


138  U.  S.  67;  reversing  62  Fed. 
718;  French  v.  Teschemaker,  24 
Gal.  518;  Quincy,  M.  &  P.  R.  Co.  r. 
Morris,  84  111.  410;  City  of  New  Or- 
leans v.  Graihle,  9  La.  Ann.  561; 
City  of  St.  Louis  v.  Alexander,  23 
Mo.  483;  Wood  v.  Town  of  Oxford, 
97  N.  C.  227.  But  see  Taylor  v. 
Ross  County  Com'rs,  23  Ohio  St.  22; 
Brown  v.  Philadelphia  County 
Com'rs,  21  Pa.  37.  See,  also,  au- 
thorities collected  and  cited  in  Dil- 
lon, Mun.  Corp.  (4th  Ed.)  p.  224. 
In  section  153  of  that  able  work  the 
author  says:  "The  most  noted  of 
extraordinary  powers  conferred  upon 
municipal  and  public  corporations 
is  the  authority  to  aid  in  the  con- 
struction of  railways  by  subscrib- 
ing to  their  stock,  issuing  negotiable 
bonds  as  a  means  of  paying  their 
subscription,  and  taxing  the  inhab- 
itants or  Che  property  within  their 
limits  to  pay  the  indebtedness  there- 
by incurred.  Legislation  of  this 
kind  belongs  to  a  period  compar- 
atively recent,  and  has  been  more  or 
less  resorted  to  at  times,  by  almost 
every  state  in  the  Union.  As  it  is 
an  author's  duty  to  state  what  the 
law  is  rather  than  what,  in  his  judg- 
ment, it  ought  to  be,  he  is  con- 
strained to  admit  that  a  long  and  al- 
most unbroken  line  of  judicial  de- 
cisions in  the  courts  of  most  of  the 
states  has  established  the  principle 
that,  in  the  absence  of  special  re- 
strictive constitutional  provisions,  it 
is  competent  for  the  legislature  to 
authorize  a  municipal  or  public  cor- 
poration to  aid,  in  the  manner  above 
indicated,  the  construction  of  rail- 
ways running  near,  or  to,  or  through 


its  territory.  *  •  •  Notwith- 
standing the  opinion  of  so  many 
learned  and  eminent  judges,  there 
remain  serious  doubts  as  to  the 
soundness  of  the  principle,  viewed 
simply  as  one  of  constitutional  law. 
Regarded  in  the  light  of  its  effects, 
however,  there  is  little  hesitation 
in  affirming  that  this  invention  to 
aid  the  enterprises  of  private  cor- 
porations has  proved  itself  baneful 
in  the  last  degree." 

In  Iowa  decisions  will  be  found 
both  for  and  against  the  legality  of 
railway  aid.  In  Michigan  the  state 
courts  have  uniformly  ruled  against 
the  validity  of  such  a  contribution 
on  the  part  of  public  corporations 
and  in  Wisconsin  the  recent  course 
of  judicial  decision  has  been  against 
the  granting  of  aid.  Stokes  v.  Scott 
County,  10  Iowa,  166;  McClure  v. 
Owen,  26  Iowa,  243.  Contra,  Stew- 
art v.  Polk  County  Sup'rs,  30  Iowa, 
9;  Renwick  v.  Davenport  &  N.  W. 
R.  Co.,  47  Iowa,  511;  People  v.  Sa- 
lem Tp.,  20  Mich.  452.  But  see 
Gelpcke  v.  City  of  Dubuque,  68  U. 
S.  (1  Wall.)  175;  Butz  v.  City  of 
Muscatine,  75  U.  S.  (8  Wall.)  575; 
Burlington  &  M.  R.  Co.  v.  County 
of  Otoe,  83  U.  S.  (16  Wall.)  667, 
and  Pine  Grove  Tp.  v.  Talcott,  86 
U.  S.  (19  Wall.)  666,  where  the  su- 
preme court  of  the  United  States  in 
an  able  and  exhaustive  opinion  held 
an  act  of  the  legislature  of  Michi- 
gan authorizing  the  issue  of  railroad 
aid  bonds  constitutional  and  valid 
thus  reversing  in  effect  the  decisions 
of  the  supreme  court  of  Michigan. 

Whiting  v.  Sheboygan  &  F.  R.  Co., 
25  Wis.  167,  where  Chief  Justic» 


§    148 


TO  INCUR  INDEBTEDNESS. 


309 


be,  as  has  been  stated  in  the  preceding  sections,  incurred  for  "a 
public  purpose. ' '  The  state  cannot  arbitrarily  under  the  guise  of 
an  ostensible  public  purpose,  appropriate  moneys  for  the  benefit 
or  advantage  of  private  individuals  and  private  enterprises.  As 
stated  in  a  Pennsylvania  case,  "Taxation  is  a  mode  of  raising 
revenue  for  public  purposes.  When  it  is  prostituted  to  objects 
in  no  way  connected  with  the  public  interests  or  welfare,  it 
ceases  to  be  taxation  and  becomes  plunder."262  The  declaration 
by  the  legislature  that  certain  purposes  or  uses  are  public  is  not 
conclusive.  The  purpose  must  be  public  in  its  nature  or  the  use 
for  which  public  funds  are  appropriated  must  be  such  before  a 
legal  expenditure  will  exist. 

In  the  notes  will  be  found  references  to  cases  passing  upon  the 
validity  of  indebtedness  incurred  for  specific  purposes,  the  legal 
objections  raised  being  those  touching  the  character  of  the  pur- 
pose of  the  expenditures  of  such  moneys.253 


Dixon  said:  "There  are  very  many 
enterprises  and  occupations  of  a  pri- 
vate character  connected  with  trade, 
commerce  and  manufactures  which 
are  quite  as  much  to  our  advantage 
as  a  people  and  quite  as  necessary 
and  indispensable  to  our  growth  and 
prosperity  as  a  nation,  as  the  build- 
ing and  operating  of  railroads,  and 
some  are  even  more  so.  *  *  * 
The  incidental  public  benefits  or  ad- 
vantages, though  in  a  general  sense 
to  be  considered,  do  not,  therefore, 
constitute  in  the  sense  of  the  law, 
a  public  use  which  will  justify  the 
interference  of  the  government." 
The  constitutionality  of  the  same 
act  considered  in  the  Whiting  Case, 
was  before  the  supreme  court  of  the 
United  States  in  Olcott  v.  Fond  du 
Lac  Sup'rs,  83  U.  S.  (16  Wall.)  678, 
and  its  validity  sustained.  See,  also, 
Long  v.  City  of  New  London,  5  Fed. 
559;  Smith  v.  City  of  Fond  du  Lac, 
8  Fed.  289;  Foster  v.  City  of  Ke- 
nosha,  12  Wis.  688;  Hasbrouck  v. 
City  of  Milwaukee,  13  Wis.  42,  and 
Fisk  v.  City  of  Kenosha,  26  Wis.  23. 


252  Sharpless  v.  City  of  Philadel- 
phia, 21  Pa.  147,  59  Am.  Dec.  759. 

253  in   Burlington  Tp.  v.  Beasley, 
94  U.  b.  310,  where  the  statute  au- 
thorized    municipalities     to     issue 
bonds  in   aid  of  works  of  internal 
improvement,    the    court    held    that 
the  term  "internal  improvement"  in- 
cluded grist  mills  whether  run  by 
water  or  steam.     See,  also,  as  hold- 
ing to  the  same  doctrine,  Brewer  v. 
Merrick    County    Com'rs,     15    Neb. 
180;   State  v.  Clay  County,  20  Neb. 
452;    George   v.   Cleveland,   53   Neb. 
716,  74  N.  W.  266,  and  Vail  v.  City 
of  Attica,  8  Kan.  App.  668,  57  Pac. 
137;    City  of  Ottawa  v.  Carey,  108 
U.  S.  110.    Bonds  issued  by  way  of 
donation  to  an  individual  to  aid  him 
in   developing   the   water   power   of 
the  city  were  held,  in  this  case,  void 
in  the   hands   of  one   taking  them 
with  the  knowledge  of  such  fact,  al- 
though the  city  charter  authorized 
the  borrowing  of  money  and  the  is- 
suing of  bonds  to  be  "expended  in 
developing   the   natural    advantages 
of  the  city  for  manufacturing  pur- 


310 


POWERS. 


§   148 


There  are  certain  enterprises  which  while  private  in  their 
organization,  yet  in  their  nature  or  the  transaction  of  their  busi- 
ness partake  of  a  public  character  to  such  an  extent  that  if  the 


poses."  Cole  v.  City  of  La  Grange, 
113  U.  S.  1.  Aid  not  authorized  to 
a  private  corporation  operating  a 
rolling  mill.  Commercial  Nat.  Bank 
v.  City  of  lola,  2  Dill.  353,  Fed.  Gas. 
No.  3,061.  See,  also,  Citizens'  Sav. 
&  Loan  Ass'n  v.  City  of  Topeka,  87 
U.  S.  (20  Wall.)  655;  City  of  Park- 
ersburg  v.  Brown,  106  U.  S.  487; 
Allen  v.  Inhabitants  of  Jay,  60  Me. 
124;  Lowell  v.  City  of  Boston,  111 
Mass.  454;  Weismer  v.  Village  of 
Douglas,  64  N.  Y.  91;  In  re  Eureka 
Basin  Warehouse  &  Mfg.  Co.,  96  N. 
Y.  42;  Bissell  v.  City  of  Kankakee, 
64  111.  249;  English  v.  People,  96 
111.  566.  But  see  the  opinion  in 
Hackett  v.  City  of  Ottawa,  99  U.  S. 
86. 

Central  Branch  U.  P.  R.  Co.  v. 
Smith,  23  Kan.  745.  Purchasers  of 
bonds  in  this  case  held  bound  to 
take  notice  of  the  purpose  for  which 
the  corporation  receiving  aid  was 
organized. 

Chicago,  K.  &  N.  R.  Co.  v.  City  of 
Manhattan,  45  Kan.  419;  People's 
Nat.  Bank  v.  City  of  Pomona,  48 
Kan.  55.  Kansas  Laws  1887,  c.  114, 
authorizing  counties  and  cities  of 
second  and  third  classes  to  issue 
bonds  and  subscribe  to  the  capital 
stock  of  companies  organized  for  the 
purpose  of  mining  coal  construed. 
See,  also,  as  interpreting  the  same 
statutes:  City  of  Geneseo  v.  Gen- 
eseo  Natural  Gas,  Coal,  Oil,  Salt  & 
Mineral  Co.,  55  Kan.  358,  40  Pac. 
G55;  Luques  v.  Inhabitants  of  Dres- 
den, 77  Me.  186.  Public  moneys  not 
authorized  to  be  used  in  the  care  of 
a  private  cemetery. 

In  Lowell  v.  City  of  Boston,  111 


Mass.  463,  the  question  of  a  public 
purpose  is  thoroughly  and  fully  dis- 
cussed and  many  cases  cited.  The 
question  as  decided  by  the  court 
arose  upon  the  validity  of  a  pro- 
posed issue  of  bonds  by  the  city  of 
Boston  to  be  sold  for  the  purpose 
of  raising  a  fund  for  loaning  on 
mortgage  to  landowners  whcse  build- 
ings had  been  burned  in  an  ex- 
tensive fire.  The  court  said  that 
the  general  result  might  indeed  re- 
motely involve  a  public  benefit,  but 
that  the  fund  intended  to  be  raised 
was  to  be  appropriated  distributive- 
ly  to  numerous  individuals,  each  one 
of  which  would  be  independent  of 
any  relation  to  the  others  or  to  any 
other  purpose  except  that  of  indi- 
vidual enterprise  in  matters  of  pri- 
vate business,  and  that  the  power 
of  municipal  taxation  could  not  be 
employed  for  such  purposes. 

In  Adams  v.  Jackson  Elec.  R., 
Light  &  Power  Co.,  78  Miss.  887,  30 
So.  58,  money  which  had  become  for- 
feited to  a  city,  it  was  held,  could 
not  be  appropriated  in  aid  of  a  rail- 
way or  other  corporation  or  associa- 
tion under  Const.  §  183,  prohibiting 
the  granting  of  aid  to  private  enter- 
prises. 

Getchell  v.  Benton,  30  Neb.  870; 
French  v.  City  of  Millville,  66  N.  J. 
Law,  392,  49  Atl.  465.  The  fact  that 
a  city  is  a  member  of  a  mutual  in- 
surance company  does  not  bring 
such  act  within  the  prohibition  of 
Const,  art.  1,  par.  19,  prohibiting 
cities  from  loaning  their  credit  to 
any  corporation.  Comstock  v.  City 
of  Syracuse,  129  N.  Y.  643;  Sun 
Printing  &  Pub.  Ass'n  v.  City  of 


148 


TO  INCUR  INDEBTEDNESS. 


311 


law  specifically  names  them  as  capable  of  receiving  public  aid, 
indebtedness  incurred  in  pursuance  of  such  authority  will  be  held 
valid  and  enforceable.  This  principle  as  already  stated  applies 
to  the  granting  by  public  corporations  of  aid  in  the  construction 
of  railway  lines  through  their  territory  or  such  adjoining  terri- 
tory ns  to  result  in  substantial  benefit  or  advantage  to  them.*** 
The  character  of  the  industry  carried  on  by  mills  in  frontier  dis- 
tricts has  also  been  held  to  partake  of  this  public  nature  so  as  to 
authorize,  under  a  law  declaring  such  enterprises  to  be  public, 
the  incurring  of  valid  indebtedness  either  through  the  issue  of 
bonds  or  otherwise.255  If  authority  to  aid  private  enterprise 
already  exists,  subsequent  legislation  cannot  affect  the  validity  of 
debts  legally  incurred  prior  to  such  legislation.258 

The  limitations  discussed  in  this  and  preceding  sections  exist 
not  only  as  implied  and   inherent  principles  but  may  also   as 


New  York,  152  N.  Y.  257.  The  ex- 
penditures of  public  moneys  in  the 
construction  of  a  street  railway 
where  private  capital  had  failed  to 
construct  a  necessary  line  of  com- 
munication, was  held  not  to  be  in 
contravention  of  Const.  N.  Y.  art.  8, 
§  10,  prohibiting  the  city  from  giv- 
ing any  money  or  property,  or  loan- 
ing its  money  or  credit  to  or  in  aid 
of  any  individual  association  or  cor- 
poration. New  York  Laws  1891,  c. 
4,  and  amendments,  popularly  known 
as  Rapid  Transit  Acts,  were  con- 
strued and  held  valid  in  this  case. 

Sweet  v.  City  of  Syracuse,  60  Hun 
(N.  Y.)  28;  Tocci  v.  City  of  New 
York,  73  Hun,  46,  25  N.  Y.  Supp. 
1089.  In  Kissell  v.  Village  of  Co- 
lumbus Grove,  27  Wkly.  Law  Bui. 
(Ohio)  183,  the  issue  of  bonds  for 
the  purpose  of  aiding  and  encourag- 
ing manufacturing  establishments, 
under  Act  of  Gen.  Assem.  April  23, 
1891  (88  Ohio  Laws,  p.  367),  was 
held  to  conflict  with  Const,  art.  8, 
§  6,  prohibiting  the  granting  of  aid 
or  loaning  of  credit  by  municipal 
corporations  to  any  private  corpora- 


tion. Wilkesbarre  City  Hospital  v. 
Luzerne  County,  84  Pa.  55;  Mauldin 
v.  City  Council  of  Greenville,  33  S. 
C.  1;  Ohio  Valley  Iron  Works  v. 
Town  of  Moundsville,  11  W.  Va.  1. 
Donations  to  a  manufacturing  and 
mining  enterprise  held  prohibited  by 
the  provisions  of  the  Constitution 
limiting  expenditures  of  public  mon- 
eys to  a  municipal  or  public  pur- 
pose. See,  also,  Olcott  v.  Fond  du 
Lac  County  Sup'rs,  5  Chicago  Leg. 
N.  397. 

254  See  §  147. 

255  Burlington   Tp.   v.  Beasley,   94 
U.   S.   310,    following  Citizens'   Sav. 
&  Loan  Ass'n  v.  City  of  Topeka,  87 
U.  S.  (20  Wall.)  661;  Blair  v.  Cum- 
ing  County,  111  U.  S.  363;   Leaven- 
worth    County   Com'rs   v.   Miller,    7 
Kan.  479. 

sse  Scotland  County  v.  Thomas,  94 
U.  S.  682;  County  of  Galloway  v. 
Foster,  93  U.  S.  567;  Slack  v.  Mays- 
ville  &  L.  R.  Co.,  52  Ky.  (13  B. 
Mon.)  1;  State  v.  Sullivan  County, 
51  Mo.  522;  State  v.  Greene  County, 
54  Mo.  540. 


312 


POWERS. 


148  § 


charter,  statutory  or  constitutional  provisions.237  It  is  quite  cus- 
tomary at  this  day.  These  provisions  usually  prohibit  the  ex- 
penditure of  public  moneys  for  any  purpose  except  "a  public 
one"  without,  however,  giving  a  more  specific  definition  of  this 
term.  The  limitations  may  apply  to  the  amount  only  of 
such  indebtedness  without  reference  to  the  purpose  of  the  ex- 
penditure. They  are  construed  liberally  in  their  application  and 
extended  to  include  grades  or  classes  of  public  corporations  not 
enumerated  but  possessing  similar  characteristics.268  The  con- 
stitutional prohibition  that  the  general  assembly  shall  not  author- 
ize "any  county,  city  or  town"  to  become  a  stockholder  in  or 
loan  its  credit  to  any  corporation  it  has  been  held  includes  a 
"township"  as  well  as  the  organization  named.258 


25T  Weldin  v.  City  of  Wilmington, 
3  Penn.  (Del.)  472,  51  All.  157.  The 
city  of  Wilmington  by  its  charter 
was  prohibited  from  issuing  bonds 
exceeding  a  certain  amount.  In  this 
case  the  court  held  that  the  legis- 
lature could  pass  an  act  which  would 
in  effect  relieve  the  city  from  the 
limitation  prescribed  by  the  charter 
and  give  to  it  the  right  to  increase 
its  funded  indebtedness  beyond  the 
charter  limit. 

Martin  v.  Tyler,  4  N.  D.  278;  Red- 
mon  v.  Chacey,  7  N.  D.  231,  73  N. 
W.  1081.  The  issue  of  bonds  to  pay 
the  cost  of  locating  and  construct- 
ing a  drain  was  held  not  "a  loan 
of  the  credit  of  the  county"  so  as 
to  violate  Const.  §  185,  where  the 
bonds  were  to  be  paid  from  a  sink- 
ing fund  created  from  the  proceeds 
of  special  assessments  upon  the 
property  in  municipalities  benefited 
by  the  construction  of  such  drain. 
The  Court  say:  "These  warrants 
are  issued,  not  by  the  county  com- 
missioners, but  by  the  drain  com- 
missioners— a  board  whose  author- 
ity in  that  line  is  limited  to  dealing 
with  the  drainage  fund,  and  that 
cannot  bind  the  county  generally. 


Moreover,  these  warrants  are  ex- 
pressly drawn  against  the  drainage 
fund.  That  a  warrant  so  drawn 
creates  no  general  liability  against 
the  municipality  is  well  settled." 
Citing — Burroughs,  Pub.  Secur.  635 
et  seq.,  and  15  Am.  &  Eng.  Enc. 
Law  (1st  Ed.)  1214  et  seq. 

Foster  v.  City  of  Kenosha,  12  Wis. 
616.  But  see  Fisk  v.  City  of  Ke- 
nosha, 26  Wis.  23.  If  the  authority 
to  incur  indebtedness  is  derived 
from  a  legislative  act,  such  provi- 
sions are  void  if  there  is  a  failure 
to  provide  a  limitation  upon  the 
amount  of  such  indebtedness.  See, 
also,  summary  of  state  constitu- 
tions respecting  aid  to  railway  com- 
panies and  to  private  enterprises, 
collected  in  Simonton,  Mun.  Bonds, 
§  262;  and  Burroughs,  Pub.  Secur. 
c.  XIV. 

ass  Walsh  v.  City  of  Augusta,  67 
Ga.  293.  Ga.  Const,  art.  7,  §  7,  lim- 
iting debts  legally  incurrable  by  mu- 
nicipal corporations,  it  was  held  in 
this  case,  applied  as  well  to  cities 
reaching  the  7%  limit  specified  as 
well  as  to  those  that  do  not. 

259  Harshman  v.  Bates  County,  92 
U.  S.  569. 


§   149 


TO  INCUR  INDEBTEDNESS. 


313 


§  149.    Same  subject  continued. 

In  the  preceding  sections  has  been  considered  the  power  of 
a  public  corporation  to  incur  indebtedness  for  proper  municipal 
purposes  other  than  by  an  issue  of  bonds.  There  has  been  sug- 
gested the  implied  limitation  upon  such  power  arising  from  the 
character  of  the  purpose  or  use  funds  so  derived  are  put,  with  a 
reference  to  further  limitations  found  in  the  general  statutes, 
the  constitution  of  the  state,  or  in  the  charter  of  the  particu- 
lar organization.260  These  restrictions  have  been  found  neces- 
sary because  of  the  mania  possessed  apparently  by  all  public 
corporations  to  incur  debts  without  regard  to  the  means  or 
source  of  payment.261  To  restrict  and  limit  the  capacity  for  mu- 
nicipal extravagance,  the  courts  have  upheld  their  constitution- 


260  Gibbons  v.  Mobile  &  G.  N.  R. 
Co.,  36  Ala.  410;  Soule  v.  McKibben, 
6  Cal.  142;  Rice  v.  City  of  Keokuk, 
15    Iowa,    579;    Wallace   v.    City   of 
San  Jose,  29  Cal.  181;   Wyncoop  v. 
Congregational   Soc.,  10   Iowa,   185; 
Dunnovan  v.  Green,  57  111.  63;  Foot 
v.    Salem,   96    Mass.    (14   Allen)    87. 

261  A  compilation  from  the  latest 
statistics  published  by  the  Commer- 
cial and  Financial  Chronicle  shows 
the  net  debt  of  public  corporations 
in  the  United  States,  including  mu- 
nicipalities, to  approximate  over  two 
billion  of   dollars.     The  same  jour- 
nal, the  most  conservative  and  best 
of  its  kind   published,   is  authority 
for   the   statement   that  during  the 
year  1901  the  increase  in  state  and 
municipal     indebtedness,    excluding 
refunding  bonds,   was    $132,567,232; 
for  1902,  $130,536,874;  1903  $139,047,- 
254;  and  for  1904,  $238,905,467.    From 
statistics    published    by    the    same 
journal    the    following    estimate    is 
made  of  the  increase  for  the  years 
named    in   state   and   municipal   in- 
debtedness      excluding       refunding 
bonds:    1892,  $75,441,164;   1893,  $69,- 
679,146;      1894,     $105,458,603;     1<?95, 
$102,619,470;  1896,  $95,846,454;   Io97, 


$124,185,604;  1898,  $92,776,314;  1899, 
$106,302,705;  1900,  $131,159,756.  A 
total  for  the  period  from  1892  to 
1904,  both  inclusive,  of  $1,544,526,043. 
It  is  also  evident  that  this  mania 
is  not  confined  to  the  United  States, 
for,  at  a  recent  meeting  in  Eng- 
land, the  manager  of  Lloyd's  Bank 
in  London  spoke  very  emphatical- 
ly on  this  subject.  The  debts  of 
the  British  municipalities  he  said 
"had  been  increased  by  leaps  and 
bounds  during  the  last  ten  years 
and  now  amounted  to  £350,000,000 
— half  the  national  debt.  The  money 
had  often  been  spent  in  municipal 
trading;  the  extravagance  had  been 
so  great  that  the  money  market  was 
now  practically  closed  against  mu- 
nicipalities, it  being  impossible  for 
them  to  borrow  except  at  usurious 
rates."  The  figures  above  given  for 
the  United  States  do  not  include 
either  the  debt  of  the  United  States 
or  the  repudiated  debts  of  various 
states  and  municipalities.  If  this 
should  be  added,  the  total  debt  of  all 
governmental  organizations  in  the 
United  States  would  approximate 
four  billion  of  dollars. 


314 


POWERS. 


149 


ality  whenever  called  in  question,  and  applied  to  them  the  strict 
rule  of  construction,  denying  the  power  of  the  corporation  to 
incur  questionable  debts.  Their  language  varies  and  limits  the 
amount  of  debt  which  can  be  legally  incurred  by  public  cor- 
porations by  fixing  a  gross  sum  either  in  amount26-  or  rate 
of  taxation,263  or,  which  is  perhaps  the  usual  and  customary 


262  City  of  Brenham  v.  German 
American  Bank,  144  U.  S.  173,  549; 
reversing  35  Fed.  185;  Argenti  v. 
City  of  San  Francisco,  16  Cal.  256; 
McCracken  v.  City  of  San  Francisco, 
16  Cal.  591.  The  restriction  in  the 
charter  considered  in  the  last  two 
cases  prevented  the  common  coun- 
cil from  creating  or  permitting  the 
incurring  of  debts  or  liabilities  in 
the  aggregate  with  other  debts  not 
exceeding  $50,000  over  and  above 
the  annual  city  revenue. 

Bank  of  Columbia  v.  Taylor  Coun- 
ty, 112  Ky.  243,  65  S.  W.  451;  Hoff- 
man v.  Gallatin  County  Com'rs,  18 
Mont.  224,  44  Pac.  973.  A  consti- 
tutional provision  prohibited  the  in- 
curring of  indebtedness  for  any 
single  purpose  exceeding  $10,000 
without  the  approval  of  a  majority 
of  the  voters.  Three  separate  loans 
of  $10,000  each  were  made  in  one 
day  by  a  county  board  and  the 
court  held  the  last  two  unauthorized, 
the  constitutional  limitation  apply- 
ing to  the  total  amount  of  indebt- 
edness not  the  indebtedness  legally 
incurrable  by  single  action. 

Salem  Water  Co.  v.  City  of  Sa- 
lem, 5  Or.  29.  In  Winters  v.  George, 
21  Or.  251,  the  limitation  construed 
was  one  providing  that  the  city  of 
Portland  might  incur  an  indebted- 
ness of  $500,000  for  building  bridg- 
es across  the  Willamette  River,  but 
that  it  should  never  incur  indebted- 
ness for  more  than  two  years  In  the 
future  except  by  the  issue  of  nego- 
tiable bonds. 


aes  School  Town  of  Winamac  v. 
Hess,  151  Ind.  229;  Allen  v.  City  of 
Davenport,  107  Iowa,  90;  Phillips  v. 
Reed,  107  Iowa,  331.  Saloy  v.  City 
of  New  Orleans,  33  'La.  Ann.  79. 
Where  the  constitution  of  the 
state  limited  the  tax  levy  to  ten 
mills,  a  levy  of  fifteen  mills  was 
legal,  a  portion  of  the  proceeds  of 
which  were  to  satisfy  antecedent 
contract  obligations  derived  from 
legislative  authority  valid  when  the 
contracts  were  made  and  protected 
by  the  provision  of  the  constitution 
of  the  United  States  against  impair- 
ing the  obligation  of  a  contract. 

Callaghan  v.  Town  of  Alexandria, 
52  La.  Ann.  1013;  Reynolds  v.  City 
of  Waterville,  92  Me.  292;  Chicago, 
B.  &  Q.  R.  Co.  v.  Klein,  52  Neb. 
258,  71  N.  W.  1069;  Darling  v.  Tay- 
lor, 7  N.  D.  538;  Weber  v.  Dillon, 
7  Okl.  568;  Houston  v.  City  of  Lan- 
caster, 191  Pa.  143.  The  constitu- 
tion of  Pennsylvania  (art.  9,  §  8), 
provides  that  the  debt  of  any  city 
shall  not  exceed  7%  of  the  assessed 
value  of  the  taxable  property  "nor 
shall  any  such  municipality  or  dis- 
trict incur  any  new  debt  or  increase 
its  indebtedness  to  an  amour t  ex- 
ceeding two  per  centum  upon  such 
assessed  valuation  of  property  with- 
out the  assent  of  the  electors."  The 
city  in  the  case  in  question  whose 
debt  had  not  reached  the  7%  limit 
was  held  as  not  having  the  author- 
ity by  successive  addition  of  2%  or 
less  to  increase  its  indebtedness  to 
the  limit.  The  increase  from  2% 


149 


TO  INCUR  INDEBTEDNESS. 


315 


method,  by  limiting  such  indebtedness  to  a  certain  proportion  of 
the  assessable  or  taxable  value  of  property  within  the  jurisdiction 
of  the  corporation.284  In  some  cases  words  are  found  to  the  effect 


to  7  %  it  was  held  could  only  be 
authorized  by  vote. 

Barr  v.  City  of  Philadelphia,  191 
Pa.  438;  Roye  v.  Borough  of  Colum- 
bia, 192  Pa.  146,  43  Atl.  597;  Gable 
v.  City  of  Altoona,  200  Pa.  15,  49 
Atl.  367;  Cleveland  v.  City  Council 
of  Spartanburg,  54  S.  C.  83;  Free- 
man v.  City  of  Huron,  10  S.  D.  368; 
Mitchell  County  v.  City  Nat.  Bank, 
15  Tex.  Civ.  App.  172;  Gould  v.  City 
of  Paris,  68  Tex.  511,  4  S.  W.  650. 

Nolan  County  v.  State,  83  Tex. 
182,  17  S.  W.  823.  Where  a  limit  is 
fixed  of  a  tax  of  one-fourth  of  one 
per  cent  per  annum  for  a  specified 
purpose  the  commissioners  author- 
ized to  handle  the  funds  thus  raised 
must  be  governed  by  the  official 
rules  made  out  by  the  tax  assessors. 
They  have  no  power  to  determine 
for  themselves  the  actual  value  of 
the  property  in  the  county  subject 
to  taxation.  Peck  v.  City  of  Hemp- 
stead,  27  Tex.  Civ.  App.  80,  65  S. 
W.  653;  Faulkner  v.  City  of  Seat- 
tle, 19  Wash.  320;  Graham  v.  City 
of  Spokane,  19  Wash.  447;  Rice 
v.  City  of  Milwaukee,  100  Wis.  516. 

264  Corning  v.  Meade  County 
Com'rs,  102  Fed.  57.  The  limitation 
of  the  indebtedness  of  a  county  is 
measured  by  the  last  assessed  val- 
uation of  property  before  the  issu- 
ing of  the  bonds,  not  by  the  valua- 
tion at  the  time  they  are  voted. 
See,  also,  cases  cited  in  the  opinion 
including  Dudley  v.  Lake  County 
Com'rs,  80  Fed.  672,  677;  Rathbone 
v.  Kiowa  County  Com'rs,  83  Fed. 
125,  132;  Speer  v.  Kearney  County 
Com'rs,  88  Fed.  749;  Board  of  Edu- 
cation of  Huron  v.  National  Life 


Ins.  Co.,  94  Fed.  324,  328;  Lake 
County  Com'rs  v.  Sutliff,  97  Fed. 
270,  281;  Butts  v.  Little,  68  Ga.  272; 
Dutton  v.  City  of  Aurora,  114  111. 
138;  Sackett  v.  City  of  New  Albany, 
88  Ind.  473. 

Campbell  v.  City  of  Indianapolis, 
155  Ind.  186.  The  school  city  of 
Indianapolis,  the  court  held  in  this 
case,  must  be  considered  separate 
from  the  civil  city  in  determining 
whether  the  amount  of  indebtedness 
had  passed  the  constitutional  limit. 
French  v.  City  of  Burlington,  42 
Iowa,  614;  McPherson  v.  Foster,  43 
Iowa,  48.  Where  indebtedness  in- 
curred is  a  part  in  excess  of  the  con- 
stitutional limitation  and  a  part 
within,  that  part  within  is  legal 
and  can  be  enforced. 

Way  v.  Fox,  109  Iowa,  340.  A 
court  house  the  cost  of  which  would 
raise  a  corporate  debt  beyond  the 
constitutional  limitation,  the  court 
held  in  this  case  could  be  legally 
constructed  where  such  excess  was 
paid  through  money  donations  by 
citizens. 

Hall  v.  City  of  Cedar  Rapids,  115 
Iowa,  199,  88  N.  W.  448.  A  munici 
pality  cannot  evade  the  constitu 
tional  limitation  by  acquiring  a  sys 
tern  of  waterworks,  the  same  to  be 
paid  for  through  the  application  of 
hydrant  rentals,  the  limit  of  indebt- 
edness having  been  reached. 

In  Ft.  Dodge  Elec.  Light  &  Pow- 
er Co.  v.  City  of  Ft.  Dodge,  115 
Iowa,  568,  89  N.  W.  7,  it  is  held 
that  Iowa  Const,  art.  11,  §  3,  limit- 
ing incurrable  indebtedness  to  5% 
of  the  taxable  property  of  a  munici- 
pality does  not  prevent  a  city  al- 


316 


POWERS. 


§   149 


that  public  corporations  shall  not  expend  in  any  year  moneys  in 
excess  of  the  actual  revenue  for  such  year,  and  that  this  yearly 
revenue  shall  be  devoted  to  the  expenditures  of  that  same  year.285 


ready  indebted  to  the  constitutional 
limit  from  making  a  contract  for 
street  improvements  to  be  paid  for 
by  special  assessments  on  property 
benefited,  and  also  that  where  the 
cost  of  paving  street  intersections  is 
paid  by  the  municipality  the  street 
paving  contract  may  be  void  as  to 
this  but  valid  as  to  that  portion 
providing  for  the  payment  of  the 
contract  obligations  by  abutting 
property  owners. 

Bartlett  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  32  Kan.  134;  City  of  Ashland 
v.  Culbertson,  103  Ky.  161,  44  S.  W. 
441;  Adams  v.  City  of  Waterville, 
95  Me.  242;  Reynolds  v.  City  of 
Waterville,  92  Me.  292,  42  Atl.  553. 
In  determining  the  limit  of  indebt- 
edness legally  incurrable  by  a  city, 
its  own  assessed  value  is  to  be  taken 
not  that  made  by  a  state  board. 
Browne  v.  City  of  Boston,  179  Mass. 
321,  60  N.  E.  934.  The  city  of 
Boston  in  order  to  purchase  certain 
lands,  the  cost  of  which  would  ex- 
ceed its  debt  incurring  power  under 
the  revised  statutes,  agreed  with  the 
owners  that  they  should  mortgage 
the  land  for  the  amount  of  the  ex- 
cess and  then  sell  the  equity  in  the 
land  to  the  city  subject  to  mort- 
gages. The  court  held  this  trans- 
action void  and  that  it  could  be  en- 
joined, as  the  payment  of  the  mort- 
gage was  an  obligation  devolving 
upon  the  municipality  and  in  effect 
an  increase  of  its  debt  beyond  the 
legal  limitation. 

Fair  v.  City  of  Grand  Rapids,  112 
Mich.  99,  70  N.  W.  411.  The  pro- 
vision of  a  city  charter  authorizing 
the  construction  and  operation  of 


an  electric  light  plant,  with  the  cre- 
ation of  an  indebtedness  for  that 
purpose,  upon  a  vote  of  the  people 
could  not  give  such  right  contrary 
to  the  provisions  of  the  constitution 
limiting  the  amount  of  indebtedness 
legally  incurrable. 

Murphy  v.  Cook  County  Com'rs, 
74  Minn.  28,  76  N.  W.  951,  constru- 
ing Minn.  Laws  1895,  c.  289.  Board 
of  Education  of  Eddy  v.  Bitting,  9 
N.  M.  588.  The  fact  that  there  are 
no  funds  in  the  hands  of  the  treas- 
urer with  which  to  pay  school  war- 
rants does  not  prevent  their  issu- 
ance up  to  the  4%  Federal  limita- 
tion. 

McMurtry  v.  Roger  Mills  County 
Com'rs,  6  Okl.  60;  City  of  Guthrie  v. 
Ter.,  1  Okl.  188,  31  Pac.  190;  Martin 
v.  Ter.,  5  Okl.  188,  48  Pac.  106.  The 
Federal  limitation  upon  municipal 
indebtedness  applies  to  that  created 
by  the  legislature  as  well  as  to  that 
incurred  by  the  action  of  municipal 
authorities. 

City  of  Erie's  Appeal,  91  Pa.  398. 
A  city  cannot  by  contract  create  a 
new  debt  in  excess  of  the  7%  consti- 
tutional limitation  already  reached. 
Childs  v.  City  of  Anacortes,  5  Wash. 
452.  The  constitutional  prohibition 
against  the  incurring  of  a  debt  in 
excess  of  one  and  one-half  per  cent 
of  the  value  of  taxable  property 
within  its  limits  held  not  the  source 
of  the  city's  power  to  incur  indebt- 
edness but  a  limitation  on  such  pow- 
er. Petros  v.  City  of  Vancouver,  13 
Wash.  423;  State  v.  Blake,  26  Wash. 
237,  66  Pac.  396;  Neale  v.  Wood 
County  Ct.,  43  W.  Va.  90.  See,  also, 
Burroughs,  Pub.  Secur.  c.  XIV,  for 


§  149 


TO  INCUR  INDEBTEDNESS. 


317 


The  existence  of  such  limiting  provisions  does  not  ordinarily  give 
to  public  authorities  the  discretionary  or  volitional  power  to  in- 
cur indebtedness  to  the  limit  fixed,  without  a  vote  of  the  people 


lengthy  quotation  from  state  consti- 
tution relative  to  the  incurring  of 
indebtedness. 

265  City  of  New  Orleans  v.  United 
States,  49  Fed.  40;  Crebs  v.  City 
ol  Lebanon,  98  Fed.  549,  determin- 
ing the  rights  of  a  corporate  cred- 
itor to  compel  by  mandamus  the 
levying  of  a  tax  for  the  payment  of 
a  judgment  against  it.  San  Francis- 
co Gas  Co.  v.  Brickwedel,  62  Cal. 
641;  Bradford  v.  City  &  County  of 
San  Francisco,  112  Cal.  537.  Under 
Cal.  Const,  art.  11,  §  18,  as  amend- 
ed in  1892,  the  court  held  that  a 
municipality  could  not,  even,  for 
pressing  wants,  during  the  remain- 
der of  a  year,  where  the  revenue 
for  that  year  had  been  collected  and 
expended,  incur  liabilities  to  be  paid 
from  the  revenues  of  a  subsequent 
year. 

Buck  v.  City  of  Eureka,  124  Cal. 
61.  An  implied  liability  on  the  part 
of  the  municipality  held  prohibited 
by  Cal.  Const,  art.  11,  §  18;  City 
of  Chicago  v.  Nichols,  177  111.  97. 
Rev.  St.  c.  24,  §  90,  provides  that 
the  expenditures  of  the  city  cannot 
lawfully  exceed  the  amount  provid- 
ed for  in  the  annual  appropriation 
bill  unless  an  improvement  is  neces- 
sitated by  "casualty"  or  "accident" 
happening  after  such  annual  appro- 
priation is  made.  The  court  held 
the  necessity  for  additional  light 
required  by  the  construction  of  an 
elevated  railroad  was  not  "an  acci- 
dent" or  "a  casualty"  so  as  to  au- 
thorize a  further  expenditure. 

Hodges  v.  Crowley,  186  111.  305; 
Dehm  v.  City  of  Havana,  28  111.  App. 
520.  City  of  Covington  v.  McKenna, 


99  Ky.  508,  construing  Const.  Ky. 
§  157,  which  prohibits  any  city  from 
becoming  indebted  to  an  amount  ex- 
ceeding in  any  year  the  revenue  pro- 
vided for  such  year  without  the  con- 
sent of  two-thirds  of  the  voters  there- 
of voting  at  an  election  to  be  held 
for  that  purpose. 

Knipper  v.  City  of  Covington,  22 
Ky.  L.  R.  676,  58  S.  W.  498.  An 
election  is  necessary  even  where  an 
"emergency"  exists;  the  Ky.  Const. 
|  158,  providing  that  municipali- 
ties shall  not  be  authorized  to  in- 
cur indebtedness  in  excess  of  a  cer- 
tain limit  "unless  in  case  of  'emer- 
gency' the  public  health  or  safety 
should  so  require." 

City  Council  of  Richmond  v.  Pow- 
ell, 16  Ky  L.  R.  174,  27  S.  W.  1. 
Section  157  of  the  Const,  of  Ky. 
held  in  this  case  to  apply  to  an  in- 
debtedness for  school  purposes  as 
well  as  those  strictly  municipal. 
State  v.  Clinton,  28  La.  Ann.  400; 
Creole  Steam  Fire  Co.  v.  City  of 
New  Orleans,  39  La.  Ann.  981,  3 
So.  177;  In  re  Taxpayers  &  Free- 
holders of  Plattsburgh,  27  App.  Div. 
353,  50  N.  Y.  Supp.  356;  Municipal 
Secur.  Co.  v.  Baker  County,  33  Or. 
338,  54  Pac.  174. 

In  Booth  v.  Weiss,  15  Phila.  (Pa.) 
159,  an  obligation  incurred  for  the 
present  payment  of  money  where 
the  city  had  funds  in  its  treasury 
was  not  held  such  an  incurrence  of 
indebtedness  as  to  render  it  void 
for  being  in  excess  of  the  legal  limit. 

Kuhls  v.  City  of  Laredo  (Tex. 
Civ.  App.)  27  S.  W.  791.  A  city  is 
not  liable  on  a  contract  for  the  con- 
struction of  a  sewer  where  no  pro- 


318 


POWERS. 


§    149 


upon  its  creation.  This  is  necessary.  The  authority  to  incur  in- 
debtedness within  constitutional  or  other  limiting  provisions  pro- 
ceeds and  is  derived  from  the  qualified  voters  of  the  corpora- 
tion.266 What  is  or  may  be  considered  an  indebtedness  coining 
within  limits  thus  fixed  will  be  considered  in  later  sections.261 
It  is  impossible  in  the  text  to  state  a  rule  or  principle  of  law 
which  will  be  uniform  in  its  application  throughout  the  country. 


vision  was  made  .at  the  time  of  its 
execution  for  payments  thereunder 
as  required  by  Tex.  Const,  art.  11, 
§  5. 

Mitchell  County  v.  City  Nat.  Bank, 
91  Tex.  361.  Under  Tex.  Const,  art. 
11,  §  7,  providing  that  no  debt  shall 
be  incurred  by  any  municipality  un- 
less provision  is  made  for  levying 
a  sufficient  tax  to  pay  annually  the 
interest  and  provide  for,  at  least,  a 
2%  sinking  fund,  a  debt  in  order 
to  be  valid  must  have  this  rate  of 
taxation  so  definitely  fixed  that  it 
is  merely  a  ministerial  act  to  de- 
termine it. 

Mineralized  Rubber  Co.  v.  City  of 
Cleburne,  22  Tex.  Civ.  App.  621.  A 
municipal  contract  for  the  purchase 
of  fire  hose  without  any  provision 
being  made  for  its  payment  as  re- 
quired by  Const,  art  11,  is  void. 

see  Cunningham  v.  City  of  Cleve- 
land, 98  Fed.  657;  Hudson  v.  City 
of  Marietta,  64  Ga.  286.  A  munici- 
pal corporation  has  no  power  to 
incur  indebtedness  for  the  purchase 
of  a  new  steam  fire  engine  without 
an  election  held  in  accordance  with 
the  provisions  of  the  Constitution 
of  the  state. 

Town  of  Fowler  v.  Austin  Mfg. 
Co.,  5  Ind.  App.  489,  32  N.  E.  596. 
Rev.  St.  Ind.  §  3342,  determines  the 
manner  in  which  certain  indebted- 
ness can  be  legally  incurred  by  in- 
corporated towns.  It  was  held,  in 
this  case,  that  such  provision  did 


not  prohibit  the  purchase  of  a  road 
scraper,  without  complying  with  the 
statutory  provisions,  the  note  given 
for  its  payment  being  valid. 

City  of  Covington  v.  McKenna,  18 
Ky.  L.  R.  288,  36  S.  W.  518;  Mays- 
ville  &  L.  Turnpike  Road  Co.  v. 
Wiggins,  20  Ky.  L.  R.  724,  47  S.  W. 
434;  Whaley  v.  Com.,  23  Ky.  L.  R. 
1292,  61  S.  W.  35;  Grand  Island  & 
W.  C.  R.  Co.  v.  Dawes  County,  62 
Neb.  44,  86  N.  W.  934;  Sener  v. 
Borough  of  Ephrata,  176  Pa.  80; 
Gable  v.  City  of  Altoona,  200  Pa. 
15;  Hubbell  v.  Town  of  Custer  City, 
15  S.  D.  55,  87  N.  W.  520.  A  peti- 
tion signed  by  the  resident  owners 
of  five-eighths  of  the  taxable  proper- 
ty of  the  municipality  is  required  by 
Comp.  Laws,  §  1048,  to  authorize  a 
municipality  to  borrow  money  or 
incur  debt.  The  petition  in  this 
case  though  lacking  in  formality 
was  held  sufficient  under  the  statute. 

Rehmke  v.  Goodwin,  2  Wash.  St. 
676;  Strain  v.  Young,  25  Wash., 578. 
Const,  art.  8,  §  6,  providing  that 
no  county  shall  become  indebted  ex- 
ceeding a  certain  amount  without 
the  assent  of  three-fifths  of  the  vot- 
ers voting  at  an  election  to  be  held 
for  that  purpose,  requires  this  pro- 
portion voting  on  that  particular 
proposition  not  such  proportion  of 
the  total  votes  cast  at  the  election. 
Hazeltine  v.  Blake,  26  Wash.  231. 

267  post,  §§  152  et  seq. 


§   149  TO  INCUR  INDEBTEDNESS.  319 

There  will  be  found  upon  an  examination  of  the  cases  two  con- 
flicting principles  to  which  attention  has  already  been  called, 
namely,  the  fixed  purpose  on  the  part  of  the  courts  to  limit  and 
restrict  in  every  possible  way  the  incurring  of  unnecessary  and 
extravagant  debts,  even  though  the  funds  may  be  used  for  a 
proper  municipal  or  public  purpose,  and  that  other  one,  that  a 
public  corporation  may,  through  its  duly  elected  and  qualified 
agents,  contract  obligations  and  incur  indebtedness  morally  bind- 
ing upon  the  corporation,  the  proceeds  enjoyed  and  used  by  the 
public  and  therefore  which  should  be  paid  for  by  those  enjoying 
such  benefit  and  advantage. 

It  is  quite  uniformly  held  that  where  limiting  provisions  of  a 
public  character  exist  as  to  the  amount  or  the  purpose  of  indebt- 
edness legally  incurred,  those  dealing  with  the  corporations  are 
bound  to  take  notice  of  such  limitations,  and  if  they  contract  or 
deal  with  the  corporation  the  result  being  an  indebtedness  or  an 
obligation  in  excess  of  the  amount  limited,  they  do  so  at  their 
risk.  In  other  words  the  doctrine  of  notice  of  limitation  of  cor- 
porate powers,  so-called,  as  applied  to  private  corporations,  is 
applied  with  even  more  strictness  to  the  acts  of  a  public  corpora- 
tion. This  doctrine,  as  will  be  remembered,  is  that  a  corporation 
is  an  artificial  person  of  limited  capacity  or  powers.  Those  deal- 
ing with  it  are  charged  legally  with  knowledge  of  this  fact,  and 
if  in  transactions  the  corporation  exceeds  its  powers  those  who 
are  legally  chargeable  with  knowledge  of  the  existence  of  the 
limitation  cannot  complain  if  they  lose  through  their  negligence 
or  failure  to  see  that  the  corporation  is  acting  in  excess  of  legal 
authority.268  But  even  here  the  courts  for  the  purpose  often  of 

268  Jutte  &   Foley   Co.   v.   City   of  power    is    limited    by    the    charter? 

Altoona  (C.  C.  A.)  94  Fed.  61;  Game-  What  is  an  apparent  power?     Is  it 

well    Fire   Alarm    Tel.    Co.    v.    City  such  as  may  be  implied  from  a  gen- 

of  Laporte,    96   Fed.    664,    102   Fed.  eral  agency?    *     *    *    Certainly  not. 

417.     See,  also,  City  of  Litchfield  v.  It  must  follow  that  there  is  no  ap- 

Ballou,  114  U.   S.  190;   and  44  Am.  parent  power  upon  which  one  may 

St.  Rep.  242;   Arbuckle-Ryan  Co.  v.  rely,  but  only  the  real  actual  power 

City  of  Grand  Ledge,  122  Mich.  491,  lodged   in  the   municipality   by  the 

81  N.  W.  358.    In  this  case  the  court  charter.     Its    charter    is    the    sole 

say:     "Have  parties  dealing  with  a  guide  which  all  are  held  to  know, 

municipal   corporation   the   right  to  To    that    alone,    parties    must    look 

rely  upon  an  apparent  power  in  its  and  act  at  their  peril." 
agent,   the   common   council,    whose 


320 


POWERS. 


149 


effecting  substantial  justice  as  between  parties,  hold  squarely 
that  one  who  has  enjoyed  the  use  or  the  benefit  of  a  transaction 
ought  not  and  cannot  be  heard  to  say  that  because  he  ought  not 
to  have  enjoyed  it  he  should  not  pay  for  it.  The  cases,  however, 
where  this  doctrine  can  and  should  be  applied  strictly,  must  be 
distinguished  and  differentiated  from  those  where  it  should  not 
control.  The  fact  of  whether  the  limitation  depends  upon  data  or 
records  within  the  reach  of  those  dealing  with  the  corporation, 
or  whether  it  depends  upon  such  data  and  records  not  within 
the  public  knowledge  or  open  for  public  inspection,  will  deter- 
mine this  point.  Where  the  latter  is  true  the  doctrine  will  not 
apply;269  where  the  former  state  of  facts  exists  the  doctrine  is 
usually  held.270 


zeo  in  re  City  of  New  York,  72  N. 
Y.  Supp.  378.  The  cost  of  improv- 
ing a  street,  though  there  was  a 
possibility  of  its  exceeding  the 
limit  of  the  city  debt  declared  by 
the  Const,  art.  8,  §  10,  it  was  held 
could  be  raised,  the  official  re- 
port of  the  comptroller  at  the  time 
of  the  institution  of  the  proceedings 
not  showing  an  excess  and  the  in- 
dication being  that  there  would  be 
an  ample  margin  before  the  debt 
limitation  would  be  reached. 

Johnson  v.  Pawnee  County  Com'rs. 
7  Okl.  686.  It  must  be  affirmatively 
shown  by  a  coanty  that  its  war- 
rants were  not  issued  in  anticipa 
tion  of  taxes  already  levied. 

270  Nesbit  v.  Riverside  Independ- 
ent Dist.,  144  U.  S.  610;  affirming 
25  Fed.  635.  The  purchaser  of  bonds 
no  matter  what  recitals  appear  on 
their  face  is  bound  to  take  notice 
of  the  constitutional  limitation  and 
of  the  public  official  assessment  of 
taxable  property  within  the  district. 

Post  v.  Pulaski  County,  49  Fed. 
628.  The  recital  in  county  bonds 
that  they  are  issued  pursuant  to  the 
order  of  the  county  court  puts  all 
persons  upon  inquiry  as  to  »ne  con- 
ditions of  this  order. 


Francis  v.  Howard  County,  50  Fed. 
44;  East  St.  Louis  Gas  Light  &  Coke 
Co.  v.  City  of  East  St.  Louis,  45 
111.  App.  591;  Holliday  v.  Hilder- 
brandt,  97  Iowa,  177,  66  N.  W.  89 
Purchasers  of  bonds  are  bound  at 
their  peril  to  take  notice  of  the  au- 
thorized official  valuation  of  taxable 
property  upon  which  a  constitu- 
tional indebtedness  is  based.  The 
court  say;  "Purchasers  of  such 
bonds  are  bound,  at  their  peril,  to 
take  notice  of  the  constitutional  lim- 
itation upon  the  power  of  such  cor- 
porations to  become  indebted  and 
of  such  facts  as  the  authorized  offi- 
cial assessments  disclose  touching 
the  valuation  of  all  taxable  prop- 
erty within  the  limits  of  the  cor- 
poration," citing  Buchanan  v.  City 
of  Litcbfield,  102  U.  S.  278;  Dixon 
County  v.  Field,  111  U.  S.  83;  Lake 
County  v.  Graham,  130  U.  S.  G74; 
and  Boon  Tp.  v.  Cummins,  142  U.  S. 
366,  12  Sup.  Ct.  220. 

First  Nat.  Bank  of  Decoran  v. 
District  Tp.  of  Boon,  86  Iowa,  330, 
53  N.  W.  301;  Anderson  v.  Orient 
Fire  Ins.  Co.,  88  Iowa,  593:  State 
v.  Town  of  Columbia,  111  Mo.  365; 
Cleveland  v.  City  Council  of  Srar- 
t-anburg,  54  S.  C.  83,  31  S.  E.  871; 


§  149 


TO  INCUR  INDEBTEDNESS. 


The  failure  on  the  part  of  public  authorities  to  comply  with 
constitutional  or  other  provisions  limiting  the  indebtedness 
legally  incurrable  usually  renders  void  their  acts  and  the  indebt- 
edness incurred  by  them,  and  this  is  especially  true  if  power  is 
lacking  rather  than  a  failure  to  comply  with  some  formality 
required  by  law  in  the  exercise  of  a  granted  power.271 

The  total  obligation  liable  to  rest  upon  a  public  corporation  by 
the  terms  of  a  contract  extending  through  a  series  of  years  for 


Peck  v.  City  of  Hempstead,  27  Tex. 
Civ.  App.  80,  65  S.  W.  653;  Fowler 
v.  City  of  Superior,  85  Wis.  411. 

27i  See  note  44  Am.  St.  Rep.  241- 
243;  Norton  v.  Taxing  Dist.  of 
Brownsville  Com'rs,  129  U.  S.  479. 
The  effect  of  a  constitutional  amend- 
ment restricting  the  incurring  of 
municipal  indebtedness  upon  a  pre- 
vious legislative  act  was  to  abro- 
gate such  previous  legislative  act 
and  render  void  an  indebtedness  in- 
curred through  proceedings  author- 
ized by  this  legislative  act  and  pend- 
ing or  not  completed  at  the  time  of 
the  passage  of  the  constitutional 
amendment.  Dodge  v.  City  of  Mem- 
phis, 51  Fed.  165;  Lyon  County  v. 
Ashuelot  Nat.  Bank,  87  Fed.  137; 
affirming  81  Fed.  127;  Parks  v.  Sol- 
diers' &  Sailors'  Home  Com'rs,  22 
Colo.  86;  following  In  re  Appropria- 
tions by  Gen.  Assem.,  13  Colo.  316; 
Dunbar  v.  Canyon  County  Com'rs, 
5  Idaho,  407,  49  Pac.  409;  Fuller  v. 
City  of  Chicago,  89  111.  282;  Gris- 
wold  v.  City  of  East  St.  Louis,  47 
111.  Ap;\  480. 

School  Town  of  Winamac  v.  Hess, 
151  Ind.  229,  50  N.  E.  81.  The  ex- 
cess of  indebtedness  only  held  void 
in  this  case,  and  a  contract  for  the 
construction  of  a  school  house  the 
cost  of  which  would  raise  the  town 
indebtedness  beyond  the  constitu- 
tional limitation  was  held  enforce- 
able, that  part  of  the  contract  price 

Abb.  Corp.— 21. 


within  the  limit,  so  the  court  held, 
being  a  sufficient  consideration.  Mc- 
Pherson  v.  Foster,  43  Iowa,  48.  The 
excess  only  held  void. 

McAleer  v.  Angell,  19  R.  I.  688, 
36  Atl.  588.  Where  the  debt  limit 
has  been  reached,  a  town  cannot 
contract  a  further  liability  even  for 
materials  to  be  used  in  repairing 
highways  which  it  is  required  by 
statute  to  keep  in  repair.  Allen  v. 
City  of  Davenport,  107  Iowa,  90; 
Painter  v.  City  of  Norfolk,  62  Neb. 
330,  87  N.  W.  31.  The  city  was 
authorized  to  indorse  on  bonds  is- 
sued by  a  private  waterworks  com- 
pany that  it  would  pay  the  annual 
interest  in  lieu  of  hydrant  rentals 
to  such  amount.  The  city  clerk  in- 
dorsed the  statement  that  the  city 
would  pay  the  interest  as  it  ma- 
tured. It  was  held  that  the  in- 
dorsement as  made  was  in  excess 
of  the  authority  conferred  by  the 
ordinance  and  therefore  void.  Peo- 
ple v.  Parmerter,  158  N.  Y.  385; 
Drhew  v.  Altoona  City,  121  Pa.  401, 
15  Atl.  636.  A  city  not  liable  for 
damages  on  account  of  a  breach  of 
contract  where  the  amount  of  the 
obligation  would  raise  the  munici- 
pal indebtedness  above  the  constitu- 
tional limit. 

State  v.  McGraw,  12  Wash.  541; 
State  v.  Winter,  15  Wash.  407.  The 
assumption  of  indebtedness  created 
by  residents  of  the  same  territory, 


322 


POWERS. 


§   149 


services  to  be  performed  from  time  to  time  is  not  usually  con- 
sidered an  indebtedness  to  be  included  within  the  constitutional 
or  other  limitation.  A  future  contract  obligation  is  not  an  abso- 
lute liability  but  is  contingent  on  the  performance  of  the  contract 
before  the  corresponding  obligation  on  the  part  of  the  munici- 
pality is  created.272 


included  within  the  limits  of  a  mu- 
nicipal corporation  subsequently  or- 
ganized, was  held  constitutional  and 
within  the  limits  of  legislative  pow- 
er. 

272  Walla  Walla  City  v.  Walla  Wal- 
la Water  Co.,  172  U.  S.  1;  Anoka 
Water  Works,  E.  L.  &  P.  Co.  v.  City 
of  Anoka,  109  Fed.  580;  McBean  v. 
City  of  Fresno,  112  Cal.  159;  City 
of  San  Diego  v.  Higgins,  115  Cal. 
170.  A  contract  extending  over  sev- 
eral years  is  not  invalidated  by  the 
fact  that  the  aggregate  amount  of 
the  contract  obligation  as  estimated 
by  the  municipality  exceeds  its  con- 
stitutional limit. 

City  of  Valparaiso  v.  Gardner,  97 
Ind.  1;  Crowder  v.  Town  of  Sulli- 
van, 128  Ind.  486;  Seward  v.  Town 
of  Liberty,  142  Ind.  551;  Foland  v. 
Town  of  Frankton,  142  Ind.  546; 
Davis  v.  City  of  Des  Moines,  71 
Iowa,  500,  32  N.  W.  470;  Grant  v. 
City  of  Davenport,  36  Iowa,  396; 
Ludington  Water-Supply  Co.  v.  City 
of  Ludington,  119  Mich.  480,  78  N. 
W.  558:  "The  charter  does  limit 
the  authority  of  the  council  in  re- 
spect to  incurring  indebtedness,  but 
the  rule  that  a  contract  for  future 
service  to  be  paid  for  as  rendered 
is  not  an  incurring  of  indebtedness, 
is  supported  by  abundant  authority." 

Smith  v.  Town  of  Dedham,  144 
Mass.  177,  10  N.  E.  782;  Saleno  v. 
City  of  Neosho,  127  Mo.  627,  30  S. 
W.- 190;  Lamar  Water  &  Elec.  Light 
Co.  v.  City  of  Lamar,  128  Mo.  188; 
Ter.  v.  City  of  Oklahoma,  2  Okl. 


158;  Wade  v.  Borough  of  Oakmont, 
165  Pa.  479.  In  Duncan  v.  City  of 
Charleston,  60  S.  C.  532,  the  court 
held  that  a  contract  for  the  supply 
of  water  and  light  to  a  city  re- 
quiring the  payment  of  a  certain 
sum  each  year  out  of  its  current  re- 
ceipts was  void,  being  in  violation 
of  a  constitutional  provision  in 
South  Carolina  prohibiting  the  in- 
curring of  indebtedness  in  excess  of 
a  certain  per  cent  of  the  value  of 
the  taxable  property,  the  city  mak- 
ing such  contract  being  indebteded 
at  that  time  to  an  amount  in  ex- 
cess of  the  constitutional  limitation. 

Stedman  v.  City  of  Berlin,  97  Wis. 
505,  73  N.  W.  57.  See,  also,  §  257, 
post,  and  authorities  cited.  But  see 
Coulson  v.  City  of  Portland,  Deady, 
481,  Fed.  Gas.  No.  3,275. 

City  of  Springfield  v.  Edwards,  84 
111.  626;  Prince  v.  City  of  Quincy,  28 
111.  App.  490;  affirmed  128  111.  443; 
Culbertson  v.  City  of  Fulton,  127  111. 
30;  Beard  v.  City  of  Hopkinsville,  95 
Ky.  239;  Niles  Water- Works  Co.  v. 
City  of  Niles,  59  Mich.  311;  Daven- 
port v.  Kleinschmidt,  6  Mont.  502; 
Read  v.  Atlantic  City,  49  N.  J.  Law, 
558. 

The  court  after  reviewing  several 
cases  said:  "The  plain  object  of 
such  restrictions  is  to  require  that 
all  moneys  which  are  to  be  paid  for 
municipal  expenses  after  the  debt 
has  reached  the  fixed  limit  shall  be 
raised  by  taxation.  In  view  of  this 
object  it  is  clear  (and  all  the  cases 
agree  in  this)  that  prohibitions 


§  ISO 


TO  INCUR  INDEBTEDNESS. 


323 


§  150.    Retroactive  effect  of  limitations. 

The  question  of  the  retroactive  effect  of  such  provisions  has 
arisen  at  times.  The  uniform  decision  of  courts  has  been  that 
the  adoption  of  constitutional  provisions  or  the  passage  of  legis- 
lation limiting  and  restricting  the  power  and  capacity  of  a  pub- 
lic corporation  to  incur  indebtedness  of  any  character  does  not 
render  illegal  or  void  indebtedness  which  was  valid  at  the  time  of 
adoption  of  such  constitutional  amendment  or  the  passage  of 
such  legislation  though  such  indebtedness  may  be  in  excess  of  the 
limit  therein  fixed.273  And  it  has  even  been  held  that  debts 


against  increasing  the  indebtedness 
or  the  debt  of  a  municiaplity  are  not 
to  be  construed  as  limited  to  obliga- 
tions which  are  debts  eo  nomine, 
but  are  to  be  extended  to  all  con- 
tracts for  the  payment  of  money  or 
contracts  whereon  the  payment  of 
money  may  be  enforced.  But  where 
the  money  to  be  paid  upon  such  con- 
tracts is  provided  for  to  be  raised 
by  taxation,  upon  some  fixed  and 
definite  scheme,  such  contracts  are 
not,  in  my  judgment,  within  such 
prohibitions.  Where,  however,  the 
money  required  to  meet  such  con- 
tracts is  not  provided  for  either 
by  being  legally  ordered  to  be  raised 
by  taxation  and  appropriated  for 
that  purpose,  or  by  some  legislative 
scheme  which  posftively  prescribes 
that  it  shall  be  raised  by  taxation 
and  appropriated  for  its  payment  as 
needed,  then  such  contracts  do  in- 
crease the  indebtedness  or  debt  of 
municipal  corporations  within  the 
meaning  of  such  prohibitions.  Any 
other  construction  would  deprive 
these  restrictions  of  the  force  requi- 
site to  reach  and  cure  the  evil  in- 
tended to  be  prevented  thereby." 
Salem  Water  Co.  v.  City  of  Salem,  5 
Or.  29.  An  agreement  to  pay  the 
Salem  Water  Co.,  $1,800  per  annum 
for  seventeen  years  in  quarterly  in- 
stallments for  water  to  be  furnished 


the  city,  created  a  liability  against 
the  city  within  the  meaning  of  a 
.charter  provision  prohibiting  the 
common  council  from  creating  "any 
debt  or  liabilities  in  any  manner" 
against  the  city  which  shall  exceed 
the  sum  of  $1,000.  City  of  Erie's 
Appeal,  91  Pa.  398. 

273Sibley  v.  City  of  Mobile,  3 
Woods,  535,  Fed.  Cas.  No.  12,829. 
Legislation  affecting  a  contract  obli- 
gation lawfully  entered  into  and  re- 
sulting in  the  incurring  of  an  in- 
debtedness is  inoperative  so  far  as  it 
impairs  that  contract.  Aydelott  v. 
Town  of  South  Louisville,  16  Ky.  L. 
R.  166,  26  S.  W.  717;  City  of  Ludlow 
v.  Board  of  Education  of  Ludlow, 
16  Ky.  L.  R.  805,  29  S.  W.  854;  War- 
ren v.  City  of  Newport,  23  Ky.  L.  R. 
1006,  64  S.  W.  852;  Bank  of  Colum- 
bia v.  Taylor  County,  23  Ky.  L.  R. 
1483,  65  S.  W.  451;  City  of  Ashland 
v.  Culbertson,  103  Ky.  161;  Kansas 
City  v.  Wyandotte  Gas  Co.,  9  Kan. 
App.  325,  61  Pac.  317.  The  passage 
of  a  subsequent  law  limiting  assess- 
ments for  the  purpose  of  lighting 
streets  and  other  public  places  does 
not  authorize  a  municipality  to  re- 
pudiate a  legal  contract  entered  into 
before  the  passage  of  such  legisla- 
tion. 

State  v.  Graham,  23  La.  Ann.  622. 
In  Johnson  v.  Pawnee  County 


POWERS.  §   151 

treated  prior  to  the  adoption  of  a  state  constitution  are  not  to 
oe  considered  in  determining  the  indebtedness  of  a  county  with 
reference  to  the  limitation  placed  upon  such  indebtedness  by  the 
constitution.274 

§  151.    Construction  of  statutory  and  other  limitations. 

The  courts  in  construing  the  extent  and  application  of  charter, 
statutory  or  constitutional  limitations  upon  the  power  of  a  public 
corporation  to  incur  an  indebtedness,  whether  represented  by 
negotiable  bonds  or  other  instruments,  have  constantly  in  mind 
the  general  limitations  which  should  be  applied  in  determining 
the  extent  of  power  attempted  to  be  exercised  by  such  corpora- 
tions. The  strict  rule  of  construction  therefore  is  the  one  most 
generally  adopted.  In  this  there  is  a  difference  between  a  public 
and  a  private  corporation.  The  liberal  rule  of  construction  is  the 
one  usually  adopted  by  the  courts  in  cases  of  doubt  in  dealing 
with  the  attempted  exercise  of  corporate  powers  by  a  private  cor- 
poration, because  that  construction  tends  to  facilitate  the  pro- 
motion of  the  enterprise,  and  the  courts  in  such  cases  always  hold 
that  where  this  can  be  accomplished  through  the  adoption  of  the 
liberal  rule  of  construction  it  should  be  done,  rather  than  the  con- 
trary one  which  might  lead  to  the  defeat  of  the  enterprise  or  to 
the  impairment  of  its  success.  The  fundamental  differences  be- 
tween a  public  and  a  private  corporation  necessarily  lead  the 
courts  to  adopt  the  strict  rule  of  construction  as  applied  to  all 

Com'rs,  7  Okl.  686,  it  was  held  that  1143;    Lawrence    County    v.    Meade 

the    indebtedness  to   be   taken    into  County,  10  S.  D.  175;  Pleasant  Val- 

consideration  in  determining  wheth-  ley   Coal   Co.   v.   Salt   Lake   County 

er  or  not  the  federal  limitation  had  Com'rs,  15  Utah,  97,  48  Pac.   1032; 

been  exceeded  should  be  that  at  the  Neale   v.   Wood   County   Ct,   43   W. 

time  certain  indebtedness  was  voted  Va.  90. 

not  the  time  at  which  the  warrants        274  Rollins  v.   Rio  Grande  County 

or    other   evidence    of    indebtedness  Com'rs,    90    Fed.    575,    citing    Lake 

authorized     were     actually     issued.  County  v.   Rollins,   130   U.    S.   662; 

Citing    Seward    County    Com'rs     v.  Wider  v.  Rio  Grande  County  Com'rs, 

Aetna  Life  Co.,  32  C.  C.  A.  585,  90  41  Fed.  512;  Lake  County  Com'rs  v. 

Fed.    222;     Rollins    v.    Rio    Grande  Standley,  24  Colo.  1,  49  Pac.  29;  Peo- 

County  Com'rs,  33  C.  C.  A.  181,  90  pie  v.  Rio  Grande  County  Com'rs,  11 

Fed.  575;  and  Mountain  Grove  Bank  Colo.  App.  124,  52  Pac.   748;    Myers 

v.    Douglas    County,    146    Mo.    42;  v.  City  of  Jeff ersonville,  145  Ind.  431, 

Baird  v.  Todd,  27  Neb.  782,  43  N.  W.  44  N.  E.  452. 


§  151 


TO  INCUR  INDEBTEDNESS. 


325 


acts  of  public  organizations.  These  differences  consist  in  the  pur- 
pose of  organization,  source  of  revenue,  and  expenditure  of 
funds.  Through  the  strict  rule  of  construction  the  power  to 
incur  indebtedness  of  whatever  character  is  denied  in  cases  of 
doubt.  There  exists  the  difficulty  already  suggested  that  the  in- 
debtedness may  be  one  morally  binding  upon  a  community  but 
in  excess  of  the  legal  limitation  or  not  incurred  pursuant  to  the 
formal  acts  required  by  law.  In  such  case  the  courts,  in  order 
to  render  substantial  justice  as  between  the  parties,  may  adopt 
the  less  strict  rule  of  construction  which  will  permit  the  enforce- 
ment of  a  moral  obligation.  In  the  note  will  be  found  reference 
to  cases  construing  particular  charter,  statutory  and  constitu- 
tional provisions  as  affecting  the  power  of  different  public  cor- 
porations to  incur  indebtedness.275 


2-5  Alabama:  Alabama  G.  S.  R. 
Co.  v.  Reed,  124  Ala.  253,  27  So.  19. 
Under  Const,  art.  11,  §  5,  which  pro- 
hibits counties  from  levying  an 
amount  greater  than  one-half  of  one 
per  cent  per  annum  except  to  pay  a 
liability  for  the  erection  of  necessary 
buildings,  etc.,  a  tax  was  held  prop- 
erly levied  for  the  purpose  of  furn- 
ishing a  court  house  with  suitable 
furniture,  the  court  holding  that  the 
authority  for  levying  a  tax  for  the 
erection  of  a  court  house  would 
necessarily  include  the  power  to 
provide  suitable  furnishings. 

Arizona:  McRae  v.  County  of 
Cochise  (Ariz.)  44  Pac.  299.  A  re- 
ward of  $3,000  offered  by  a  board  of 
county  supervisors  to  be  paid  to  any 
person  first  securing  an  artesian  well 
in  the  county,  the  court  holds  an 
obligation  or  indebtedness  within 
the  meaning  of  Act  of  Cong.  1886 
known  as  the  "Harrison  Act"  limit- 
ing the  indebtedness  of  any  county 
to  four  per  cent  of  the  value  of  the 
taxable  property.  The  reward  as 
offered  was  in  excess  of  the  four  per 
cent  limit  and  the  county  was  there- 


fore held  incapable  of  contracting 
this  obligation. 

California:  Shaw  v.  Statler,  74 
Cal.  258.  The  county  income  for 
each  year  must  be  used  to  pay  the 
debts  of  that  year,  the  constitution 
of  the  state  providing  that  no  county 
shall  incur  any  liability  or  indebted- 
ness exceeding  in  any  year  its  an- 
nual income  without  a  two-thirds 
vote  of  the  electors.  In  Welch  v. 
Strother,  74  Cal.  413,  construing 
same  constitutional  provision,  the 
court  held  that  the  salaries  of  the 
public  officers  being  fixed  by  law  and 
payable  out  of  the  general  fund  they 
should  be  paid  in  the  absence  of 
any  showing  that  the  general  fund 
would  be  exhausted  by  such  pay- 
ment, although  the  amount  thus 
paid  in  one  month  exceeded  its  pro- 
portionate share  of  the  limit  allowed 
for  the  year. 

Smith  v.  Broderick,  107  Cal.  644; 
Pacific  Undertakers  v.  Widber,  113 
Cal.  201.  A  claim  under  a  contract 
between  a  board  of  supervisors  and 
a  firm  of  undertakers  by  which  they 
were  to  bury  the  indigent  dead  for 


326 


TO  INCUR  INDEBTEDNESS. 


§  152 


152.    Definition  of  the  word  "indebtedness"  or  "debt"  as 
used  in  limiting  laws. 

The   word  "debt"   or  "indebtedness"  is  the   one   ordinarily 


the  fiscal  year  at  a  certain  sum  for 
each  burial  was  held  in  this  case  as 
being  "indebtedness"  within  the 
meaning  of  art.  11,  §  18  of  the  con- 
stitution. City  of  San  Diego  v.  Hig- 
gins,  115  Cal.  170;  following  Mc- 
Bean  v.  City  of  Fresno,  112  Cal.  159. 
These  cases  hold  that  a  contract  ex- 
tending over  several  years  is  not  in- 
validated by  the  fact  that  the  ag- 
gregate amount  of  the  contract  obli- 
gation as  incurred  by  the  municipal- 
ity exceeds  its  constitutional  limita- 
tion. W.  W.  Montague  &  Co.  v.  Eng- 
lish, 119  Cal.  225.  Materials  pur- 
chased by  a  city  during  one  year 
cannot  be  paid  for  out  of  the  rev- 
enues of  any  future  year. 

Colorado:  Dudley  v.  Lake  Coun- 
ty Com'rs  (C.  C.  A.)  80  Fed.  672,  but 
see  dissenting  opinion  of  Thayer, 
Circuit  Judge,  and  cases  cited.  In- 
debtedness authorized  by  the  elec- 
tors to  be  incurred  by  a  county  war- 
rants the  incurring  of  an  indebted- 
ness to  a  less  amount  than  that 
authorized,  construing  art.  11,  §  6 
of  the  Const,  of  Colo.  In  re  Canal 
Certificates,  19  Colo.  63,  construing 
Act  of  April  17,  1893,  providing  for 
payment  of  labor  and  materials  in 
the  completion  of  a  state  canal  by 
certificate  of  indebtedness  issued  by 
the  auditor  of  the  state.  In  re  Cas- 
ual Deficiency,  21  Colo.  403;  Colo. 
Const,  art.  11,  §  3,  prohibits  the  state 
from  contracting  any  debt  by  loan 
except  to  provide  for  casual  de- 
ficiencies. Act  April  8,  1895,  con- 
strued in  this  case  and  certain  bonds 
issued  under  its  authority  held  as 
not  in  conflict  with  such  constitu- 


tional provision.  Lake  County 
Com'rs  v.  Standley,  24  Colo.  1,  49 
Pac.  23.  Under  the  constitutional 
limitation  upon  the  amount  of  in- 
debtedness, the  court  held  that  a 
county's  power  to  incur  indebtedness 
based  on  its  assessed  valuation  was 
measured  by  the  corrected  assess- 
ment for  the  current  fiscal  year. 

Georgia:  Gavin  v.  City  of  Atlanta, 
86  Ga.  132.  In  determining  the  au- 
thority of  a  municipality  to  incur 
indebtedness  under  Const.  1877,  art. 
7,  §  7,  the  court  held  that  where  a 
special  method  for  registration  of 
voters  was  provided,  two-thirds  of 
the  number  registered  was  sufficient 
to  authorize  the  issuance  of  bonds 
under  the  constitutional  provision, 
this  providing  that  no  debt  exceed- 
ing a  certain  amount  should  be  in- 
curred by  any  municipality  without 
the  assent  of  two-thirds  of  the  quali- 
fied voters  thereof  at  an  election  for 
that  purpose. 

Illinois:  People  v.  Lippincott,  81 
111.  193,  construing  Illinois  Acts  of 
1872  and  1875  relating  to  municipal 
indebtedness  and  its  refunding. 
Barrett  v.  City  of  East  St.  Louis,  89 
111.  175.  The  prohibition  contained 
in  the  charter  of  East  St.  Louis  ap- 
plies only  to  debts  incurred  by  bor- 
rowing money  not  to  liabilities  con- 
tracted as  a  part  of  the  current  ex- 
penses of  the  city.  People  v.  Ham- 
ill,  134  111.  666.  Under  111.  Const. 
art.  9,  §  12,  limiting  the  power  of 
counties  to  contract  indebtedness  to 
five  per  cent  "of  the  last  assessment 
for  state  and  county  taxes,"  the  as- 
sessment determining  the  authority 


§  152 


TO  INCUR  INDEBTEDNESS. 


327 


used  in  constitutional  or  other  provisions  limiting  the  obligations 
legally  ineurrable  by  public  corporations.     What  charges  or  obli- 


is  that  fixed  by  the  state  board  of 
equalization,  not  that  made  by  the 
local  assessors. 

Hodges  v.  Crowley,  186  111.  305. 
The  Emergency  Act  of  April  24,  1899, 
authorizing  a  special  tax  of  one  half 
per  cent  per  annum  for  building  and 
repairing  roads  held  invalid  as  con- 
trary to  the  provisions  of  the  Const, 
art.  9,  §  12. 

Wabash  R.  Co.  v.  People,  187  111. 
289.  Under  Starr  &  C.  Ann.  St.  p. 
734,  providing  that  the  aggregate 
amount  of  taxes  levied  for  any  one 
year,  exclusive  of  the  amount  levied 
for  the  payment  of  bonded  indebted- 
ness or  interest  thereon,  should  not 
exceed  the  rate  of  two  per  cent  on 
the  aggregate  value  of  property  sub- 
ject to  taxation  as  equalized,  the 
court  held  that  that  portion  of  a 
city's  levy  which  was  for  "paving 
bonds  and  interest"  was  within  the 
exception,  and  as  the  amount  of  the 
levy  less  this  deduction  was  less 
than  two  per  cent,  it  was  valid. 

City  of  Chicago  v.  Fishburn,  189 
111.  367.  The  statutes  of  Illinois  re- 
quire assessors  to  determine  the 
fair  cash  value  of  property  and  set 
down  such  value  in  a  column  head- 
ed "Full  value,"  and  one-fifth  part 
thereof  in  another  column  headed 
"Assessed  value,"  all  taxes  to  be 
computed  on  the  assessed  value.  The 
legal  limit  of  indebtedness  to  be  in- 
curred under  Const,  art.  9,  §  12,  by 
a  city  should  be  based  upon  that 
column  headed  "Assessed  value," 
and  the  percentage  as  fixed  in  the 
constitutional  provision  is  to  be  esti- 
mated upon  this  and  not  upon  the 
value  given  in  the  column  headed 
"Full  value." 

City   of   Joliet   v.   Alexander,   194 


111.  457.  Bonds  to  be  issued  for  the 
construction  of  a  system  of  water- 
works, the  receipts  from  which  were 
to  be  kept  separate  and  devoted  to 
the  paying  of  the  interest  and  prin- 
cipal of  those  bonds,  it  was  held 
would  be  invalid  as  being  in  excess 
of  the  constitutional  limitation,  the 
existing  indebtedness  of  the  city 
other  than  the  proposed  issue  of 
bonds  having  already  reached  that 
limit. 

Strodtman  v.  Menard  County,  56 
111.  App.  120.  A  warrant  issued  in 
payment  of  ordinary  and  necessary 
expenses  in  anticipation  of  taxes 
partly  levied  and  to  be  collected  for 
such  purpose  was  held  in  this  case 
as  not  being  an  indebtedness  con- 
trary to  the  constitutional  provision. 

City  of  East  St.  Louis  v.  People, 
124  111.  655,  17  N.  E.  447;  True  v. 
Davis,  133  111.  522,  22  N.  E.  410. 
The  fact  that  the  aggregate  indebted- 
ness of  two  municipalities  seeking 
consolidation  exceeds  the  constitu- 
tional limit  does  not  prevent  such 
consolidation. 

Indiana:  Town  of  Winamac  T. 
Huddleston,  132  Ind.  217.  Under 
Const,  art.  13,  §  1,  a  town  can  not 
issue  bonds  for  the  purpose  of  re- 
building a  school  house,  where  such 
bonds  if  issued  would  create  an  in- 
debtedness in  excess  of  the  limit  con- 
tained in  such  provision. 

Monroe  County  Com'rs  v.  Harrell, 
14V  Ind.  500.  County  commission- 
ers have  the  power  to  issue  bonds 
for  the  purpose  of  constructing 
gravel  roads  to  be  paid  out  of  a 
special  fund  derived  from  assess- 
ments upon  property  benefited,  al- 
though such  bonds  added  to  the 
other  indebtedness  of  the  county 


328 


POWERS. 


152 


gations  can  be  included  properly  within  the  meaning  of  these 
words  may  be  material  and  important  in  determining  the  amount 


would  exceed  the  constitutional  lim- 
itation as  found  in  Const,  art.  13. 

Iowa:  Keene  Five-Cent  Sav.  Bank 
v.  Lyon  County,  90  Fed.  523;  Faulk- 
ner v.  Same,  Id.  The  Constitu- 
tion of  Iowa  limits  the  aggre- 
gate legal  indebtedness  of  any 
public  corporation  to  five  per  cent 
of  the  value  of  its  taxable  property 
as  ascertained  by  the  last  preceding 
state  and  county  tax  lists.  An  ex- 
emption based  upon  the  planting  of 
certain  acreage  of  forest  or  fruit 
trees  and  deducted  from  the  tax  lists 
is  not  to  be  taken  into  consideration 
in  determining  the  value  of  the  tax- 
able property  for  the  purpose  of  as- 
certaining the  constitutional  limit  of 
legal  indebtedness. 

Youngerman  v.  Murphy,  107  Iowa, 
€86,  76  N.  W.  648;  City  of  Cedar 
Rapids  v.  Bechtel,  110  Iowa,  196,  81 
N.  W.  468.  The  funding  of  munici- 
pal warrants  issued  for  ordinary  and 
current  expenses  and  which  at  the 
time  of  their  issuance  were  within 
the  limit  of  the  current  revenue  and 
such  taxes  as  might  be  legally  levied 
is  not  within  the  constitutional  pro- 
hibition found  in  art.  11,  §  3,  which 
limits  the  indebtedness  of  municipal 
corporations  to  an  amount  not  ex- 
ceeding five  per  cent  of  the  value 
of  the  taxable  property,  the  court 
holding  that  such  refunding  did  not 
create  or  increase  indebtedness. 
Citing  Grant  v.  City  of  Davenport, 
36  Iowa,  396. 

French  v.  City  of  Burlington,  42 
Iowa,  614;  Sioux  City  v.  Weare,  59 
Iowa,  95;  Tuttle  v.  Polk,  92  Iowa, 
433;  Edmundson  v.  Independent 
School  Dist.  of  Jackson,  98  Iowa, 
639;  Creston  Waterworks  Co.  v.  City 


of  Creston,  101  iowa,  687;  Thompson 
v.  Independent  School  Dist.  of  Al- 
lison, 102  Iowa,  94;  Windsor  v.  City 
of  Des  Moines,  110  Iowa,  175,  81  N. 
W.  476,  construing  the  constitutional 
provision.  Ft.  Dodge  Elec.  Light  & 
Power  Co.  v.  City  of  Ft.  Dodge,  115 
Iowa,  568.  A  municipal  contractor 
was  paid  in  part  by  special  assess- 
ment certificates.  The  liability  of 
the  municipality  for  damages  re- 
sulting from  an  erroneous  assess- 
ment of  property  for  the  payment  of 
these  certificates  is  not  within  the 
prohibition  of  a  constitutional  pro- 
vision limiting  the  amount  of  in- 
debtedness legally  incurrable  by  pub- 
lic corporations,  the  constitutional 
prohibition  not  applying  to  a  lia- 
bility arising  from  a  wrongful  act. 
Kansas:  Chicago,  K.  &  N.  R.  Co. 
v.  City  of  Manhattan,  45  Kan.  419. 
Sess.  Laws  Kan.  1886,  c.  67,  grant 
authority  to  municipal  corporations 
to  issue  bonds  to  railroads  to  aid 
in  securing  terminal  facilities,  even 
though  the  amount  of  such  bonds 
with  other  indebtedness  exceed  the 
limitation  as  fixed  in  Sess.  Laws 
Kan.  1885,  c.  99,  §  5.  Garfield  Tp. 
v.  Samuel  Dodsworth  Book  Co.,  9 
Kan.  App.  752,  58  Pac.  565.  The 
word  "year"  as  used  in  Comp.  Laws 
1879,  c.  25,  §  1,  means  a  calendar 
not  a  fiscal  year.  In  order  therefore 
to  determine  whether  there  had  been 
an  over-issue  of  county  warrants  in 
any  one  year,  the  calculation  should 
commence  with  Jan.  1st  of  that  year. 
Howard  v.  Hulbert,  63  Kan.  793. 
As  applied  to  the  county  of  Leaven- 
worth,  special  acts  of  1879  were  re- 
pealed by  implication  in  Gen.  St. 
1889,  c.  25. 


§  152 


TO  INCUR  INDEBTEDNESS. 


329 


of  indebtedness  legally  incurrable,  and  the  courts  from  time  to 
time  have  defined  these  words  and  included  or  excluded  from 


Kentucky:  Holzhauer  v.  City  of 
Newport,  94  Ky.  396.  Const.  §  166 
continuing  in  force  all  city  charters 
theretofore  granted  until  the  gen- 
eral assembly  should  provide  by  gen- 
eral law  for  the  government  of  towns 
and  cities,  permits  cities  to  incur 
indebtedness  in  the  manner  pre- 
scribed by  their  charters  granted  be- 
fore the  adoption  of  the  constitu- 
tion and  until  the  passage  of  such 
law.  Aydelott  v.  Town  of  South 
Louisville,  16  Ky.  L.  R.  166,  26  S. 
W.  717.  Const.  §§  157  and  158  lim- 
iting tax  rates  and  prohibiting  towns 
from  incurring  indebtedness  exceed- 
ing a  specified  amount  does  not  af- 
fect the  indebtedness  of  a  town  cre- 
ated by  a  vote  of  its  taxpayers  be- 
fore the  constitution  was  adopted. 
Followed  by  City  of  Ludlow  v.  Board 
of  Education  of  Ludlow,  16  Ky.  L. 
R.  805,  29  S.  W.  854;  Warren  v. 
City  of  Newport,  23  Ky.  L.  R.  1006, 
64  S.  W.  852;  Bank  of  Columbia  v. 
Taylor  County,  112  Ky.  243,  65  S. 
W.  451. 

O'Mahoney  v.  Bullock,  97  Ky.  774, 
31  S.  W.  878.  Act  of  May  3,  1890, 
is  subject  to  the  constitution,  §  157; 
it  attempting  to  authorize  the  Coun- 
ty of  Fayette  to  purchase  or  lease 
turnpikes  and  keep  them  in  repair, 
the  cost  of  such  purchase  or  lease 
being  met  by  taxes  and  the  issuing 
or  bonds.  Commissioners  of  Sink- 
ing Fund  of  Louisville  v.  Zimmer- 
man, 101  Ky.  432,  41  S.  W.  428,  con- 
struing Ky.  St.  §  3010,  authorizing 
a  city  to  retire  existing  bonds  by  a 
payment  from  the  sale  of  new  bonds 
or  by  direct  exchange. 

Louisiana:  Warner  v.  City  of  New 
Orleans,  87  Fed.  829.  The  city  of 


New  Orleans  by  a  constitutional 
amendment  was  prohibited  from  in- 
creasing its  debt  but  it  was  author- 
ized to  issue  certain  drainage  war- 
rants in  payment  of  a  contract  for 
the  construction  of  drainage  works 
then  nearing  completion.  The  court 
decided  that  the  purchase  of  drainage 
works  then  being  built  and  the  issu- 
ance of  warrants  in  payment  thereof 
were  within  this  exception.  The  de- 
cree was  modified,  however,  in  City 
01  New  Orleans  v.  Warner,  175  U. 
S.  120,  which  held  that  the  city  had 
the  authority  to  complete  the  drain- 
age works  itself  and  to  issue  war- 
rants paying  for  the  purchase  of  the 
contractor's  plant.  Washington  State 
Bank  v.  Baillio.  47  La.  Ann.  1471. 
La.  Const,  art.  209,  limiting  the  levy 
of  taxes  to  ten  mills  construed. 

Michigan:  Schneewind  v.  City  of 
Niles,  103  Mich.  301.  A  charter  pro- 
vision of  the  city  of  Niles  construed 
and  the  total  tax  levy  limited  to  two 
per  cent  of  the  property  valuation. 

Minnesota:  Town  of  Alden  v. 
Easton  (C.  C.  A.)  113  Fed.  60.  The 
act  of  1868  is  within  the  power  re- 
served by  the  legislature  in  Gen.  St. 
Minn.  1866,  c.  11,  §§  78,  79,  to  per- 
mit in  exceptional  cases  the  crea- 
tion of  debts  by  towns  in  excess  of 
the  limit  prescribed  by  the  general 
law. 

Rogers  v.  Le  Sueur  County,  57 
Minn.  439.  Under  Gen.  St.  1878,  c. 
11,  §§  49,  114,  a  board  of  county 
commissioners  have  no  power  to  fur- 
nish a  county  court  house  where 
the  amount  expended  will  exceed 
the  liability  which  a  county  is  au- 
thorized to  incur. 

Missouri:    Prickett  v.  City  of  Mar- 


330 


POWERS. 


§  152 


celine,  65  Fed.  469.  The  assessment 
contemplated  by  Const,  art.  10,  §  12, 
is  the  final  one  as  made  by  the  state 
board  of  equalization. 

Webb  City  &  C.  Waterworks  Co. 
v.  City  of  Carterville,  153  Mo.  128. 
Mo.  Const,  art.  10,  §  12,  prohibits 
the  city  from  becoming  indebted  to 
an  amount  exceeding  in  any  year  the 
income  of  that  year.  A  contract  be- 
tween a  waterworks  company  and 
the  city  the  court  held  valid  where 
the  stipulated  yearly  rental  together 
with  preferred  expenses  as  provid- 
ed in  Rev.  St.  §  4977  did  not  in  the 
aggregate  exceed  the  total  income  of 
the  city  for  the  year.  Lamar  Water 
&  Elec.  Light  Co.  v.  City  of  Lamar, 
128  Mo.  188.  The  word  "income"  as 
used  in  Const,  art.  10,  §  12,  provid- 
ing that  no  county,  city  or  town 
snail  become  indebted  in  any  one 
year  for  a  greater  amount  than  the 
"income  and  revenue  provided  for 
such  year"  includes  funds  derived 
from  all  sources,  not  from  taxation 
alone.  Reversed  in  Lamar  Water  & 
Elec.  Light  Co.  v.  City  of  Lamar,  128 
Mo.  188,  26  S.  W.  1025,  31  S.  W.  756. 

Saleno  v.  City  of  Neosho,  127  Mo. 
627,  30  S.  W.  190.  Under  Const,  art. 
10,  §  12,  fixing  the  limit  of  municipal 
indebtedness,  a  contract  by  the  city 
to  pay  a  fixed  price  annually  for  a 
specified  period  for  water  supply  is 
valid,  payment  being  contingent 
upon  the  supply  furnished.  State  v. 
Johnson,  162  Mo.  621,  63  S.  W.  390. 
A  county  warrant  valid  when  issued 
does  not  become  invalidated  by  the 
exhaustion  of  funds  at  the  time  it  is 
presented  for  payment.  It  is  pay- 
able from  the  surplus  of  the  revenue 
collected  in  subsequent  years  for 
payment  of  current  expenses. 

Montana:  Palmer  v.  City  of 
Helena,  19  Mont.  61.  The  sewerage 
system  contemplated  by  Const,  art. 


13,  §  6  and  Pol.  Code,  §  4800,  subd. 
64,  forbidding  municipal  corpora- 
tions to  incur  indebtedness  exceed- 
ing three  per  cent  unless  "necessary 
to  construct  a  sewerage  system  or 
procure  a  water  supply,"  is  one  not 
in  existence  at  the  time  of  the  adop- 
tion of  the  constitutional  provision. 

Nebraska:  Chilton  v.  Town  of 
Gratton,  82  Fed.  873.  The  Nebraska 
constitutional  limitation  affects  ex- 
penditures only  for  works  of  in- 
ternal improvement,  which  the 
court  further  holds  does  not  include 
a  county  court  house. 

Neio  Mexico:  Board  of  Education 
of  Eddy  v.  Bitting,  9  N.  M.  588.  The 
town  board  of  education  of  Eddy 
has  a  civil  existence  independent  of 
the  town  and  therefore  capable  of 
incurring  an  indebtedness  up  to  the 
4  per  cent  limit  as  authorized  by  Act 
Cong.  July  30,  1886,  although  both 
corporations  are  co-extensive  with 
the  same  territory. 

New  York:  People  v.  Denniston, 
23  N.  Y.  247.  In  construing  N.  Y. 
Const,  which  prohibits  loans  to  aid 
corporations,  it  was  held  that  bonds 
payable  at  a  certain  number  of  years 
after  twenty  was  not  an  extension  of 
time,  nor  a  forbearance;  nor  the 
making  of  a  new  loan  within  the 
meaning  of  the  constitutional  pro- 
visions. 

Adams  v.  East  River  Sav.  Inst., 
136  N.  Y.  52.  New  York  Const. 
(Amend.  1884)  art.  8,  §  11,  provides 
that  no  county  containing  a  city  of 
over  100,000  inhabitants,  or  any  such 
city,  shall  be  allowed  to  become  in- 
debted in  excess  of  10%  of  the  as- 
sessed valuation  of  the  real  estate 
ot  such  county  or  city.  The  county 
irrespective  of  the  indebtedness  of 
the  city  can  legally  incur  an  indebt- 
edness equal  to  ten  per  cent  of  the 
value  of  all  the  land  in  the  county 


§  152 


TO  INCUR  INDEBTEDNESS. 


331 


without  regard  to  the  fact  that  nine- 
ty per  cent  of  the  real  estate  of  the 
county  is  also  in  the  city  limits. 
Comstock  v.  City  of  Syracuse,  5  N. 
Y.  Supp.  874.  Sec.  20  of  the  Act  to 
"establish  and  maintain  a  water  de- 
partment in  and  for  the  city  of 
Syracuse"  (Laws  1889,  c.  291)  is  not 
in  violation  of  Const.  N.  Y.  art.  8, 
§  11.  People  v.  City  of  Syracuse, 
59  Hun,  258,  12  N.  Y.  Supp.  890,  con- 
struing N.  Y.  Laws  1885,  c.  26,  §  106. 

Gibson  v.  Knapp,  21  Misc.  499, 
47  N.  Y.  Supp.  446;  People  v.  Car- 
penter, 31  App.  Div.  603,  52  N.  Y. 
Supp.  781.  The  term  "funded  debt" 
as  used  in  Laws  1892,  c.  685,  §  5,  in- 
cludes all  indebtedness  evidenced  by 
bonds  payable  beyond  the  year  of 
their  issue  with  a  periodical  pay- 
ment of  interest.  Newburgh  Sav. 
Bank  v.  Town  of  Woodbury,  64  App. 
Div.  305,  72  N.  Y.  Supp.  222.  The 
issue  of  bonds  for  reimbursing 
drafted  men  within  the  town  of 
Woodbury  is  contrary  to  Const,  art. 
8,  §  10,  the  use  not  coming  within 
the  proper  definition  of  "town  pur- 
poses." 

North  Carolina:  Broadfoot  v.  City 
of  Fayetteville,  128  N.  C.  529,  39  S. 
E.  20.  Under  Const,  art.  7,  §  7, 
municipal  corporations  are  prohibit- 
ed from  contracting  debts  except  for 
their  necessary  expenses  unless  au- 
thorized by  a  vote  of  a  majority  of 
the  qualified  electors.  Under  this 
provision  where  bonds  were  original- 
ly issued  bearing  interest  at  the  rate 
of  six  per  cent  the  issue  of  refund- 
ing bonds  bearing  an  increased  rate 
of  interest  without  the  vote  of  the 
people  was  held  invalid. 

Ohio:  City  of  Cincinnati  v. 
Holmes,  56  Ohio  St.  104.  A  contract 
for  the  performance  of  improvement 
work  in  a  village  is  valid  although 
the  money  for  the  payment  of  the 


work  contemplated  was  not  in  the 
treasury  at  the  time.  Act  of  May  4, 
1891  (88  Ohio  Laws,  527),  as  affect- 
ed by  Rev.  St.  §  2702,  construed. 

Oklahoma:  Hall  Lithographing 
Co.  v.  Roger  Mills  County  Com'rs,  8 
Okl.  378.  The  limitation  imposed  by 
Act  of  Cong.  July  30,  1886,  §  4,  pro- 
viding that  no  political  or  municipal 
corporation  of  the  territories  of  the 
United  States  shall  ever  become  in- 
debted in  any  manner  to  an  amount 
exceeding  in  the  aggregate  four  per 
cent  on  the  taxable  property  is  not  a 
grant  of  the  power  to  incur  indebted- 
ness, but  a  limitation  upon  it.  Such 
power  existed  prior  to  the  passage 
of  such  legislation  without  limit. 
Following  Sauer  v.  McMurtry,  4  Okl. 
447;  D  County  Com'rs  v.  Gillett,  9 
Okl.  5f  3.  The  debt  limitation  as  im- 
posed by  Act  Cong.  July  30,  1886,  §  4, 
includes  expenses  incurred  by  opera- 
tion of  law  as  well  as  those  debts 
arising  from  express  contracts.  The 
salary  of  the  county  clerk  is  a  debt 
within  the  meaning  of  the  act. 

Martin  v.  Ter.,  5  Okl.  188;  follow- 
ed in  Spencer  v.  Gray,  5  Okl.  216. 
Warrants  issued  by  a  city  under 
Laws  1890,  c.  14,  in  settlement  of 
debts  incurred  by  provisional  gov- 
ernments are  void  where  the  city  at 
that  time  was  in  debt  beyond  the 
limit  of  four  per  cent  as  fixed  by  Act 
of  Congress. 

Pennsylvania:  Dupont  v.  City  of 
Pittsburgh,  69  Fed.  13,  construing 
Pa.  Act  June  9,  1891,  regulating  the 
manner  of  increasing  municipal  in- 
debtedness. Jutte  &  Foley  Co.  v. 
City  of  Altoona  (C.  C.  A.)  94  Fed. 
61.  Municipal  contractors  held 
bound  with  notice  of  the  limitations 
placed  by  ordinance  upon  the  pow- 
ers of  a  municipality.  Pike  County 
v.  Rowland,  94  Pa.  238;  Bruce  v.  City 
of  Pittsburg,  166  Pa.  152.  Act  of 


332 


POWERS. 


§  152 


April  20,  1874  (P.  L.  65),  permitting 
cities  to  increase  their  indebtedness 
two  per  cent  on  their  assessed  valua- 
tions constitutional.  The  valuation 
furnishing  the  basis  of  such  indebt- 
edness is  that  fixed  by  city  authori- 
ties, not  the  valuation  as  determined 
by  county  officials. 

Pepper  v.  City  of  Philadelphia,  181 
Pa.  566;  Appeal  of  Luburg  (Pa.)  17 
Atl.  245.  Under  Pa.  Const,  art.  9,  § 
8,  a  new  debt  or  an  increase  of  the 
indebtedness  of  the  school  district 
to  an  amount  exceeding  two  per 
centum  of  the  assessed  valuation 
cannot  be  incurred  except  with  the 
assent  of  the  electors  at  a  public 
election  in  the  manner  required  by 
law.  An  order  of  a  court  of  com- 
mon pleas  based  upon  a  petition 
signed  by  a  majority  of  the  electors 
of  the  school  district  is  not  sufficient 
to  authorize  the  issue  of  the  bonds 
contemplated  for  the  erection  of  a 
school  house  where  the  cost  was 
more  than  two  per  cent.  Keller  v. 
City  of  Scranton,  202  Pa.  586.  A 
two  per  cent  increase  in  municipal 
indebtedness  can  be  made  without 
assent  of  the  electors,  constitutional 
provision  art.  9,  §  8,  evidently  apply- 
ing only  to  the  increase  of  an  in- 
debtedness to  an  amount  exceeding 
two  per  cent. 

Rhode  Island:  Rogan  v.  Sher- 
man, 20  R.  I.  388,  39  Atl.  568.  Con- 
struing general  laws  relating  to  the 
deduction  of  certain  indebtedness 
for  the  purpose  of  ascertaining  the 
limit  of  new  indebtedness  legally  in- 
currable. 

South  Carolina:  Atlantic  Trust 
Co.  v.  Town  of  Darlington,  63  Fed. 
76.  The  property  of  a  manufactur- 
ing company  not  being  within  the 
exemption  allowed  by  Const.  1868, 
art.  9,  §  8,  is  to  be  considered  in  de- 
termining the  assessed  value  of  the 


property  within  the  town  for  the 
purpose  of  ascertaining  the  limit  of 
its  legal  indebtedness,  S.  C.  Const, 
art.  9,  §  17,  prohibiting  the  issue  of 
bonds  by  a  town  in  excess  of  8  per 
cent  of  the  taxable  property.  A 
charter  provision  permitting  the  is- 
sue of  bonds  to  aid  in  the  construc- 
tion of  a  railroad  held  limited  by 
the  constitution.  Germania  Sav. 
Bank  v.  Town  of  Darlington,  50  S. 
C.  337.  The  assessment  referred  to 
in  Const,  art.  9,  §  17,  refers  to  that 
next  preceding  the  issue  of  bonds, 
not  to  subsequent  ones.  See,  also, 
as  holding  the  same,  State  v.  Corn- 
well,  40  S.  C.  26,  18  S.  E.  184. 
Duncan  v.  City  of  Charleston,  60  S. 

C.  532;  Bray  v.  City  Council  of  Flor- 
ence, 62  S.  C.  57.     A  constitutional 
amendment    prohibiting    the    incur- 
ring of  indebtedness  to  an   amount 
exceeding  8  per  cent  of  the  assessed 
value  of  taxable  property  was  held 
in  this   case  amended  by  the  joint 
resolution  of  Feb.  19,  1900.     Todd  v. 
City  of  Laurens,  48  S.  C.  395,  26  S. 
E.     682.     Const.     (1895)     provisions 
art.  8,  §  7,  and  art.  10,  §  5,  relating 
to  the  indebtedness  legally  incurra- 
ble  by  municipal  corporations,  con- 
strued and  applied. 

South  Dakota:  Stanton  v.  State, 
5  S.  D.  515,  59  N.  W.  738.  A  gov- 
ernor of  the  state  not  authorized 
"without  express  authority  of  law" 
to  make  a  contract  for  the  subsist- 
ence of  special  military  forces,  the 
Const,  art.  11,  §  9,  declaring  that  no 
indebtedness  shall  be  incurred  by  the 
state  except  in  pursuance  of  an  ap- 
propriation for  the  specific  purpose 
first  made.  In  re  State  Bonds,  7  S. 

D.  42,  63  N.  W.  223.     Const,  art.  13, 
§  2,  limiting  the  state's  power  to  con- 
tract debts  held  not  controlling  act 
of  March  12,  1895  (c.  32),  directing 
the  issue  of  state  bonds. 


152 


TO  INCUR  INDEBTEDNESS. 


333 


Wilson  v.  Board  of  Education  of 
Huron,  12  S.  D.  535,  81  N.  W.  952. 
The  last  completed  assessment  is  the 
basis  for  the  incurring  of  indebted- 
ness by  a  board  of  education  under 
Laws  1887,  c.  47. 

Texas:  Millsaps  v.  City  of  Terrell 
(C.  C.  A.)  60  Fed.  193:  Tex.  Const, 
art.  11,  §§  5,  7,  provide  that  no  city 
shall  incur  indebtedness  for  any  pur- 
pose or  in  any  manner  unless  pro- 
vision is  made  at  the  same  time  for 
the  levying  and  collecting  of  a  tax 
sufficient  to  pay  the  interest,  and  a 
sinking  fund  of  at  least  2  per  cent 
per  annum.  The  power  of  the  city 
to  create  debts  for  the  erection  of 
public  buildings  and  peimanent  im- 
provements is  limited  to  a  sum  upon 
which  the  interest  together  with  2 
per  cent  for  the  sinking  fund  would 
not  exceed  the  revenue  derived  from 
a  tax  of  25c  on  $100,  as  provided  in 
art.  8,  §  9  of  the  Const. 

City  of' Palestine  v.  Royall,  16  Tex. 
Civ.  App.  36,  40  S.  W.  621,  constru- 
ing Rev.  St.  1895,  art.  486,  which 
limits  the  authority  of  municipalities 
to  issue  bonds  for  permanent  im- 
provements to  such  an  amount  as 
can  be  paid  including  annual  inter- 
est, by  a  tax  of  one-fourth  of  one 
per  cent  on  all  taxable  property. 
Cass  County  v.  Wilbarger  County, 
25  Tex.  Civ.  App.  52,  60  S.  W.  988, 
construing  Acts  of  1889,  p.  89,  re- 
lating to  the  issuing  of  funded  bonds 
by  a  county  with  reference  to  the 
Const,  art.  8,  §  9. 

Utah:  Fenton  v.  Blair,  11  Utah, 
78,  39  Pac.  485.  Under  Comp.  Laws, 
p.  293,  §  173;  p.  306,  §  195;  and  p. 
296,  §  182,  par.  5,  the  amount  of 
indebtedness  legally  incurrable  by 
county  authorities  at  any  time  can- 
not exceed  the  revenues  of  the  cur- 
rent fiscal  year  beyond  the  amount 
of  the  county  revenue  and  income 


for  the  two  years  immediately  pre- 
ceding. Fritsch  v.  Salt  Lake  County 
Com'rs,  15  Utah,  83,  47  Pac.  1026.  A 
county  is  estopped  to  deny  a  county 
warrant  beyond  the  debt  limit  as 
fixed  by  the  Const,  art.  14,  §  3.  The 
court  also  held  that  taxes  assessed 
by  a  county  for  any  one  year  and 
collected  after  its  expiration  should 
be  applied  to  the  payment  of  the 
indebtedness  of  the  preceding  year 
if  such  exists. 

Washington:  Wash.  Const,  art. 
8,  §  6,  provides  that  no  county  shall 
become  indebted  in  any  manner  to 
an  amount  exceeding  one  and  one- 
half  per  centum  of  the  taxable  prop- 
erty in  such  county  without  the  as- 
sent of  three-fifths  of  the  voters.  In 
Metcalfe  v.  City  of  Seattle,  1  Wash. 
St.  297,  and  State  v.  Snodgrass,  1 
Wash.  St.  305,  it  was  held  that  the 
proportion  of  three-fifths  applied  to 
those  actuaUy  voting  at  the  election, 
not  to  all  entitled  to  vote.  Rehmke 
v.  Goodwin,  2  Wash.  St.  676.  The 
provision  of  the  Const,  just  cited 
does  cot  authorize  the  incurring  of 
indebtedness  up  to  one  and  one-half 
per  cent  in  addition  to  the  indebted- 
ness existing  at  the  time  of  the 
adoption  of  such  constitutional  pro- 
vision. 

Hunt  v.  Fawcett,  8  Wash.  396; 
Rauch  v.  Chapman,  16  Wash.  568. 
The  term  indebtedness  as  used  in 
the  constitutional  provision  does  not 
include  the  fees  of  witnesses  in 
criminal  cases  or  of  sheriffs  for  serv- 
ing criminal  process  or  the  expense 
of  a  general  state  election. 

State  Sav.  Bank  v.  Davis,  22  Wash. 
406;  Smith  v.  City  of  Seattle,  25 
Wash.  300,  construing  Const,  art.  8, 
§  6,  authorizing  cities  to  become  in- 
debted to  an  amount  not  exceeding 
five  per  cent  of  the  taxable  property 
to  supply  water,  light  and  sewage 


334 


POWEKS. 


152 


such  definitions   certain   obligations.276     There  is  no  well-estab- 
lished rule  of  construction  which  the   courts  have   adopted   in 


facilities.  Indebtedness  for  the  pur- 
pose of  laying  water  mains  might  be 
incurred  in  excess  of  this  where  it 
was  to  be  paid  by  taxes  levied  upon 
property  specially  benefited. 

Wisconsin:  Fowler  v.  City  of  Su- 
perior, 85  Wis.  411,  54  N.  W.  800. 
Under  a  constitutional  provision,  art. 
11,  §  3,  limiting  the  indebtedness 
legally  incurrable  by  a  municipality 
to  5  per  cent  of  the  value  of  taxable 
property,  improvement  bonds  of  a 
city  payable  out  of  the  proceeds  of 
special  assessments  chargeable  on 
the  property  benefited,  held  void  as 
being  in  excess  of  the  constitutional 
limit.  Such  bonds  were  declared  by 
the  court  an  obligation  of  the  city 
and  therefore  an  indebtedness. 

State  v.  Common  Council  of  Tom- 
ahawk, 96  Wis.  73,  71  N.  W.  86,  con- 
struing Tomahawk  city  charter 
(Laws  1891,  c.  58,  subc.  9,  §  3), 
which  provides  for  the  incurring  of 
indebtedness  and  holding  that  such 
provisions  were  controlled  by  Const. 
art.  11,  §  3.  This  case  also  holds  in 
common  with  many  others  where 
similar  phraseology  is  used  that  the 
last  assessment  previous  to  the  in- 
curring of  the  indebtedness  is  that 
which  is  to  be  used  in  determining 
the  value  of  the  property  upon  which 
to  base  an  estimate  of  its  indebted- 
ness. Herman  v.  City  of  Oconto, 
110  Wis.  660,  86  N.  W.  681.  The 
construction  of  a  sewage  system  held 
not  a  current  expense. 

"Wyoming:  In  Miller  v.  School 
Dist.  No.  3,  5  Wyo.  217,  39  Pac.  879, 
the  court  holds  that  the  adoption  of 
constitutional  restrictions  upon  the 
amount  of  bonded  indebtedness  legal- 
ly incurrable  by  a  public  corpora- 


tion applies  to  the  indebtedness  in 
existence  at  Such  time,  and  that 
those  corporations  cannot,  at  the 
time  of  the  adoption  of  su^h  con- 
stitutional provision,  and  thereafter, 
incur  indebtedness  to  the  amount  as 
therein  limited  without  reference  to 
the  indebtedness  existing  at  the  time 
of  such  adoption. 

276  in  City  of  Conyers  v.  Kirk,  78 
Ga.  480,  3  S.  E.  442,  it  was  held  that 
a  debt  arising  from  a  breach  of  con- 
tract to  pay  cash  was  not  within  the 
constitutional  limitation.  Law  v. 
People,  87  111.  385.  Certificates  of 
indebtedness  for  temporary  loans 
bearing  interest  intended  to  be  paid 
out  of  the  revenue  levied  for  the 
current  year,  held  an  indebtedness 
under  111.  Const,  art.  9,  §  12,  declar- 
ing that  no  "municipal  corporation 
shall  be  allowed  to  become  indebted, 
in  any  manner,  or  for  any  purpose, 
to  an  amount,  including  existing  in- 
debtedness, in  the  aggregate  exceed- 
ing five  per  centum  on  the  value  of 
the  taxable  property  therein,  to  be 
ascertained  by  the  last  assessment 
of  state  and  county  taxes  previous  to 
the  incurring  of  such  indebtedness," 
the  court  defining  the  word  "indebt- 
edness" used  in  the  Constitution  as 
including  debts  incurred  to  be  paid 
in  the  future  as  well  as  those  pay- 
able at  once,  and  that  where  such 
temporary  loans  exceeded  with  other 
indebtedness  the  constitutional  limit 
they  were  void,  otherwise  they  might 
be  regarded  as  a  permissible  mode 
of  anticipating  taxes. 

Town  of  Kankakee  v.  McGrew,  178 
111.  74.  The  term  does  not  apply  to 
current  indebtedness  or  an  obliga- 
tion of  the  town  not  bearing  interest 


§  152 


TO  INCUR  INDEBTEDNESS. 


335 


defining  the  words.  The  desire  on  their  part  not  to  limit  the 
legal  indebtedness  of  a  municipality  or  to  compel  the  payment 
of  a  moral  obligation  rather  than  any  fixed  rule  of  construction 
has  at  times  influenced  their  decision.  It  would  not  seem  ordi- 
narily that  there  could  be  any  dispute  as  to  the  meaning  of  such 
phrases.  Iowa  Const,  art.  11,  §  3,  reads  as  follows:  "No  county 
or  other  political  or  municipal  corporation  shall  be  allowed  to 
become  indebted  in  any  manner  or  for  any  purpose  to  an  amount 
in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property  within  such  county  or  corporation,  to  be  ascer- 
tained by  the  last  state  and  county  tax  lists  previous  to  the  incur- 
ring of  such  indebtedness."  In  an  able  decision  by  Judge 
Lochren  of  the  Federal  bench277  it  was  well  said:  "The  language 


and  not  deferred  for  payment  to 
some  future  date.  City  of  Richmond 
v.  McGirr,  78  Ind.  192.  The  word 
"loan"  as  used  in  Ind.  Rev.  St.  1881, 
§  3159,  does  not  include  the  issue  of 
negotiable  bonds  payable  in  the  fu- 
ture and  bearing  interest. 

Allen  v.  City  of  Davenport,  107 
Iowa,  90,  77  N.  W.  532.  A  city  may 
become  indebted  through  the  mis- 
appropriation of  funds  raised  for  a 
certain  purpose,  and  in  this  manner 
may  increase  its  indebtedness  be- 
yond the  constitutional  limit.  The 
court  say:  "If  the  city  obligates 
itself  to  pay,  no  matter  what  its 
revenues  from  special  assessments, 
a  debt  is  created,  which  falls  within 
the  constitutional  inhibition.  If, 
however,  it  simply  appropriates  a 
part  of  its  revenues,  and  pledges 
them  to  the  payment  of  the  obliga- 
tion or  if  it  simply  undertakes  as 
trustee  or  agent  to  collect  these  as- 
sessments and  apply  them  upon  the 
work  without  liability  on  its  part  for 
anything  further,  then  no  debt  is 
created.  Or,  if  it  appears  that  it 
has  on  hand  at  the  time  the  debt 
is  created  a  sufficient  fund  to  meet 
the  indebtedness  or  if  the  debt  is 


payable  in  installments  and  it  has 
enough  in  its  hands  at  the  time  the 
installments  mature  to  pay  them, 
then  there  is  no  debt  in  a  constitu- 
tional sense." 

City  of  Council  Bluffs  v.  Stewart, 
51  Iowa,  385;  Quill  v.  City  of  In- 
dianapolis, 124  Ind.  292;  City  of 
Springfield  v.  Edwards,  84  111.  626; 
City  of  Valparaiso  v.  Gardner,  97 
Ind.  1;  City  of  Laporte  v.  Game- 
well  Fire  Alarm  &  Tel.  Co.,  146  Ind. 
466,  45  N.  E.  588;  Baird  v.  Todd,  27 
Neb.  782,  43  N.  W.  1143;  and  Bon- 
nell  v.  Nuckolls  County,  28  Neb.  90, 
43  N.  W.  1145;  hold  that  indebted- 
ness incurred  for  the  purpose  of 
making  internal  improvements  au- 
thorized by  the  adoption  of  Const. 
Neb.  art.  9,  §  5,  limiting  the  amount 
of  taxes  levied,  is  not  affected  by 
this  constitutional  provision. 

State  v.  Fayette  County  Com'rs,  37 
Ohio  St.  526;  Fowler  v.  City  of  Su- 
perior, 85  Wis.  411. 

Meaning  of  "indebtedness,"  see 
notes  44  Am.  St.  Rep.  230-232,  also 
L.  R.  A.  vols.  23,  p.  402,  and  33,  p. 
474. 

277  City  of  Ottumwa  v.  City  Water 
Supply  Co.  (C.  C.  A.)  119  Fed.  315. 


336  POWERS.  §  152 

of  this  section  is  plain  and  simple,  and  its  meaning  is  unmistak- 
able. The  incurring  of  indebtedness  beyond  the  amount  limited  is 
absolutely  and  unqualifiedly  prohibited;  no  matter  what  the  pre- 
text or  circumstances,  or  the  form  which  the  indebtedness  is  made 
to  assume.  It  curbs  equally  the  power  of  the  legislature,  the  offi- 
cials and  the  people  themselves,  and  was  designed  to  protect  the 
taxpayers  from  the  folly  and  improvidence  of  either,  or  of  all 
combined. ' ' 

Ingenious  attempts  have  been  made  to  incur  debts  or  indebted- 
ness, which  by  a  "jugglery  of  phrases"  it  is  claimed  are  not 
"debts"  or  "indebtedness"  within  the  meaning  of  a  constitu- 
tional limitation. 

Many  public  corporations  have  engaged  in  the  construction 
of  works  of  local  or  internal  improvement,  the  cost  of  which  is 
to  be  paid  from  the  proceeds  of  special  taxes  or  assessments  upon 
property  benefited.  The  objection  has  been  made  where  bonds 
are  issued  as  obligations  of  a  public  corporation  that  they  are 
"debts"  or  obligations  or  constitute  an  "indebtedness"  within  the 
meaning  of  constitutional  limitations  and  therefore  invalid.  The 
courts  have  quite  generally  held  that  it  is  largely  the  form  of  the 
obligation  which  determines  a  general  liability  in  this  case  and 
the  consequent  result  of  holding  it  an  "indebtedness"  or  a 
"debt."  If  the  bonds  or  obligations  in  their  form  and  recitals 
are  not  a  general  liability  of  the  corporation  but  payable  prin- 
cipal and  interest  from  the  proceeds  of  the  special  taxes  or  assess- 
ments levied  upon  benefited  property,  and  if  the  holders  are 
limited  in  their  recovery  to  such  sums  as  can  be  collected  from 
these  special  or  local  assessments,  then  the  bond  or  other  evidence 
of  indebtedness  is  not  to  be  regarded  as  a  general  debt  or  charge 
against  the  municipality  and  should  not  be  included  Avithin  its 
indebtedness  in  determining  whether  the  constitutional  limitation 
has  been  reached.278  If,  however,  the  form  of  such  bonds  or  evi- 

278  People    v.    May,    9    Colo.    404;  holds  contrary  to  the  rule  stated  in 

Jacksonville  R.  Co.  v.  City  of  Jack-  the    text;     Davis    v.    City    of    Des 

sonville,  114  111.  562;  Commissioners  Moines,  71  Iowa,  500;  Tuttle  v.  Polk, 

of  Highways  v.  Jackson,  165  111.  17;  92   Iowa,  433;    City  of  Atchinson  v. 

affirming  61   111.  App.  381;    Quill  v.  Price,  45  Kan.  296.  25  Pac.  605;  City 

City  of  Indianapolis,   124  Ind.  292;  of  Clinton  v.  Walliker,  98  Iowa,  655, 

Switzerland      County      Com'rs,      v.  68  N.  W.  431.     The  court  here  say: 

Reeves,  148   Ind.  467,  46  N.  E.  995,  "There  ought  to  he  no  question  that 


§  152 


TO  INCUR  INDEBTEDNESS. 


337 


dence  of  indebtedness  is  of  a  general  character  or  nature  and  does 
not  limit  the  holder  in  his  right  of  recovery  to  such  special  assess- 
ments or  taxes,  then  they  will  be  considered  as  obligations  or 


the  district  improvement  bonds  are 
payable  from  the  special  assessment 
made  against  the  owners  of  abutting 
property,  and  in  no  other  manner. 
We  will  not  set  out  a  copy  of  these 
bonds.  They  plainly  provide  for 
payment  to  be  made  from  the  special 
assessments  and  they  are  not  gen- 
eral bonds  against  the  city.  This 
court  held  years  ago  that  where  a 
contractor  for  a  service  accepted 
certificates  of  assessments  made 
upon  adjacent  property  in  full  satis- 
faction of  his  work,  such  certificates 
did  not  create  a  debt  against  the  city 
within  the  meaning  of  the  article  of 
the  constitution,  limiting  the  lawful 
indebtedness  of  a  city  to  five  per 
cent  of  the  value  of  its  taxable 
property." 

Davis  v.  City  of  Des  Moines,  71 
Iowa,  500;  Kelly  v.  City  of  Minne- 
apolis, 63  Minn.  125;  Kansas  City 
v.  Ward,  134  Mo.  172,  35  S.  W.  600. 
The  court  held  here  that  park  fund 
certificates  payable  from  assessments 
on  private  property  for  park  pur- 
poses and  providing  that  the  city 
should  only  be  liable  thereupon  for 
the  sums  collected  on  account  of 
such  assessments  were  not  an  in- 
debtedness within  the  meaning  of  a 
constitutional  limitation.  They 
were  in  legal  effect  an  assignment 
only  of  the  special  assessments.  At- 
kinson v.  City  of  Great  Falls,  16 
Mont.  372;  Hopper  v.  Inhabitants  of 
Union  Tp.,  54  N.  J.  Law,  243;  Little 
v.  City  of  Portland,  26  Or.  235;  Ad- 
dyston  Pipe  &  Steel  Co.  v.  City  of 
Corry,  197  Pa.  41.  The  court  say: 
"It  is  not,  however,  always  possible 
to  adapt  present  action  to  future  re- 


sults with  absolute  precision,  and  if 
means  are  adopted  which  in  good 
faith,  according  to  reasonable  ex- 
pectation, will  produce  a  sufficient 
fund,  the  contract  entered  into  on 
the  faith  of  them  should  not  be  held 
unlawful  on  account  of  an  uninten- 
tional miscalculation,  or  an  acci- 
dental and  unexpected  failure  to  pro- 
duce the  full  result.  Thus  if  a  city 
at  the  time  of  making  the  contract 
levies  a  special  tax  in  good  faith 
supposed  to  be  adequate  to  meet  it, 
but  in  consequence  of  fire  or  flood 
or  decline  in  values,  the  result  is  an 
insufficient  fund,  it  cannot  be  held 
that  the  contract  good  at  its  incep- 
tion would  thereby  be  made  bad. 
The  constitutional  restriction  was 
not  intended  to  make  municipalities 
dishonest,  not  to  prevent  those  who 
contract  with  them  from  collecting 
their  just  claims,  but  to  check  rash 
expenditure  on  credit,  and  to  pre- 
vent loading  the  future  with  the  re- 
sults of  present  inconsiderate  ex- 
travagance." 

Austin  v.  City  of  Seattle,  2  Wash. 
St.  667;  Baker  v.  City  of  Seattle,  2 
Wash.  St.  576;  Winston  v.  City  of 
Spokane,  12  Wash.  524;  Faulkner  v. 
City  of  Seattle,  19  Wash.  320,  53  Pac. 
365;  Burnham  v.  City  of  Milwaukee, 
98  Wis.  128,  73  N.  W.  1018.  See, 
also,  Grant  v.  City  of  Davenport,  36 
Iowa,  396,  where  the  court  say: 
"Where  a  contract  made  by  a  munic- 
ipal corporation  pertains  to  its  or- 
dinary expenses,  and  is,  together 
with  other  like  expenses  within  the 
limits  of  its  current  revenues  and 
such  special  taxes  as  it  may  legally 
and  in  good  faith  intends  to  levy 


Abb.  Corp.— 22. 


338 


POWERS. 


152 


indebtedness  of  the  city  to  be  included  within  its  total  or  aggre- 
gate debt.279 


therefor,  such  contract  does  not  con- 
stitute 'the  incurring  of  indebted- 
ness' within  the  meaning  of  the  con- 
stitutional provision  limiting  the 
power  of  municipal  corporations  to 
contract  debts." 

Pattison  v.  Yuba  County  Sup'rs, 
13  Cal.  175;  Leaven  worth  County 
Com'rs  v.  Miller,  7  Kan.  499;  Cass 
v.  Dillon,  2  Ohio  St.  607;  City  of 
Erie's  Appeal,  91  Pa.  398.  "If  the 
contracts  and  engagements  of  mu- 
nicipal corporations  do  not  overreach 
their  current  revenues,  no  objections 
can  lawfully  be  made  to  them  how- 
ever great  the  indebtedness  of  such 
municipalities  may  be,  for  in  such 
case,  their  engagements  do  not  ex- 
tend beyond  their  present  means  of 
payment  and  so  no  debt  is  created." 

Gould  v.  City  of  Paris,  68  Tex. 
511;  List  v.  City  of  Wheeling,  7  W. 
Va,  501.  In  City  of  Springfield  v. 
Edwards,  84  111.  626,  the  question  of 
municipal  indebtedness  beyond  the 
constitutional  limit  is  fully  consid- 
ered. The  court  say  after  speaking 
of  the  rule  as  given  by  majority  of 
the  authorities:  "In  this  view  we 
are  only  prepared  to  yield  our  assent 
to  the  rule  recognized  by  the  author- 
ities referred  to  with  these  qualifica- 
tions: First,  the  tax  appropriated 
must,  at  the  time,  be  actually  levied, 
second  by  the  legal  effect  of  the  con- 
tract between  the  corporation  and 
the  individual  made  at  the  time  of 
the  appropriation,  the  appropriation 
and  issuing  and  accepting  of  a  war- 
rant or  order  on  the  treasury  for  its 
payment  must  operate  to  prevent 
any  liability  to  accrue  on  the  con- 
tract against  the  corporation.  The 
principle,  as  we  understand  it,  is, 


there  is  in  such  case  no  debt  because 
one  thing  is  simply  given  and  ac- 
cepted in  exchange  for  another. 
When  the  appropriation  is  made  and 
the  warrant  or  order  on  the  treasury 
for  its  payment  is  issued  and  accept- 
ed, the  transaction  is  closed  on  the 
part  of  the  corporation — leaving  no 
future  obligation,  either  absolute  or 
contingent  upon  it  whereby  its  debt 
may  be  increased." 

279Kimball  v.  Grant  County 
Com'rs,  21  Fed.  145.  County  bonds 
issued  under  Ind.  Laws  for  the  con- 
struction of  gravel  roads,  though 
specially  provided  for  by  assessments 
on  lands  benefited,  the  court  held  in 
this  case  were  within  the  prohibi- 
tion of  the  Ind.  Const.,  and  say, 
"The  point  established,  as  I  think  it 
must  be  held  to  be,  that  the  bonds 
are  an  obligation  or  debt  of  the 
county,  the  constitutional  restriction 
must  apply,  as  it  seems  to  me,  not- 
withstanding the  special  fund  or, 
rather,  resource,  provided  in  the 
statutory  assessment  for  their  pay- 
ment, and  notwithstanding  the  fact 
which  may  be  conceded  that  in  most 
cases  the  assessment  will  ultimately 
prove  collectible  in  sums  sufficient 
to  pay  the  debt  and  interest.  The 
assessment  was  doubtless  designed 
mainly  to  secure  an  indemnity  to 
the  county  and  incidentally  to  en- 
hance the  value  of  the  bonds  in  the 
market;  but  the  special  provision 
for  payment  cannot  reasonably  be 
said  to  remove  the  force  of  the  au- 
thority given  to  issue  the  bonds  of 
the  county — words  which  ex  vi 
termini,  import  an  obligation  of  the 
county  and  such  an  obligation  is  a 
debt,  within  the  clear  and  compre- 


§   152  TO  INCUR  INDEBTEDNESS.  339 

Another  plan  has  been  to  issue  bonds  secured  by  a  mortgage 
upon  certain  property,  the  interest  and  the  principal  of  the  mort- 
gage payable  from  the  net  income  of  such  property.  This  device 
has  often  been  used  in  the  construction  of  plants  for  the  purpose 
of  supplying  the  municipality  and  the  inhabitants  with  water  and 
light.280 

In  deciding  the  Iowa  case,  opinion  by  Judge  Lochren,  referred 
to  above,  where  the  indebtedness  sought  to  be  incurred  involved  a 
plan  similar  to  that  suggested,  the  court  said,  and  its  reasoning 
is  so  sound  that  it  is  quoted  here  in  full:  "Appellant's  conten- 
tion amounts  to  this,  that  notwithstanding  the  constitutional  limi- 
tation referred  to,  and  that  the  city,  being  already  indebted  be- 
yond that  limit,  has  no  power,  even  with  legislative  sanction,  to  in- 
cur any  new  indebtedness  to  the  amount  of  a  single  dollar,  it  may 
nevertheless  borrow  money  to  the  extent  of  $400,000,  issuing  its 
negotiable  bonds  therefor  with  interest,  contracting  to  pay  the 
same  at  specified  dates,  and  that  this  will  not  create  any  indebt- 
edness, if  it  shall  at  the  same  time  levy  taxes  to  be  collected 
annually  from  the  taxable  property  of  the  city  for  a  long  term  of 
years,  or  indefinitely  till  the  sum  borrowed  is  paid  therefrom, 
and  provide  that  the  bonds  shall  only  be  paid  from  the  taxes  so 
specially  levied.  If  this  may  be  done  to  build  waterworks,  the 
city  may  go  on  and  in  the  same  way  borrow  and  issue  its  bonds 
for  an  equal  amount  to  build  public  buildings,  and  for  another 
equal  amount  to  construct  a  system  of  sewers,  and  for  another 
equal  amount  to  construct  modern  school  houses,  and  an  unlim- 
ited amount  as  bonus  to  some  railroad,  taking  care  in  each  case 
to  levy  once  for  all  a  sufficient  annual  tax  to  meet  the  maturing 
bonds;  and  though  the  property  of  the  taxpayers  may  be  thus 

hensive  language  of  the  constitution,  U.  S.  152,  where  the  court  holds  the 

already   quoted."    Allen   v.    City   of  liability  of  the  city  absolute  without 

Davenport,  107  Iowa,  90,  77  N.  W.  reference   to   the   fact  that   it  was 

532;  Windsor  v.  City  of  Des  Moines,  authorized    to    levy    special    assess- 

110  Iowa,  176,  81  N.  W.  476;  Fowler  ments   for  the  payment  of  its   im- 

v.    City   of    Superior,    85    Wis.    411.  provement  bonds,  and  intended,  as  a 

Special     improvement    bonds    from  fact,  that  the  bonds  should  be  paid 

their  language  held  a  general  obli-  out   of    the   assessments    when   col- 

gation,  therefore  indebtedness.     See  lected.     Austin  v.  City  of  Seattle,  2 

also    cases   cited    in   last   preceding  Wash.  St.  667.     Wash.  Const,  art.  8, 

note.  §  6,  contains  a  special  provision  for 

zso  United  States  v.  Ft.  Scott,  99  the  Incurring  of  indebtedness  by  a 


340  POWERS.  §  ^ 

practically  confiscated,  by  being  loaded  down  with  taxes  beyond 
any  income  which  the  property  can  produce  and  for  periods 
beyond  any  expectation  of  life  which  the  taxpayers  can  indulge 
in,  still  those  taxpayers  while  groaning  under  such  special  levies, 
fixed  upon  them  and  extending  hopelessly  into  the  future,  will 
have  the  happiness  and  satisfaction  of  knowing  that  they  live  in 
a  city  which  has  no  municipal  indebtedness  large  enough  to  cause 
uneasiness. 

"The  fact  that  these  proposed  bonds  are  to  bear  interest  at  4^ 
per  cent,  cannot  be  overlooked.  Why  should  the  city  pay  inter- 
est,— that  constant,  distinguishing,  most  irksome  and  disagree- 
able feature  of  indebtedness, — upon  money  which  it  does  not 
owe;  money  which  belonged  to  it  before  it  was  received;  being 
only  its  own  fixed  revenues,  gotten  hold  of  for  present  use,  a  little 
in  advance,  by  'anticipation,'  and  in  no  wise  by  incurring  in- 
debtedness?"281 

Another  plan  often  suggested  and  used  for  the  increase  of  cor- 
porate indebtedness  beyond  the  limit  allowed  by  law  is  the  mak- 
ing of  contracts  calling  for  the  performance  of  certain  acts  dur- 
ing a  series  of  years,  the  service  performed  or  rendered  the  city 
under  the  contract  to  be  paid  for  at  an  agreed  rate  from  time  to 
time  as  such  services  or  contract  obligations  are  performed.  The 
courts  have  quite  uniformly  held  that  such  contract  obligations 
should  not  be  considered  as  "indebtedness"  or  as  a  "debt" 
within  the  meaning  of  a  constitutional  or  other  express  limita- 
tion, for  the  reason  that  the  payment  of  the  obligation  on  the 
part  of  the  public  corporation  being  contingent  upon  the  per- 
formance of  the  act  or  the  rendering  of  the  service  by  the  other 
party  to  the  contract,  so  long  as  this  contingency  existed  it  could 
not  be  considered  a  fixed  definite  corporate  obligation  within  the 
meaning  of  those  words.282  The  modern  construction  by  courts 

municipality  for  the  purpose  of  sup-  payment  of  interest  on  some  of  the 

plying  it  with  water,  artificial  light  city's    debt    not    a    "borrowing    of 

and  sewers.  money"      within      the      prohibition 

281  City  of  Ottumwa  v.  City  Water  against  the  city's  borrowing  money 
Supply  Co.   (C.  C.  A.)  119  Fed.  315.  except  upon  certain  terms,  but  see 

282  See  cases   cited  under   §§   147,  the  dissenting  opinion  of  Mr.  Justice 
and  255;  Gelpcke  v.  City  of  Dubuque,  Miller.     Daviess    County    v.    Dickin- 
68  U.  S.  (1  Wall.)  175.    A  contract  son,  117  U.  S.  657;  Boon  Tp.  v.  Cum- 
to  pay  a  sum  of  money  with  interest  mins,  142  U.  S.  366;  Hedges  v.  Dixon 
to  a  person  who  had  assumed   the  County,    150    U.    S.    182;    Smilie    v. 


§  152 


TO  INCUR  INDEBTEDNESS. 


341 


of  the  words  "debt"  or  "indebtedness"  uninfluenced  by  ulterior 
motives,  includes  all  liabilities  of  whatever  nature  and  contracted 
for  whatever  purpose  and  in  whatever  manner,  that  are  or  may 
become  an  obligation  owing  and  to  be  met  by  the  public  corpo- 
ration from  the  proceeds  of  public  taxes  levied  and  collected 
upon  taxable  property  within  its  limits.283  Such  construction, 


Fresno  County,  112  Cal.  311.  The 
rule  applied  to  the  construction  of  a 
county  building  where  the  payments 
were  to  be  made  in  installments  each 
year  as  they  progressed.  The  court 
held  that  the  debt  created  was  not 
the  aggregate  amount  of  such  in- 
stallments but  only  those  that  arose 
from  year  to  year  as  the  work  was 
constructed,  the  only  limitation  be- 
ing that  the  installment  due  in  any 
one  year  together  with  other  in- 
debtedness should  not  exceed  the 
constitutional  limit. 

Windsor  v.  City  of  Des  Moines, 
110  Iowa,  175,  81  N.  W.  476,  holds 
contrary  to  the  rule  stated  in  the 
text.  Prince  v.  City  of  Quincy,  128 
111.  443;  Davis  v.  City  of  Des  Moines, 
71  Iowa,  500;  Anderson  v.  Orient 
Fire  Ins.  Co.,  88  Iowa,  579;  Tuttle 
v.  Polk,  92  Iowa,  433;  City  of  Clin- 
ton v.  Walliker,  98  Iowa,  655;  Allen 
v.  City  of  Davenport,  107  Iowa,  90, 
77  N.  W.  532;  Beard  v.  City  of  Hop- 
kinsville,  95  Ky.  239;  Read  v.  At- 
lantic City,  49  N.  J.  Law,  558;  State 
v.  Fayette  County  Com'rs,  37  Ohio 
St.  526;  Spilman  v.  City  of  Parkers- 
burg,  35  W.  Va.  605,  14  S.  E.  279; 
and  Phillips  v.  Reed,  107  Iowa,  331, 
7C  N.  W.  850,  77  N.  W.  1031.  But 
see  dissenting  opinion  of  Judge  Rob- 
inson. 

Reynolds  v.  City  of  Waterville,  92 
Me.  292,  also  holds  contrary  to  the 
rule  in  the  text.  The  incorporation 
of  a  city  hall  commission  for  the  ex- 
press purpose  of  constructing  a  city 
hall  and  incurring  indebtedness  for 


that  purpose  where  such  indebted- 
ness would  be  in  excess  of  the  legal 
limit  of  the  town  was  held  in  this 
case  to  be  a  scheme  for  the  purpose 
of  avoiding  the  constitutional  limita- 
tion. Peck-Williamson  H.  &  V.  Co. 
v.  Board  of  Education,  6  Okl.  279; 
Morris  v.  Taylor,  31  Or.  62;  State  v. 
Common  Council  of  Tomahawk,  96 
Wis.  73;  Stedman  v.  City  of  Berlin, 
97  Wis.  505;  Burnham  v.  City  of 
Milwaukee,  98  Wis.  128;  Crogster  v. 
Bayfield  County,  99  Wis.  1;  Daven- 
port v.  Kleinschmidt,  6  Mont.  502. 
In  Read  v.  Atlantic  City,  49  N.  J. 
Law,  558,  9  Atl.  759,  a  contract  re- 
quiring the  payment  of  specified  an- 
nual amounts  for  water  supply  for  an 
indefinite  period  held  within  the 
meaning  of  the  law  limiting  indebt- 
edness. 

283  Hitchcock  v.  City  of  Galveston, 
96  U.  S.  341 ;  Coulson  v.  City  of  Port- 
land, Deady,  481,  Fed.  Gas.  No.  3,275; 
Spring  Valley  Waterworks  v.  Bart- 
lett,  8  Sawy.  555,  16  Fed.  615;  Denny 
v.  City  of  Spokane  (C.  C.  A.)  79  Fed. 
719.  A  warrant  issued  for  the  pay- 
ment of  a  debt  in  advance  of  a  de- 
layed assessment  is  not  an  indebt- 
edness within  the  meaning  of  the 
charter  of  the  city  of  Spokane. 

Manly  Bldg.  Co.  v.  Newton,  114 
Ga.  245,  40  S.  E.  274.  A  county  con- 
tracting for  the  building  of  a  court 
house  to  be  paid  for  out  of  available 
funds  in  the  treasury  or  taxes  for 
the  current  year,  does  not  create  a 
"debt"  within  the  meaning  of  the 
Constitution. 


342 


POWERS. 


§  152 


however,  may  exclude  warrants  issued  in  payment  of  compulsory 
obligations,  fees  of  witnesses,  jurors,  constables  or  sheriffs,  in 


Murphy  v.  Town  of  East  Portland, 
42  Fed.  308.     An  obligation  for  the 
payment  of  money  created  by  a  mu- 
nicipality    without     providing     the 
means  for  its  payment  creates  an  in- 
debtedness  within   the  meaning   of 
Const.    Or.,    art    11,    §    5.    City    of 
Council  Bluffs  v.  Stewart,  51  Iowa, 
385;  Windsor  v.  City  of  Des  Moines, 
110   Iowa,   175.    The   court   in   this 
case  denned  an  indebtedness  as  in- 
cluding implied  as  well  as  express 
promises  creating  obligations.     The 
decision  is  evidently  not  based  upon 
any    sincere    desire    to    limit    the 
amount  of  indebtedness  legally  in- 
currable  by  a  municipality  but  upon 
the  concealed  wish  to  defeat  a  legiti- 
mate contract  between  a  municipal- 
ity and  a  private  corporation.     City 
of  Springfield  v.  Edwards,  84  111.  626. 
A  debt  payable  in  the  future  based 
upon  a  contingency  as  well  as  a  debt 
payable  absolutely  and  presently  is 
within   the  constitutional   provision 
concerning  the  incurring  of  debts  by 
public  corporations;  the  purpose  for 
which  the  debt  was  contracted  being 
immaterial.    The     court     say:     "A 
debt  payable   in   the   future,   is   ob- 
viously, no  less  a  debt  than  if  pay- 
able presently   and  a  debt   payable 
upon    a    contingency,    as    upon    the 
happening  of   some   event,   such  as 
the  rendering  of  service  or  the  de- 
livery of  property,  etc.,  is  some  kind 
of  a  debt  and,  therefore,  within  the 
prohibition.     If  a  contract  or  under- 
taking contemplates,  in  any  contin- 
gency, a  liability  to  pay,  when  the 
contingency  occurs   the  liability   is 
absolute — the    debt    exists — and    it 
differs   from   a  present,  unqualified 
promise  to  pay  only  in  the  manner 
by  which  the  indebtedness  was  in- 


curred and  since  the  purpose  of  the 
debt  is  expressly  excluded  from  con- 
sideration, it  can  make  no  difference 
whether  the  debt  be  for  necessary 
current  expenses  or  for  something 
else."  East  St.  Louis  Gas  Light  & 
Coke  Co.  v.  City  of  East  St.  Louis, 
45  111.  App.  591;  Culbertson  v.  City 
of  Fulton,  127  111.  30;  Louisville  &  N. 
R.  Co.  v.  Com.,  106  Ky.  633;  State 
v.  Marion  County  Ct.,  128  Mo.  427. 
Funding  railway  aid  bonds  held  a 
"township  indebtedness." 

State  v.  Graham,  23  La.  Ann.  402. 
In  this  case  the  court  defines  a 
"debt"  as  including  an  "appropria- 
tion whereby  the  liabilities  of  the 
state  are  increased." 

Christie  v.  City  of  Duluth,  82 
Minn.  202.  The  phrase  "certificates 
of  indebtedness"  as  used  in  connec- 
tion with  the  creation  of  permanent 
improvement  revolving  fund  held 
equivalent  to  term  "bonds"  as  used 
in  the  same  act,  Gen.  Laws  1899,  c. 
351,  §  10. 

Barnard  v.  Knox  County,  105  Mo. 
382.  A  county  warrant  issued  in 
payment  of  official  county  books  re- 
quired by  the  statutes  is  void  if  at 
the  time  of  its  issuance  the  revenue 
for  that  year  is  already  exhausted; 
it  is  a  debt  and  obligation  within  the 
meaning  of  the  constitutional  pro- 
hibition. Overruling  Potter  v. 
Douglas  County,  87  Mo.  240;  Adams 
v.  East  River  Sav.  Inst.,  47  N.  Y.  St. 
Rep.  175,  20  N.  Y.  Supp.  12.  The 
water  debt  of  the  city  of  Brooklyn 
is  to  be  included  in  the  aggregate 
debt  of  the  municipality  in  deter- 
mining whether  the  limit  of  indebt- 
edness has  been  reached. 

Salem  Water  Co.  v.  City  of  Salem, 
5  Or.  29;  Municipal  Pecur.  Co.  Y. 


§  152 


TO  INCUR  INDEBTEDNESS. 


343 


Baker  County,  33  Or.  338,  54  Pac. 
174.  The  liability  on  part  of  the 
county  for  indexing  and  platting 
public  records  is  an  indebtedness 
coming  within  the  constitutional 
debt  limit.  The  court  also  holds 
that  a  "necessary  county  expense" 
should  not  be  included  within  that 
term  as  it  is  an  involuntary  obliga- 
tion. Brooke  v.  City  of  Philadel- 
phia, 162  Pa.  123.  In  determining 
the  aggregate  debts  for  the  purpose 
of  ascertaining  whether  the  consti- 
tutional limitation  has  been  exceed- 
ed, city  loans  purchased  through 
sinking  fund  moneys  held  by  the 
city  but  not  canceled  should  be  in- 
cluded. 

In  re  State  Bonds,  7  S.  D.  42,  63 
N.  W.  223.  Losses  sustained  by  the 
school  fund  by  defalcation  or  mis- 
management constitute  under  Const, 
art.  8,  §§  2,  13,  a  permanent  funded 
debt  against  the  state  which  is  not 
included  in  the  "indebtedness"  to 
which  the  state  is  limited  by  art.  13, 
§  2.  City  of  Galveston  v.  Loonie, 
54  Tex.  517;  McLeary  v.  Dawson,  87 
Tex.  524;  City  of  Waxahachie  v. 
Brown,  67  Tex.  519;  City  of  Terrell 
T.  Dissaint  (Tex.  Civ.  App.)  9  S. 
W.  593;  Conklin  v.  City  of  El  Paso 
(Tex.  Civ.  App.)  44  S.  W.  879; 
Fritsch  v.  Salt  Lake  County  Com'rs, 
15  Utah,  83,  47  Pac.  1026.  The  limit- 
ation includes  debts  created  by  op- 
eration of  law,  salaries  of  officers, 
debts  arising  from  express  contracts 
and  liabilities  based  upon  the  negli- 
gence of  county  officials. 

McEwan  v.  City  of  Spokane,  16 
Wash.  212,  47  Pac.  433;  Seymour  v. 
City  of  Spokane,  6  Wash.  362;  Wins- 
ton v.  City  of  Spokane,  12  Wash. 
524;  Stanley  v.  McGeorge,  17  Wash. 
8,  48  Pac.  736;  Neale  v.  Wood  Coun- 
ty Ct.,  43  W.  Va.  90,  27  S.  E.  370; 
State  v.  Common  Council  of  Toma- 


hawk, 96  Wis.  73,  71  N.  W.  86.  Wa- 
ter bonds  held  a  part  of  the  out- 
standing indebtedness  within  the 
constitutional  provision.  Crogster 
v.  Bayfield  County,  99  Wis.  1.  A 
contract  between  a  county  and  a 
railroad  company  by  which  the  for- 
mer agrees  to  issue  bonds  in  ex- 
change for  stock  of  the  railroad  com- 
pany constitutes  an  indebtedness 
within  the  meaning  of  Const,  art. 
11,  §  3.  Rice  v.  City  of  Milwaukee, 
100  Wis.  516,  76  N.  W.  341.  A  mu- 
nicipality, the  court  holds  in  this 
case,  cannot  pay  a  debt  by  using 
funds  raised  for  another  purpose. 

State  v.  Laramie  County  Com'rs, 
8  Wyo.  104,  55  Pac.  451.  Uncollected 
taxes  due  the  state  should  not  be 
considered  a  debt  within  the  Const, 
art.  16,  §  4,  limiting  the  power  of 
counties  to  create  debts.  German- 
American  Sav.  Bank  v.  City  of  Spo- 
kane, 17  Wash.  315.  A  general  lia- 
bility defined  in  this  case  as  a  debt 
within  the  meaning  of  the  constitu- 
tion. See,  also,  Earles  v.  Wells,  94 
Wis.  285,  where  the  court  said  in 
dealing  with  a  kindred  question: 
"So  long  as  the  current  expenses  of 
the  municipality  are  kept  within  the 
limits  of  the  moneys  and  assets  ac- 
tually in  the  treasury  and  the  cur- 
rent revenues  collected  or  in  pro- 
cess of  immediate  collection,  the  mu- 
nicipality may  be  fairly  regarded  as 
doing  business  on  a  cash  basis,  and 
not  upon  credit,  even  though  there 
may  be  for  a  short  time  some  un- 
paid liabilities.  *  *  *  But  the 
moment  an  indebtedness  is  involun- 
tarily created,  'in  any  manner  or  for 
any  purpose'  with  no  money  nor  as- 
sets in  the  treasury,  nor  current  rev- 
enues collected  or  in  process  of  col- 
lection for  the  payment  of  the  same, 
thai  moment  such  debt  must  be  con- 
sidered in  determining  whether  such 


344 


POWERS. 


§   153 


criminal  cases,284  or  the  expense  attending  the  holding  of  a  ses- 
sion of  the  legislature,  the  bill  of  rights  providing  for  a  speedy 
trial  by  jury  for  those  accused  of  crime,  and  a  legislative  session 
considered  necessary  to  the  maintenance  of  organized  govern- 
ment, a  reason  sometimes  of  doubtful  applicability.  Such  con- 
struction also  excludes  bonds  issued  under  authority  of  law  for 
the  purpose  of  funding  or  refunding  outstanding  corporate  in- 
debtedness, the  courts  holding  without  exception  that  the  issue 
of  such  bonds  does  not  increase  or  add  to  the  debts  or  obligations 
of  the  corporation  but  merely  changes  their  form.288 

§  153.    Indebtedness  must  be  a  legal  demand. 

Constitutional  or  other  limitations  usually  restrict  the  debt 
legally  incurrable  by  public  corporations  to  a  certain  definite 
amount  as  already  suggested,  or  to  a  certain  percentage  of  the 
taxable  property  within  their  corporate  jurisdiction.  What  obli- 


municipality  has  or  has  not  exceed- 
ed the  constitutional  limit  of 'indebt- 
edness." 

SB*  Rollins  v.  Lake  County,  34  Fed. 
S45.  "Warrants  issued  by  a  county 
in  payment  of  compulsory  obliga- 
tions, viz.,  fees  of  witnesses,  jurors, 
constables,  sheriffs  and  the  like,  are 
not  within  the  prohibition  and  it  is 
no  defense  to  an  action  upon  such 
warrants  that  at  the  time  they  were 
issued,  the  general  limit  of  county 
indebtedness  fixed  by  the  constitution 
had  been  reached,  overruling  People 
T.  May,  9  Colo.  404."  Floyd  County 
Com'rs  v.  Day,  19  Ind.  450;  Hamil- 
ton County  Com'rs  v.  Cottingham,  56 
Ind.  559;  Miller  v.  Dearborn  County 
Com'rs,  66  Ind.  162.  The  rule  in  the 
text  applied  to  temporary  loans  con- 
tracted for  the  purpose  of  meeting 
current  expenses.  Norton  v.  City  of 
East  St.  Louis,  36  111.  App.  171.  The 
salary  of  a  health  officer  included  as 
a  part  of  indebtedness.  State  v. 
Board  of  Liquidation  of  City  Debt, 
51  La,  Ann.  1849,  26  So.  679.  The 


unpaid  salaries  of  teachers  in  the 
public  schools  for  a  series  of  years 
are  not  debts  of  the  city  and  do  not 
therefore  fall  under  the  provisions 
of  the  funding  law  of  1890  and  the 
constitutional  amendment  of  1892. 
Ketchum  v.  City  of  Buffalo,  14  N.  Y. 
356;  Rauch  v.  Chapman,  16  Wash. 
568.  In  Grand  Island  &  N.  W.  R.  Co. 
v.  Baker,  6  Wyo.  369,  45  Pac.  494, 
the  court  held  that  the  limitation  of 
indebtedness  as  imposed  by  Const, 
art.  16,  §§  3,  4,  applied  to  all  debts 
whether  compulsory  obligations  im- 
posed by  law  such  as  salaries,  boun- 
ties, etc.,  or  voluntary  obligations 
entered  into  for  other  purposes. 

285  Farson,  Leach  &  Co.  v.  Com- 
missioners of  Sinking  Fund  of  Louis- 
ville, 97  Ky.  119;  Hotchkiss  v.  Ma- 
rion, 12  Mont.  218,  29  Pac.  821. 
The  issue  of  bonds  to  redeem  out- 
standing indebtedness  not  the  in- 
curring of  a  debt  within  the  mean- 
ing of  the  constitutional  provision 
and  therefore  a  submission  to  the 
electors  cot  necessary.  Palmer  v. 


§  J53 


TO  INCUR  INDEBTEDNESS. 


345 


gations  or  liabilities  should  be  considered  in  determining  whether 
the  legal  limit  has  been  reached?  The  decisions  generally  hold 
that  they  must  be  a  legal  claim  or  demand  against  the  corpora- 
tion and  in  such  condition  that  they  can  be  enforced  through  the 
use  of  available  and  proper  remedies  given  by  the  laws  of  the 
state  for  the  enforcement  of  such  demands.  Under  this  rule  an 
unliquidated  claim  or  demand  or  one  unapproved  by  the  proper 
officials  would  not  be  considered  "a  debt"  or  "indebtedness,"  and 
in  computing  the  total  debt  of  the  corporation  should  be  ex- 
cluded.288 


City  of  Helena,  19  Mont.  61.  See 
also  the  many  authorities  cited,  § 
173,  post,  and  48  L.  R.  A.  474. 

286  Ashuelot  Nat.  Bank  v.  Lyon 
County,  81  Fed.  127.  Bonds  in  ex- 
cess of  the  constitutional  limit  and 
therefore  void  are  not  to  be  includ- 
ed as  a  part  of  the  municipal  indebt- 
edness in  determining  the  total  out- 
standing indebtedness  with  reference 
to  an  issue  of  bonds.  The  court  say: 
"The  constitutional  limitation  which 
is  relied  on  as  a  defense  in  this  case 
is  intended  to  prevent  the  overbur- 
dening of  property  within  the  mu- 
nicipalities of  the  state  by  debts 
created  by  the  corporate  authorities, 
and  the  prohibition  of  the  constitu- 
tion extends  to  all  forms  of  indebt- 
edness and  the  true  inquiry  in  each 
case  is  whether  at  the  given  date 
there  exists  indebtedness  in  any 
form  up  to  the  limit  for  which  the 
municipality  can  be  held  liable  at 
law  or  in  equity.  Whatever  the 
form  of  the  indebtedness  may  be  if 
it  can  be  enforced  by  a  court  of  law 
or  equity,  it  certainly  comes  within 
the  constitutional  provision;  but  on 
the  other  hand,  claims  which  cannot 
be  thus  enforced  and  which  are  not 
binding  on  the  municipality,  do  not 
come  within  the  meaning  of  the  term 
'indebtedness'  as  used  in  the  consti- 
tution of  the  state." 


Keene  Five-Cent  Sav.  Bank  v. 
Lyon  County,  90  Fed.  523.  In  Lyon 
County  v.  Keene  Five-Cent  Sav. 
Bank  (C.  C.  A.)  100  Fed.  337,  affirm- 
ing Keene  Five-Cent  Sav.  Bank  v. 
Lyon  County,  90  Fed.  523,  the  court 
held  that  illegal  non-enforceable  war- 
rants outstanding  against  the  county 
should  not  be  considered  in  deter- 
mining the  existing  indebtedness  of 
the  county  when  the  bonds  in  ques- 
tion were  issued.  German  Ins.  Co. 
v.  City  of  Manning,  95  Fed.  597.  The 
question  in  this  case  was  the  validity 
of  certain  bonds  as  affecting  the  to- 
tal valid  indebtedness  of  the  corpora- 
tion, having  in  view  the  issue  of 
more  bonds.  The  court  held  that 
the  test  of  the  validity  of  corporate 
bonds  for  this  purpose  was  not 
whether  they  were  recognized  as 
valid  by  the  officers  of  the  corpora- 
tion but  whether  they  were  legally 
enforceable. 

City  of  Chicago  v.  McDonald,  176 
111.  404.  Bonds  issued  for  the  con- 
struction of  waterworks,  similar  to 
other  bonds  except  in  the  designa- 
tion as  water  loan  bonds,  should  be 
included  in  the  indebtedness  as  well 
as  a  judgment  in  tort  against  the 
municipality.  Revenue  warrants 
however  should  not  be  included. 
Thompson  v.  Independent  School 
Dist.,  102  Iowa,  94,  70  N.  W.  1093. 


346 


POWERS. 


§  154 


§  154.    Debts  of  territorially  co-existing-  public  corporations. 

The  same  territory  may  often  be  organized  into  and  included 
within  two  or  more  separate  and  distinct  civil  bodies  or  public 
corporations.  A  limitation  may  be  placed  upon  each  of  these 
organizations  of  the  amount  of  indebtedness  it  can  legally  incur. 
In  determining  the  limit  of  such  indebtedness  the  total  indebted- 
ness of  each  of  the  civil  bodies  or  corporations  is  to  be  considered 
and  not  the  aggregate  of  both  or  all  the  corporate  organizations 
which  may  be  wholly  or  partially  co-extensive  territorially.287 


Valid  orders  subsequently  reduced 
to  judgments  not  considered  an  in- 
debtedness within  the  meaning  of 
the  constitutional  limitation.  The 
court  say:  "What  the  indebtedness 
of  the  district  was  when  the  orig- 
inal orders  were  issued  is  not  shown; 
and  we  must  presume  it  did  not  ex- 
ceed the  authorized  limit  and  that 
the  orders  were  valid.  If  that  was 
the  case,  the  orders  issued  in  lieu 
of  them  did  not  create  an  indebted- 
ness within  the  meaning  of  the  con- 
stitutional inhibition  and  none  was 
created  by  the  rendition  of  the  judg- 
ment." 

287  Board  of  Education  of  Huron  v. 
National  Life  Ins.  Co.  (C.  C.  A.)  94 
Fed.  324.  Here  the  claim  was  made 
that  statutory  provisions  relating  to 
bonded  indebtedness  of  municipal 
corporations  applied  to  boards  of 
education.  The  court  said:  "We 
are  of  opinion  that  the  act  under 
which  the  plaintiff  in  error  was  or- 
ganized is  complete  in  itself;  that 
its  powers  and  duties  as  well  as  the 
limitations  upon  its  power  to  issue 
bonds  are  contained  in  the  act  under 
which  it  became  a  body  corporate. 
*  *  *  In  view  of  this  fact,  it 
seems  clear  that  sections  1149  and 
1150  were  only  intended  to  apply  to 
those  municipal  corporations  such  as 
cities  or  villages  which  were  gov- 


erned by  common  councils  or  boards 
of  trustees." 

Wilcoxon  v.  City  of  Bluffton,  153 
Ind.  267,  54  N.  E.  110.  Bonds  nego- 
tiated by  a  city  to  erect  school  build- 
ings not  a  debt  of  the  civic  organi- 
zation for  school  purposes  including 
the  same  territory.  But  see  Orvis 
v.  City  of  Des  Moines  Park  Com'rs, 
8*  Iowa,  674,  56  N.  W.  294,  where 
the  court  held  that  even  though  a 
board  of  park  commissioners  was 
organized  under  the  special  author- 
ity of  an  act  of  the  legislature,  yet 
its  bonds  were  to  be  considered  a 
debt  of  the  city  within  the  meaning 
of  Const,  art.  11,  §  3,  limiting  the 
amount  of  municipal  indebtedness 
to  5%  of  the  valuation  of  the  tax- 
able property.  This  it  seems  should 
be  the  true  rule  rather  than  the 
one  as  stated  in  the  text,  which  is 
based  upon  the  weight  of  authority. 
Sound  reasoning  is  in  favor  of  the 
exception  not  the  rule.  If  territory  is 
permitted  under  legislative  author- 
ity to  be  organized  into  separate  cor- 
porations for  the  purpose  of  carrying 
on  each  one  of  its  distinct  functions 
of  government,  and  each  of  these 
organizations  is  permitted  to  incur 
the  full  amount  of  indebtedness  as 
permitted  by  the  constitution,  the 
amount  of  indebtedness  which  can 
be  placed  upon  the  inhabitants  and 


§  155 


TO  INCUR  INDEBTEDNESS. 


347 


The  courts  in  such  cases  usually  consider  each  of  the  civic  cor- 
porations as  bodies  corporate  separate,  independent  and  distinct 
from  each  other. 


§  155.    Assessment  or  valuation  to  be  considered. 

The  percentage  limit  of  indebtedness  as  suggested  in  section  153 
is  usually  based  upon  the  assessed  valuation  of  the  taxable  proper- 
ty within  the  taxing  limits  of  the  corporation.  The  controlling 
assessment  upon  which  the  computation  must  be  made  is  usually 
held  to  be  the  one  last  before  the  proposed  incurring  of  indebt- 
edness and  that  which  has  been  acted  upon  by  a  final  board  of 
equalization  in  the  state.288 


the  taxable  property  of  this  terri- 
tory or  district  is  unlimited.  A  con- 
stitutional limitation  prohibits  the 
incurring  of  debts  by  a  municipality 
or  public  corporation,  in  excess  of  a 
certain  per  cent.  Under  the  rule  a 
park  board  of  that  municipality,  or- 
ganized separately,  embracing  the 
same  territory,  may  incur  indebted- 
ness to  five  per  cent,  a  police  board, 
coextensive  with  the  city  may  do 
likewise,  and  so  on  ad  infinitum. 

Board  of  Education  of  Eddy  v. 
Bitting,  9  N.  M.  588;  Adams  v.  East 
River  Sav.  Inst,  65  Hun,  145,  20  N. 
Y.  Supp.  12;  Todd  v.  City  of  Lau- 
rens,  48  S.  C.  395,  26  S.  E.  682.  The 
rule  applied  as  to  reorganized  school 
district  co-extensive  with  the  city, 
also  the  bonded  debt  of  a  county  in- 
cluding within  its  limits  an  organiz- 
ed municipality.  Wilson  v.  Board  of 
Education  of  Huron,  12  S.  D.  535; 
State  v.  Common  Council  of  Toma- 
hawk, 96  Wis.  73,  71  N.  W.  86. 

288  Rathbone  v.  Kiowa  County 
Com'rs  (C.  C.  A.)  83  Fed.  125;  Board 
of  Education  of  Huron  v.  National 
Life  Ins.  Co.  (C.  C.  A.)  94  Fed.  324; 
State  v.  Babcock,  24  Neb.  640;  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Village  of 
Wilber,  63  Neb.  624,  88  N.  W.  660. 


The  word  "assessment"  as  used  in 
the  law  relating  to  the  incurring  of 
debts  by  public  corporations  is  de- 
fined as  being  not  only  the  act  of  the 
local  assessor  but  the  completed  act 
of  all  the  agencies  employed  in  de- 
termining the  amount  of  property 
available  for  taxation.  The  court 
say:  "Besides,  in  our  opinion,  the 
term  'assessment'  has  a  wider  signifi- 
cation than  simply  the  listing  and 
valuation  of  taxable  property  by  the 
assessor.  *  *  *  Under  our  sys- 
tem of  taxation,  the  listing  and  esti- 
mate are  not  complete  until  after 
the  county  board  has  completed  its 
work  as  a  board  of  equalization. 
While  sitting  as  such  board,  they  are 
authorized  to  assess  all  the  lands 
that  have  been  listed  by  the  county 
clerk  and  not  assessed  by  the  assess- 
or and  otherwise  to  change  the  as- 
sessment. A  large  part  of  all  rail- 
road and  telegraph  property  is  as- 
sessed, not  by  the  local  assessor,  but 
by  the  state  board  of  equalization 
and  certified  to  the  county  clerks  in 
which  the  same  is  taxable  and  thus 
becomes  a  part  of  the  basis  upon 
which  the  levy  of  taxes  is  made. 
The  basis  for  the  issuance  of  bonds 
is  'the  assessed  valuation  of  the  tax- 


348 


POWERS. 


§  156 


§  156.    Indebtedness  further  defined;  warrants  issued  in  antici- 
pation of  taxes  levied. 

A  public  corporation  may  incur  a  liability  for  the  payment  or 
which  there  are  no  funds  in  the  treasury  although  the  taxes  when 
collected  will  be  sufficient  to  pay  such  demand.  Or  again  munic- 
ipal warrants  may  be  drawn  anticipating  the  payment  of  taxes 
not  then  delinquent  but  levied  and  due.  The  courts  hold  that 
such  warrants  or  other  evidence  of  indebtedness  should  not  be 
considered  a  debt  within  the  meaning  of  constitutional  provisions, 
for,  as  said  in  one  case,  such  "warrants"  are  drawn  against 
existing  values.289 


able  property  within  said  village' 
and  is  to  be  determined  by  'the  last 
preceding  assessment.'  To  our 
minds  it  is  clear  that  the  assess- 
ment referred  to  is  the  completed 
act  of  all  the  agencies  employed  in 
determining  the  amount  and  value 
or  property  available  for  taxation. 
If  we  are  correct  in  this  view,  it 
follows  that  the  validity  of  the 
bonds  depends  not  upon  the  levy  of 
1894  but  upon  that  of  1893,  which 
is  conceded  would  warrant  the  issu- 
ance of  the  full  amount  of  the  bonds 
in  question." 

Fuller  v.  Heath,  89  111.  296; 
Kingsberry  v.  Pettis  County,  48  Mo. 
207;  Hopper  v.  Inhabitants  of  Un- 
ion Tp.,  54  N.  J.  Law,  243;  Wilson 
v.  Board  of  Education  of  Huron,  12 
S.  D.  535;  State  v.  Tolly,  37  S.  C. 
551,  16  S.  E.  195.  A  second  assess- 
ment subsequent  to  the  making  of 
the  annual  assessment  made  by  the 
city  officials  as  a  proposed  basis  of 
issuing  bonds  held  unauthorized  and 
void.  State  v.  Common  Council  of 
Tomahawk,  96  Wis.  73. 

289  Hockaday  v.  Chaffee  County 
Com'rs,  1  Colo.  362,  29  Pac.  287; 
Strodtman  v.  Menard  County,  56  111. 
App.  120;  Law  v.  People,  87  111.  385; 
Fuller  v.  Heath,  89  111.  296;  City  of 


Springfield  v.  Edwards,  84  111.  626. 
"The  literal  meaning  of  a  prohibi- 
tion against  'becoming  indebted'  in 
any  sense,  in  any  manner  or  for 
any  purpose,  would  involve  a  prohi- 
bition against  a  city  becoming  fur- 
ther indebted  even  by  the  accumula- 
tion of  interest  on  the  bonded  debt 
existing  at  the  adoption  of  the  con- 
stitution. It  will  not  be  contended 
that  such  prohibition  was  intended; 
and  why  not?  Simply  because  sucn 
a  proposition  is  absurd."  City  of 
Alpena  v.  Kelley,  97  Mich.  550. 

In  re  State  Warrants,  6  S.  D.  518, 
62  N.  W.  101.  "At  first  thought  it 
may  seem  difficult  to  maintain  that 
the  issuing  of  an  obligation  to  pay, 
is  not  the  incurring  of  an  indebted- 
ness. Critically  considered,  it  may 
constitute  the  incurring  of  an  in- 
debtedness, *  *  *  tut  it  is  not 
an  indebtedness  repugnant  to  the 
constitution  because  its  payment  is 
legally  provided  for  by  funds  con- 
structively in  the  treasury.  If  the 
drawing  of  a  warrant  upon  the 
state  treasury  is  the  incurring  of  an 
indebtedness  by  the  state,  then  the 
drawing  of  such  warrant  would  vio- 
late the  constitution  even  if  there 
was  money  in  the  state  treasury  to 
pay  it,  if  the  constitutional  limit  of 


§  157 


TO  INCUR  INDEBTEDNESS. 


349 


§  157.    Expenses   incurred   in   excess    of   current   revenue   or 
income. 

Constitutional  or  other  provisions  limiting  the  debt  or  indebt- 
edness of  public  corporations  may  include  with  their  phrases, 
that  the  corporation  shall  not  incur  in  any  one  year  debts  in 
excess  of  the  revenues  for  that  year  or  a  certain  percentage  upon 
the  assessed  valuation  for  any  one  year,290  and  still  other  phrases 
in  which  the  word  "year"  is  used  as  one  of  limitation  either  as 
to  the  amount  or  the  rate  per  cent  of  the  debt  which  can  be  con- 
tracted. The  word  "year"  in  this  connection  has  been  construed 
as  meaning  either  the  fiscal291  or  the  calendar  year.2*2  In  the 
latter  case  commencing  with  January  first  and  ending  with  De- 
cember thirty-first,  and1  in  the  former  varying  with  the  times  of 
commencement  and  ending  of  the  fiscal  year  as  established  by 
law.  The  ordinary  current  expenses  of  a  public  corporation 
should  not  be  included  in  a  computation  for  ascertaining  its  in- 
debtedness considered  with  reference  to  a  constitutional  limita- 
tion.293 


indebtedness  had  been  reached,  for 
there  must  always  be  some  time  in- 
tervening between  the  drawing  of 
the  warrant  and  its  payment  and 
during  such  time  the  indebtedness 
of  the  state  would  be  increased  be- 
yond the  constitutional  limit.  Such 
an  interpretation  of  the  constitu- 
tional limitation  would  obviously 
be  too  hypercritical  to  be  practi- 
cable or  reasonable." 

Fenton  v.  Blair,  11  Utah,  78,  39 
Pac.  485.  In  this  case  the  court 
held  that  taxes  for  the  current  year 
were  in  contemplation  of  law  col- 
lected as  soon  as  levied  and  there- 
fore a  county  had  a  right  to  allow 
claims  against  it  equal  to  the  tax 
revenue  and  such  claims  would  not 
be  considered  an  indebtedness  or 
liability  within  the  meaning  of  the 
constitutional  limitation.  But  see 
Fuller  v.  City  of  Chicago,  89  111. 
282. 

290  San     Francisco     Gas     Co.     v. 


Brickwedel,  62  Cal.  641;  Weaver  v. 
City  &  County  of  San  Francisco,  111 
Cal.  319;  City  of  Los  Angeles  v. 
Teed,  112  Cal.  319;  W.  W.  Montague 
&  Co.  v.  English,  119  Cal.  225; 
Perry  County  Com'rs  v.  Gardner, 
155  Ind.  165;  Webb  City  &  C.  Water- 
works Co.  v.  City  of  Carterville, 
153  Mo.  128;  Lamar  Water  &  Elec. 
Light  Co.  v.  City  of  Lamar,  128  Mo. 
188;  Putnam  v.  City  of  Grand  Rap- 
ids, 58  Mich.  416;  Atlantic  City 
Water-Works  Co.  v.  Read,  50  N.  J. 
Law,  665,  15  Atl.  10;  Weston  v. 
City  of  Syracuse,  17  N.  Y.  110; 
Fenton  v.  Blair,  11  Utah,  78,  39  Pac. 
485. 

2»i  In  re  Contracting  of  State 
Debt  by  Loan,  21  Colo.  399,  41  Pac. 
1110. 

292Qarfield  Tp.  v.  Samuel  Dods- 
worth  Book  Co.,  9  Kan.  App.  752,  58 
Pac.  565. 

293  City  of  Conyers  v.  Kirk  &  Co., 
78  Ga.  480;  City  of  East  St.  Louis 


350  POWERS.  §   158 

§  158.    Net  debts ;  deduction  of  uncollected  taxes. 

Where  the  constitutional  or  other  limitation  restricts  the  legal 
debts  to  the  proceeds  of  a  certain  rate  of  taxation  upon  taxable 
property  within  the  district,  uncollected  taxes  and  a  levy  for 
the  current  year  should  not  be  deducted  from  the  outstanding 
debt  for  the  purpose  of  ascertaining  the  real  indebtedness.294 


v.  Flannigan,  26  111.  App.  449;  Law 
v.  People,  87  111.  385;  Barrett  v. 
City  of  East  St.  Louis,  89  111.  175; 
City  of  Valparaiso  v.  Gardner,  97 
Ind.  1;  Brashear  v.  City  of  Madison, 
142  Ind.  685;  Grant  v.  City  of  Dav- 
enport, 36  Iowa,  396.  "When  a  con- 
tract made  by  a  municipal  corpora- 
tion pertains  to  its  ordinary  ex- 
penses and  is  together  with  other 
like  expenses  within  the  limits  of 
its  current  revenues  and  such  spe- 
cial taxes  as  it  may  legally  and  in 
good  faith  intend  to  levy  therefor, 
such '  contract  does  not  constitute 
'the  incurring  of  indebtedness' 
within  the  meaning  of  the  constitu- 
tional provision  limiting  the  power 
of  municipal  corporations  to  con- 
tract debt." 

Laycock  v.  City  of  Baton  Rouge,  35 
La.  Ann.  475;  Reynolds  v.  City  of 
Waterville,  92  Me.  292.  But  under 
this  rule  a  city  hall  cannot  be  pur- 
chased on  the  installment  plan. 
Smith  v.  Inhabitants  of  Dedham, 
144  Mass.  177;  City  of  Erie's  Ap- 
peal, 91  Pa.  398.  The  court  in  this 
case  said,  referring  to  the  case  of 
Grant  v.  City  of  Davenport,  36 
Iowa,  396:  "This  we  hesitate  not  to 
say  is  a  sound  constitutional  inter- 
pretation and  in  a  similar  case 
might  well  be  adopted  in  the  con- 
struction of  our  own  constitution. 
If  the  contracts  and  engagements  of 
municipal  corporations  do  not  over- 
reach their  current  revenues,  no  ob- 
jections can  lawfully  be  made  to 


them  however  great  the  indebted- 
ness of  such  municipalities  may  be; 
for  in  such  case  their  engagements 
do  not  extend  beyond  their  present 
means  of  payment  and  so  no  debt 
is  created."  Ivinson  v.  Hance,  1 
Wyo.  275;  Wade  v.  Oakmont,  165 
Pa.  479;  City  of  Terrell  v.  Dessaint, 
71  Tex.  770;  McNeal  v.  City  of 
Waco,  89  Tex.  83.  But  see  Fuller  v. 
Heath,  89  111.  296;  Prince  v.  City  of 
Quincy,  105  111.  138;  City  of  Chicago 
v.  McDonald,  176  111.  404;  City  of 
Chicago  v.  Galpin,  183  111.  399; 
Sackett  v.  City  of  New  Albany,  88 
Ind.  473;  and  Spilman  v.  City  of 
Parkersburg,  35  W.  Va.  605,  which 
hold  that  under  constitutional  pro- 
visions prohibiting  the  incurring  of 
indebtedness  in  excess  of  a  certain 
limit,  the  corporations  specified 
were  prohibited  from  creating  an 
indebtedness  even  for  necessary  cur- 
rent expenses. 

294  Soule  v.  McKibben,  6  Cal.  142; 
Adams  v.  East  River  Sav.  Inst,  65 
Hun  (N.  Y.)  145;  City  of  Council 
Bluffs  v.  Stewart,  51  Iowa,  385; 
Dumphy  v.  Humboldt  County 
Sup'rs,  58  Iowa,  273.  The  statute 
controlling  this  decision  was  to  the 
effect  that  "the  aggregate  amount 
of  tax  to  be  voted  or  levied  under 
the  provisions  of  this  act  in  any 
township,  incorporated  town  or  city 
shall  not  exceed  five  per  centum  of 
the  assessed  value  of  the  property 
therein  respectively."  The  words 
"aggregate  amount"  were  held  here 


§  159 


TO  INCUR  INDEBTEDNESS. 


351 


§  159.    Future  payments  under  executory  contracts  not  usually 
regarded  as  "debts." 

In  section  152  attention  has  been  called  to  the  holding  on  the 
part  of  the  courts  that  the  execution  of  a  contract  by  a  public 
corporation  binding  it  to  the  making  of  certain  payments  during 
the  life  of  the  contract  is  not  an  "indebtedness,"295  the  courts 
holding  the  fixed  or  definite  obligation  on  the  part  of  the  corpo- 
ration as  being  not  the  aggregate  of  the  payments  required  by 
the  contract  but  the  single  payments  as  they  become  due.296 
Such  contracts  are  usually  made  with  private  corporations  or 
individuals  and  have  for  their  purpose  the  supplying  of  the  city 
with  water297  and  light,298  the  public  corporation  itself  not  deem- 


to  mean  all  the  taxes  levied,  and  that 
after  reaching  the  five  per  cent  to- 
tal tax  levy  the  power  to  levy  fur- 
ther taxes  was  exhausted.  Bank 
for  Savings  v.  Grace,  102  N.  Y.  313; 
Brooke  v.  City  of  Philadelphia,  162 
Pa.  123;  Bassett  v.  City  of  El  Paso 
(Tex.  Civ.  App.)  28  S.  W.  554.  In 
ascertaining  whether  a  tax  levy  ex- 
ceeds the  charter  limit,  the  deficit 
in  taxes  collected  as  regards  the 
amount  levied  should  not  be  con- 
sidered. But  see  State  v.  Hopkins, 
13  Wash.  5.  The  current  amount  of 
taxes  assessed  must  be  deducted 
from  the  outstanding  county  indebt- 
edness to  ascertain  whether  such 
indebtedness  exceeds  the  constitu- 
tional provision.  Austin  v.  City  of 
Seattle,  2  Wash.  St.  667. 

295  See  §  152,  note  282,  ante.  Mc- 
Bean  v.  City  of  Fresno,  112  Cal.  159. 
"Although  the  courts  look  with  dis- 
favor upon  contracts  by  municipali- 
ties involving  the  payment  of  mon- 
eys which  extend  over  a  long  period 
of  time  *  *  *  yet  where  it  appears 
that  at  the  time  such  a  contract  was 
entered  into,  it  was  fair  and  reason- 
able and  prompted  by  the  necessi- 
ties of  the  case  or  was  then  advan- 
tageous to  the  municipality,  it  will 


be  upheld  *  *  *  in  the  absence 
of  express  limitation  as  to  the  peri- 
od of  time  for  which  a  contract 
may  be  made."  Higgins  v.  City  of 
San  Diego  (Cal.)  45  Pac.  824; 
Crowder  v.  Town  of  Sullivan,  128 
Ind.  486;  Foland  v.  Town  of  Frank- 
ton,  142  Ind.  546;  Grant  v.  City  of 
Davenport,  36  Iowa,  396;  Beard  v. 
City  of  Hopkinsville,  95  Ky.  239; 
Niles  Waterworks  v.  City  of  Niles, 
59  Mich.  311;  Saleno  v.  City  of  Ne- 
osho,  127  Mo.  627;  Lamar  Water  & 
Elec.  Light  Co.  v.  City  of  Lamar, 
128  Mo.  188;  Davenport  v.  Klein- 
schmidt,  6  Mont.  502;  Read  v.  At- 
lantic City,  49  N.  J.  Law,  558;  Ter. 
v.  City  of  Oklahoma,  2  Okl.  158; 
Salem  Water  Co.  v.  City  of  Salem, 
5  Or.  30;  Wade  v.  Oakmont  Bor- 
ough, 165  Pa.  479;  Nankivil  v.  Yeos- 
ock,  7  Kulp  (Pa.)  518. 

290  Webb  City  &  C.  Waterworks 
Co.  v.  City  of  Carterville,  153  Mo. 
128;  Saleno  v.  City  of  Neosho,  127 
Mo.  627;  Spangler  v.  Leitheiser,  182 
Pa.  277;  Herman  v.  City  of  Oconto, 
110  Wis.  660.  The  rule  applied  to 
a  contract  for  the  construction  of 
a  sewage  system. 

297  walla  Walla  City  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1;  affirm- 


352 


POWERS. 


§   159 


ing  it  expedient  or  being  in  a  financial  condition  to  undertake 
the  construction  of  waterworks  or  lighting  plants  sufficient  for 
its  needs,  but  leaving  this  to  private  enterprise.  The  obligation 


ing  60  Fed.  957.  Such  a  contract 
does  not  create  a  debt  except  condi- 
tionally and  the  annual  payment  is 
dependent  upon  furnishing  the  con- 
sideration by  the  other  party  to  the 
contract  from  year  to  year. 

Keihl  v.  City  of  South  Bend  (C. 
C.  A.)  76  Fed.  921;  Cunningham  v. 
City  of  Cleveland  (C.  C.  A.)  98  Fed. 
657;  City  of  Danville  v.  Danville 
Water  Co.,  180  111.  235;  Younger- 
man  v.  Murphy,  107  Iowa,  686,  76  N. 
W.  648;  Grant  v.  City  of  Davenport, 
36  Iowa,  396.  The  court  based  its 
decision  not  upon  the  principle 
stated  in  the  text  but  upon  the  fact 
that  the  supplying  of  water  to  the 
city  called  for  the  expenditure  of 
"ordinary  expenses."  Creston  Wa- 
terworks Co.  v.  City  of  Creston,  101 
Iowa,  687,  70  N.  W.  739;  Beard  v. 
City  of  Hopkinsville,  95  Ky.  239. 
The  aggregate  payment  for  which 
the  contract  in  this  case  provides  it 
is  held  constitutes  the  obligation  or 
indebtedness  of  the  city,  and  there- 
fore if  the  amount  is  sufficient  it 
comes  within  the  constitutional 
limitation. 

Mayfleld  Woolen  Mills  v.  City  of 
Mayfield,  22  Ky.  L.  R.  1676,  61  S.  W. 
43.  A  contract  by  a  city  with  a 
water  company  for  the  payment  of 
water  rent  is  included  within  the 
"indebtedness"  as  defined  in  Const. 
§  157,  and  therefore  if  the  rate  nec- 
essary to  meet  the  payments  was  in 
excess  of  the  rate  specified  in  the 
constitution  it  would  be  invalid. 

Smith  v.  Inhabitants  of  Dedham, 
144  Mass.  177.  The  supplying  of 
water  by  a  contract  with  a  private 
company  held  to  be  the  making  of 


a  contract  for  current  expenses  and 
not  coming  within  the  limitation  of 
Pub.  St.  Mass.  c.  29,  §  1,  relative  to 
municipal  indebtedness. 

City  of  Lexington  v.  Lafayette 
County  Bank,  165  Mo.  671;  State  v. 
City  of  Great.  Falls,  19  Mont.  518; 
Raton  Waterworks  Co.  v.  Town  of 
Raton,  9  N.  M.  70,  49  Pac.  898.  A 
contract  for  the  payment  of  semi- 
annual water  rents  during  a  period 
of  twenty-five  years  does  not  create 
an  indebtedness  for  the  aggregate 
of  such  payments  within  the  mean- 
ing of  Act  of  Cong.  July  30,  1886, 
limiting  the  amount  of  indebted- 
ness legally  incurrable  by  a  munici- 
pality. 

The  same  is  held  in  Ter.  v.  City 
of  Oklahoma,  2  Okl.  158,  37  Pac. 
1094.  City  of  Cleburne  v.  Cleburne 
Water,  Ice  &  Lighting  Co.,  14  Tex. 
Civ.  App.  229,  37  S.  W.  655.  A  con- 
tract was  held  valid  and  as  not 
creating  a  debt  within  Const,  art. 
11,  which  by  its  terms  provided 
that  the  contractor  should  furnish 
the  city  with  water  free  of  charge 
for  three  years  and  at  an  agreed 
rate  for  two  years  thereafter  per  fire 
hydrant,  although  no  provision  was 
made  as  required  by  the  constitution 
for  the  purpose  of  accumulating  a 
sinking  fund  and  the  payment  of 
interest.  Stedman  v.  City  of  Ber- 
lin, 97  Wis.  505.  An  added  con- 
tract stipulation  giving  the  city  an 
option  to  purchase  the  waterworks 
is  not  to  be  considered  an  obliga- 
tion binding  on  the  city.  Herman 
v.  City  of  Oconto,  110  Wis.  660. 

2»8  Crowder  v.  Town  of  Sullivan, 
128  Ind.  486,  28  N.  E.  94,  follows  the 


TO  INCUR  INDEBTEDNESS. 


353 


•  fii  the  part  of  the  municipality  in  such  case,  it  has  been  held 
repeatedly,  is  the  payment  of  an  annual  or  other  fixed  charge  at 
a  stated  interval  for  the  service  performed,  this  payment  con- 
tingent upon  the  rendering  of  the  service  by  the  other  party  to 
the  contract.  The  form  of  the  contract  may,  however,  determine 
the  courts  to  hold  otherwise  in  some  cases.  Where  there  is  a 
fixed  and  definite  agreement  on  the  part  of  the  municipality  to 
pay  a  certain  sum  from  time  to  time,  irrespective  of  services  per- 
formed, such  obligations  have  been  held  to  be  of  a  sufficiently 
fixed  and  definite  character  as  to  come  within  the  meaning  of  a 
constitutional  limitation  prohibiting  the  incurring  of  indebted- 
ness beyond  a  certain  sum.299 


rule  stated  in  the  text,  the  only 
limitation  being  that  the  indebted- 
ness at  the  time  any  annual  pay- 
ment becomes  due  must  not  exceed 
with  other  indebtedness  the  consti- 
tutional limitation.  Followed  by 
Poland  v.  Town  of  Frankton,  142 
Ind.  546,  holding  that  the  debt  for 
each  year  does  not  come  into  exist- 
ence until  after  the  rendition  of  the 
service  contemplated  by  the  con- 
tract, namely,  the  supplying  of  wa- 
ter and  light. 

Lamar  Water  &  Elec.  Light  Co.  v. 
City  of  Lamar,  128  Mo.  188.  The 
payment  of  the  annual  fixed  charge 
under  the  contract  was  contingent 
on  the  supply  furnished,  and  the 
court  held  that  such  contract  did 
not  create  an  indebtedness  within 
Const,  art.  10,  §  12. 

Wade  v.  Oakmont  Borough,  165 
Pa.  479,  holds  that  an  annual  sum 
is  not  the  incurring  of  a  new  in- 
debtedness within  the  meaning  of 
Const,  art.  9,  §  8,  where  such 
sum  is  to  be  paid  monthly  for  the 
lighting  of  streets  during  a  limited 
time.  Dallas  Elec.  Co.  v.  City  of 
Dallas,  23  Tex.  Civ.  App.  323;  Pol- 
lok  v.  City  of  San  Diego,  118  Cal. 
593.  But  see  City  of  Chicago  v. 
Galpin,  183  111.  399.  The  city  of 


Chicago  had  reached  the  five  per 
cent  limit  of  indebtedness  permitted 
by  Const.  1870,  art.  9,  §  12,  and  the 
court  held  that  a  contract  providing 
for  the  lighting  and  maintenance 
of  street  lamps,  the  consideration 
to  be  paid  by  the  city  monthly  for 
the  lights  furnished  at  an  agreed 
rate,  created  a  definite  debt  in  ex- 
cess of  the  constitutional  limitation. 
Following  City  of  Chicago  v.  Mc- 
Donald, 176  111.  404;  overruling 
City  of  East  St.  Louis  v.  East  St. 
Louis  Gaslight  &  Coke  Co.,  98  111. 
415;  City  of  Carlyle  v.  Carlyle  Wa- 
iter, L.  &  P.  Co.,  140  111.  445;  citing 
Beard  v.  City  of  Hopkinsville,  95 
Ky.  239;  Lake  County  v.  Rollins, 
130  U.  S.  662;  and  Thompson-Hous- 
ton Elec.  Co.  v.  City  of  Newton,  42 
Fed.  723. 

299  Coulson  v.  City  of  Portland, 
Deady,  481,  Fed.  Cas.  No.  3,275;  City 
of  Chicago  v.  McDonald,  176  111.  404. 
After  a  municipality  has  reached  Its 
limit  of  indebtedness  it  is  precluded 
from  making  a  contract  for  the  re- 
moval of  garbage,  payments  to  be 
made  by  it  from  month  to  month  as 
the  work  progresses.  City  of  Chica- 
go T.  Galpin,  183  111.  399;  Allen  v. 
City  of  Davenport,  107  Iowa,  90,  77 
N.  W.  532;  Brown  v.  City  of  Corry,175 


Abb.  Corp.— 23. 


354 


POWERS. 


§   160 


§  160.    Unearned  interest  not  considered  a  "debt." 

In  determining  the  total  amount  of  corporate  liability  for  the 
purpose  of  ascertaining  whether  its  constitutional  limit  has  been 


Pa.  528.  The  contract  in  this  case 
required  the  city  to  pay  the  con- 
structor of  water  works  $6,000  an- 
nually for  twenty  years  and  to  de- 
posit $3,000  annually  for  that  time, 
the  deposit  at  the  end  of  that  time 
to  be  paid  to  him  with  accrued  in- 
terest. It  was  held  the  contract  so 
worded  created  a  debt  within  the 
meaning  of  Const,  art.  9,  §  8. 
Keller  v.  City  of  Scranton,  200  Pa. 
130.  The  city  assumed  the  dam- 
ages to  abutting  property  resulting 
from  a  construction  of  a  viaduct, 
though  the  viaduct  was  not  paid  for 
by  it.  The  court  held  that  such  a 
contract  was  the  incurring  of  an  in- 
debtedness within  the  meaning  of 
the  constitution. 

Earles  v.  Wells,  94  Wis.  285.  The 
court  say:  "The  constitution  of 
this  state  provides  that  'No  county, 
city  or  town,  village,  school  district 
or  other  municipal  corporation 
shall  be  allowed  to  become  indebted 
in  any  manner  or  for  any  purpose, 
to  any  amount  including  existing  in- 
debtedness in  the  aggregate  exceed- 
ing five  per  centum  on  the  value  of 
the  taxable  property  therein  to  be 
ascertained  by  the  last  assessment 
for  state  and  county  taxes  previous 
to  the  incurring  of  such  indebted- 
ness,' that  before  'incurring  such  in- 
debtedness,' such  municipality  must 
'provide  for  the  collection  of  a  direct 
annual  tax  sufficient  to  pay  the  in- 
terest on  such  debt  as  it  falls  due 
and  also  to  pay  and  discharge  the 
principal  thereof  within  twenty 
years  from  the  time  of  contracting 
the  same.'  It  requires  the  authority 
of  no  adjudication  to  prove  that  this 


constitutional  limitation  means  just 
what  it  says  and  is  absolutely  bind- 
ing, not  only  upon  every  such  mu- 
nicipality and  its  officers  but  also 
upon  the  legislature  itself.  Never- 
theless, we  cite  a  few  of  the  many 
cases  construing  similar  constitu- 
tional provisions:  Buchanan  v. 
Litchfield,  102  U.  S.  278;  Weight- 
man  v.  Clark,  103  U.  S.  256;  School 
District  v.  Stone,  106  U.  S.  183; 
Litchfield  v.  Ballou,  114  U.  S.  190; 
Lake  County  v.  Rollins,  130  U.  S. 
662 ;  Lake  County  v.  Graham,  130  U. 
S.  674;  Boon  Tp.  v.  Cummins,  142 
U.  S.  366;  Nesbit  v.  Riverside  Inde- 
pendent Dist,  144  U.  S.  610;  Hedges 
v.  Dixon  County,  150  U.  S.  182." 
But  see  Burlington  Water  Co.  v. 
Woodward,  49  Iowa,  58,  where  the 
court  said:  "The  obligation  of  the 
city  is  to  levy  the  tax  and  see  that 
the  amount  collected  is  applied  to 
the  specified  purposes.  If  the  special 
fund  legally  provided  is  not  suffi- 
cient, then  it  may  be  well  said  the 
deficiency  is  not  payable  by  the  city 
and  it  is  difficult  to  conceive  that 
there  can  be  such  a  thing  as  a  debt 
which  is  never  to  be  paid.  No  bur- 
den is  created  thereby  and  there  can- 
not be  such  an  indebtedness.  In  a 
constitutional  sense,  the  prohibited 
indebtedness  must  be  a  burden  and 
payable  from  funds  which  could  not, 
constitutionally,  be  appropriated  to 
that  purpose.  Whether  the  fund 
legally  provided  will  be  sufficient  for 
the  designated  purpose,  we  have  no 
means  of  knowing.  Nor  is  this  re- 
garded as  material  if  no  other 
charge  is  created  on  the  city  by  the 
ordinance." 


§  161 


TO  INCUR  INDEBTEDNESS. 


355 


reached,  unearned  interest  coupons  attached  to  legal  and  out- 
standing bonds  are  not  considered  a  part  of  its  indebtedness 
within  the  meaning  of  a  constitutional  limitation.300 

§  161.    Deduction  of  assets  to  determine  net  debt. 

Constitutional  provisions  may  limit  the  amount  of  indebtedness 
legally  incurrable  to  a  certain  rate  of  taxation  or  a  certain  per- 
centage upon  the  taxable  property  of  the  corporation.  In  deter- 
mining whether  the  limitation  as  thus  provided  has  been  reached, 
municipalities  in  some  cases  have  computed  their  debt  as  their 
total  outstanding  obligations,  less  the  value  of  certain  assets.301 
The  courts  usually  hold  that  warrants  or  other  evidences  of  in- 
debtedness outstanding  at  a  time  as  already  stated302  and  for  the 
payment  of  which  there  is  money  in  the  treasury  or  taxes  levied 
and  not  collected  are  not  to  be  considered  a  part  of  the  indebted- 
ness in  such  computation,  and  that  cash  in  the  treasury  and  taxes 
levied  but  not  collected  should  be  considered  an  asset  of  the  cor- 
poration.303 


300  Durant  v.  Iowa  County,  1 
Woolw.  69,  Fed.  Cas.  No.  4,189;  City 
of  Springfield  v.  Edwards,  84  111. 
626;  Park  v.  Candler,  114  Ga.  466, 
40  S.  E.  523.  Interest  contracted  to 
be  paid  is  as  much  a  part  of  the 
debt  for  the  purpose  of  payment  as 
the  principal  named  in  the  bond. 
Kelly  v.  Cole,  63  Kan.  385;  City 
of  Ashland  v.  Culbertson,  103  Ky. 
161;  Finlayson  v.  Vaughn,  54  Minn. 
331.  "If  the  principal  alone  is  con- 
sidered it  is  obvious  that  the  total 
amount  of  the  bonds  was  within  the 
five  per  cent  limit,  but  the  plaintiff 
claims  that  the  interest  which  by 
the  terms  of  the  bonds  it  was  to 
carry  from  year  to  year  from  the 
date  thereof,  must  be  included  in 
the  amount  allowed  to  be  issued  by 
the  statute.  This  is  clearly  errone- 
ous as  the  court  below  held.  These 
interest  coupons  form  no  part  of 
the  principal  debt  and  the  bonds 
when  issued  represented  at  that  date 


the  indebtedness  for  the  principal 
sum  only."  Jones  v.  Hurlburt,  13 
Neb.  125;  Herman  v.  City  of  Oconto, 
110  Wis.  660,  86  N.  W.  681. 

soi  Lovejoy  v.  Inhabitants  of  Fox- 
croft,  91  Me.  367;  Davenport  v. 
Kleinschmidt,  6  Mont.  502. 

302  See  §  156. 

sos  French  v.  City  of  Burlington, 
42  Iowa,  614.  Uncollected  taxes  con- 
sidered an  asset  up  to  the  time  of 
annual  tax  sale.  German  Insurance 
Co.  v.  City  of  Manning,  95  Fed.  597. 
But  in  the  case  of  City  of  Chicago  v. 
McDonald,  176  111.  404,  the  court 
held  that  cash  in  the  city  treasury 
and  uncollected  taxes  should  not  be 
deducted.  Maysville  &  L.  Turnpike 
Road  Co.  v.  Wiggins,  20  Ky.  L.  R. 
724,  47  S.  W.  434. 

Lovejoy  v.  Inhabitants  of  Fox- 
croft,  91  Me.  367.  Uncollected  taxes, 
the  town  farm  and  other  property 
owned  or  held  by  the  town,  should 
not  be  deducted  as  assets  from  the 


356 


POWERS. 


162 


§  162.    Corporate  indebtedness ;  its  payment  from  a  special  fund. 

Indebtedness  legally  incurred  by  a  public  corporation  is  often 
payable  not  out  of  the  general  revenues  of  the  municipality  but 


total  debts  or  liabilities.  In  Kelly  v. 
City  of  Minneapolis,  63  Minn.  125, 
it  was  held  that  the  amount  of  bonds 
and  money  in  the  sinking  fund  of 
Minneapolis  was  to  be  deducted  from 
the  total  amount  of  outstanding 
bonds  of  the  city  in  determining 
whether  the  indebtedness  of  the  mu- 
nicipality had  reached  the  constitu- 
tional limitation,  "that  all  of  the 
bonds  held  by  the  sinking  fund  are 
the  bonds  of  the  city,  hence  the 
amount  of  the  bonds  and  the  amount 
in  the  fund  must  necessarily  repre- 
sent an  equal  amount  of  the  out- 
standing and  uncanceled  bonds  and 
indebtedness  of  the  city  which  has 
already  been  realized  from  taxation 
to  pay  the  bonds,  and  to  ascertain 
the  further  amount  to  be  raised  by 
taxation  in  order  to  extinguish  the 
entire  indebtedness  of  the  city,  it 
necessarily  follows  that  the  amount 
of  the  sinking  fund  is  to  be  de- 
ducted from  the  entire  amount  of 
the  apparent  indebtedness  of  the 
city.  The  balance  is  its  actual  debt. 
The  debt  limit  of  the  statute  has  ref- 
erence to  an  actual  indebtedness  for 
the  payment  of  which  a  tax  must 
be  levied,  not  to  an  uncanceled  ap- 
parent liability." 

Bank  v.  Grace,  102  N.  Y.  313.  In 
Webb  City  &  C.  Waterworks  Co.  v. 
City  of  Carterville,  142  Mo.  101,  the 
court  held  that  as  relating  to  the 
power  of  the  city  to  contract  debts 
in  any  year  in  excess  of  its  income, 
money  derived  from  a  sale  of  bonds 
was  not  to  be  considered  a  part  of 
such  income  or  revenue. 

State  v.  Hopkins,  14  Wash.  59,  44 
Pac.  134.  Within  the  meaning  of  the 


constitutional  provision  limiting  in- 
debtedness locally  incurrable  by 
counties,  the  cash  assets  of  the  coun- 
ty should  be  deducted  from  the  out- 
standing indebtedness  to  ascertain 
the  actual  indebtedness. 

See  Brooke  v.  City  of  Philadelphia, 
162  Pa.  123,  as  following  the  doc- 
trine held  in  the  case  of  Kelly  v. 
City  of  Minneapolis,  63  Minn.  125; 
Kelley  v.  Pierce  County,  15  Wash. 
697;  Graham  v.  City  of  Spokane,  19 
Wash.  447.  Assets  of  the  city  ap- 
plicable to  the  payment  of  its  debts 
consisting  of  cash  in  hand,  taxes  as- 
sessed for  the  year  during  which 
the  indebtedness  is  contracted,  and 
unpaid  taxes  of  prior  years,  are  all 
to  be  deducted. 

Crogster  v.  Bayfield  County,  99 
Wis.  1.  The  rule  as  given  in  the  text 
is  followed  and  the  court  hold  that 
the  amount  of  cash  on  hand  with  the 
available  assets  and  resources  read- 
ily convertible  into  cash  should  be 
subtracted  from  outstanding  indebt- 
edness to  ascertain  the  actual  debt. 

Rice  v.  City  of  Milwaukee,  100 
Wis.  516,  76  N.  W.  341.  Prospective 
revenue  indefinite  and  uncertain  in 
amount  should  not  be  included  as  an 
asset  of  the  corporation  for  the  pur- 
pose of  determining  whether  it  has 
reached  the  limit  of  its  indebtedness. 
The  court  say:  "As  already  noted, 
the  moneys  to  be  derived  from  these 
sources  (licenses)  are  entirely  in- 
definite and  uncertain.  They  were 
not  in  the  process  of  collection  and 
could  be  collected  only  at  the  will  of 
parties  who  sought  privileges  for 
which  license  charges  were  made, 
and  for  that  reason  could  not  be  con- 


162 


TO  INCUR  INDEBTEDNESS. 


357 


Irom  some  special  fund  raised  through  the  imposition  of  taxes  or 
special  assessments  upon  certain  property  or  in  a  certain  manner 
and  having  for  its  purpose  the  reduction  and  ultimately  the  pay- 
ment of  sueh  indebtedness.304  This  is  especially  true  where  the 
debt,  whether  evidenced  by  negotiable  bonds  or  other  forms,  was 
contracted  for  the  especial  purpose  of  constructing  works  of 
internal  or  local  improvement,  namely,  bridges,  highways,  and  in 
municipal  corporations  proper  for  the  grading,  paving  or  general 
improvement  of  streets.305  It  seems  to  be  the  rule  that  where 


sidered  as  available  assets  or  re- 
sources. *  *  *  It,  therefore, 
seems  clear  that  these  unknown  and 
unascertained  items  of  income 
should  not  and  cannot  be  considered 
as  offsets  against  the  city's  indebted- 
ness. If  our  conclusions  are  correct, 
it  is  readily  apparent  that  the  city 
had  already  pledged  its  credit  to  an 
amount  exceeding  the  debt  limit  and 
had  no  right  to  make  the  proposed 
bond  issue."  In  Herman  v.  City  of 
Oconto,  110  Wis.  660,  the  court  held 
that  taxes  which  had  been  apportion- 
ed by  the  secretary  of  the  state  but 
which  were  not  payable  until  the  fol- 
lowing December,  the  contract  in 
this  case  being  made  in  October, 
could  not  be  considered  as  an  asset 
of  the  city  for  the  purpose  of  deduc- 
tion under  the  rule  stated  in  the 
text. 

304  Santa  Ana  Water  Co.  v.  San 
Buenaventura,  56  Fed.  339;  Smith 
Canal  or  Ditch  Co.  v.  City  of  Denver, 
20  Colo.  84;  State  v.  Bell,  9  Ga.  334; 
City  of  Chicago  v.  Shober  &  C.  Lith- 
ographing Co.,  6  111.  App.  560;  Dehm 
v.  City  of  Havana,  28  111.  App.  520; 
Carlyle  Water,  L.  &  P.  Co.  v.  City 
of  Carlyle,  31  111.  App.  325;  Second 
Nat.  Bank  v.  Town  of  Danville,  60 
Ind.  50 1;  City  of  Indianapolis  v. 
Wann,  144  Ind.  175;  Wilson  v.  City 
of  Shreveport,  29  ba.  Ann.  673; 
Mister  v.  City  of  Kansas,  18  Mo. 


App.  217;  Kingsland  v.  City  of  New 
York,  5  Daly  (N.  Y.)  448;  Blair  Y. 
Lantry,  21  Neb.  247;  McElhinney  v. 
City  of  Superior,  32  Neb.  744;  Wins- 
ton v.  City  of  Ft.  Worth  (Tex.  Civ. 
App.)  47  S.  W.  740;  Kaufle  v.  De- 
laney,  25  W.  Va.  410. 

305  Monroe  County  Com'rs  v.  Har- 
rell,  147  Ind.  500,  46  N.  E.  124;  Af- 
feld  v.  City  of  Detroit,  112  Mich.  560. 
Detroit  Charter  Local  Laws  1883,  p. 
629,  §  8,  provide  that  no  public  work 
shall  be  paid  for  except  by  a  special 
assessment  to  be  made  upon  the 
property  benefited.  The  court  held 
that  such  work  could  not  be  paid 
from  funds  raised  for  a  different  pur- 
pose and  say,  "Apparently,  the  city 
has  had  the  benefit  of  the  plaintiff's 
labor,  under  circumstances  which 
made  it  inequitable  that  he  should 
not  be  paid  for  it.  As  before  stated, 
whether  the  law  will  now  permit 
an  assessment  to  raise  the  money  to 
pay  him,  we  have  no  means  of  know- 
ing; but  we  feel  constrained  to  hold 
that,  whether  it  will  or  not,  the 
work  cannot  be  paid  for  from  any 
other  fund  than  that  raised  for  the 
purpose  according  to  law." 

Kelly  v.  City  of  Minneapolis,  63 
Minn.  125.  Certificates  calling  for 
the  payment  of  money  and  issued  by 
the  park  board  of  the  city  of  Minne- 
apolis are  not  an  indebtedness  of  the 
city  within  the  meaning  of  Laws 


358 


POWERS. 


§  162 


indebtedness  is  thus  to  be  paid  from  a  special  fund  created  in  the 
manner  suggested,  its  legality  will  not  be  affected  by  the  diver- 
sion of  moneys  from  such  funds  or  the  failure  to  levy  and  collect 
the  taxes  which  the  corporation  may  be  legally  authorized  to  do 
in  this  behalf.  Creditors  who  are  entitled  to  have  the  amounts 
owing  them  paid  from  revenues  collected  in  this  way,  usually 


1893,  c.  204,  §  2,  limiting  the  indebt- 
edness of  cities.  The  court  in  its 
opinion  by  Start,  Chief  Justice,  say: 
"The  certificates  in  question  were 
given  for  the  purchase  price  of  land 
for  park  purposes,  and  their  pay- 
ment secured  by  a  mortgage  on  the 
land  purchased.  Each  certificate 
states  that  the  city  of  Minneapolis 
is  indebted  to  the  payee  in  the  sum 
therein  named,  and  recites  that  the 
consideration  therefor  is  the  convey- 
ance to  the  city  by  the  payee  of  land 
for  park  purposes,  and  that  the  cer- 
tificate is  secured  by  a  mortgage  on 
the  land  sold,  and  that  it  is  payable 
out  of  the  funds  arising  from  assess- 
ments made  upon  real  estate  special- 
ly benefited  by  the  park  established 
on  the  land,  and  concludes  with 
these  words:  'It  being  expressly 
nuderstood  and  agreed  that  there  is 
no  liability  on  the  part  of  said  city 
to  pay  the  amount  evidenced  by  this 
certificate  and  secured  by  the  above 
described  mortgage  out  of  any  other 
fund  than  the  fund  above  specified.' 
No  certificates  issued  or  contracts 
made  by  the  park  board  can  be  given 
any  legal  effect  contrary  to  or  in  ex- 
cess of  the  powers  conferred  upon 
the  board  by  the  statute  we  have 
quoted,  and  they  are,  in  fact,  sub- 
stantially in  accordance  with  its  pro- 
visions. The  board  has  no  power 
to  make  these  certificates  a  lien  gen- 
erally upon  all  the  parks  of  the  city, 
and  the  record  shows  that  no  at- 
tempt has  been  made  to  secure  their 
payment  by  the  creation  of  such  a 


lien.  *  *  *  The  debt  of  the  city 
is  neither  increased  nor  diminished 
by  the  transaction.  No  revenues  of 
the  city  which  must  be  raised  or  re- 
placed by  taxation  are  pledged  for 
the  payment  of  the  certificates.  The 
statute  expressly  provides  that  the 
park  board  cannot  create  any  per- 
sonal or  general  liability  on  the  part 
of  the  city  by  any  certificates  they 
may  issue,  except  to  pay  such 
amounts  as  may  be  realized  from  as- 
sessments on  property  benefited  on 
account  of  the  acquisition  of  the 
land  purchased  for  park  purposes. 
In  no  event,  nor  under  any  circum- 
stances, is  the  city  liable,  except  as 
a  trustee,  to  pay  over  to  the  cer- 
tificate holder  the  amount  actually 
realized  from  the  assessments. 
*  *  *  How,  then,  can  it  be  said 
that  these  certificates,  for  the  pay- 
ment of  which  the  city  is  not  liable, 
and  for  which  no  tax  can  be  levied, 
are  an  indebtedness  of  the  city,  with- 
in the  meaning  of  the  statute  fixing 
the  debt  limit?" 

Queens  County  Sup'rs  v.  Phipps, 
35  App.  Div.  350,  54  N.  Y.  Supp.  946. 
Under  Laws  1898,  c.  614,  the  county 
commissioners  it  was  decided  could 
apply  the  balance  of  a  fund  raised  in 
the  manner  indicated  in  the  text  for 
the  improvement  of  highways  but 
not  needed  for  its  original  purpose 
to  pay  a  debt  contracted  in  con- 
structing a  jail.  Baker  v.  City  of 
Seattle,  2  Wash.  St.  576.  See  also 
many  authorities  cited  §  152,  notes 
278  and  279. 


§  162 


TO  INCUR  INDEBTEDNESS. 


359 


have  the  right  to  compel  an  accounting  of  the  funds  in  the  case 
of  a  wrongful  diversion  and  to  maintain  proceedings  against  the 
city  or  public  officials  where  through  such  action  they  have  suf- 
fered an  injury.306  Their  rights  cannot  be  defeated  by  illegal 
acts  of  public  officials  appropriating  and  using  these  funds  for 
other  purposes.307  Neither  can  they  be  affected  or  destroyed  by 
the  failure  of  the  municipal  officers  to  levy  the  tax  authorized  by 
law  for  the  purpose  of  making  the  payment  due.  If  the  proper 
officials  fail  in  this  regard  those  to  whom  the  contract  obligation 
is  due  can  by  writ  of  mandamus  or  proper  proceeding  compel  the 
levying  of  a  sufficient  tax  to  make  such  payment.  This  principle 
is  especially  applicable  where  under  a  contract  for  the  furnishing 
of  light  or  water  the  municipality  has  failed  to  make  its  contract 
payments  but  still  insists  on  using  and  does  use  light  and  water 
thus  supplied.308  If  there  is  no  provision  by  which  such  indebt- 
edness is  to  be  paid  through  the  imposition  of  assessments  or 
taxes,  but  it  is  specially  charged  upon  the  general  revenues  of 
the  corporation,  it  seems  to  be  the  rule  that  these  general  reve- 
nues must  be  applied  first  to  the  payment  of  the  current  or 
running  expenses  and  the  surplus  income,  if  any,  used  in  the  pay- 
ment of  the  principal  or  interest  of  such  bonded  or  other  indebt- 
edness.309 


»oe  City  of  New  Orleans  v.  Fisher, 
(C.  C.  A.)  91  Fed.  574;  Village  of 
Kent  v.  United  States  (C.  C.  A.)  113 
Fed.  232;  Bates  v.  Porter,  74  Cal. 
224,  15  Pac.  732;  Leonard  v.  Long 
Island  City,  65  Hun  (N.  Y.)  621; 
McGlue  v.  City  of  Philadelphia,  32 
Leg.  Int.  188;  Gate  v.  City  of  Phila- 
delphia, 14  Wkly.  Notes  Gas.  274. 

307  Cooke  v.  Village  of  Saratoga 
Springs,  23  Hun  (N.  Y.)  55;  People 
v.  City  of  Cairo,  50  111.  154;  State  v. 
McCrillus,  4  Kan.  250.  The  court  in 
speaking  of  the  control  of  the  county 
board  over  bonds  say:  "The  bonds 
are  ascertained  claims  not  in  any 
wise  depending  on  the  action  of  the 
board  for  their  validity.  They  have 
no  power  to  audit  or  allow  them  or 
to  disallow  them.  This  power  over 


them  was  ended  when  they  passed 
into  other  hands  for  a  valid  consider- 
ation." 

sos  Elliott  County  v.  Kitchen,  14 
Bush  (Ky.)  289.  The  rule  stated  in 
the  text  applied  to  the  payment  of 
an  issue  of  bonds  authorized  by  law. 
State  v.  City  of  Great  Falls,  19  Mont, 
518;  City  of  Wilkesbarre's  Appeal, 
116  Pa.  246.  Municipal  corporations 
under  Pa.  Const,  art.  15,  §  3,  are 
authorized,  in  addition  to  the  pow- 
ers of  taxation  they  may  possess,  to 
levy  a  tax  for  the  creation  of  a  sink- 
ing fund  having  for  its  purpose  the 
ultimate  payment  of  their  indebted- 
ness. 

309  white  v.  City  of  Decatur,  119 
Ala.  476,  23  So.  999;  City  of  East  St. 
Louis  v.  Flannigen,  34  111.  App.  596; 


360  POWERS.  §  163 

§  163.    Its  payment  through  the  levy  of  taxes. 

Corporate  indebtedness  legally  incurred  for  a  public  purpose 
by  the  corporation  in  its  capacity  as  a  public  or  governmental 
agent  is  generally  paid  through  the  imposition  and  collection  of 
taxes,  and,  as  will  be  noted  in  a  succeeding  section,310  the  pay- 
ment of  a  valid  indebtedness  is  considered  a  public  purpose  and 
one  authorizing  such  action.  In  the  absence  of  a  constitutional 
or  statutory  limitation  upon  the  power  to  tax,  the  granting  of 
the  authority  to  incur  an  indebtedness  impliedly  authorizes  the 
levy  of  taxes  sufficient  to  pay  the  debt  and  the  interest  as  it 
becomes  due.811  Though  some  few  cases  hold  to  the  contrary, 


Allen  v.  City  of  Davenport,  107  Iowa, 
90,  77  N.  W.  532. 

sio  City  of  Guthrie  v.  Ten,  1  Okl. 
188,  31  Pac.  190.  The  legislature 
has  the  authority  to  provide  for  the 
payment  by  a  village  corporation  of 
the  debts  of  a  prior  provisional  gov- 
ernment embracing  the  same  terri- 
tory. The  court  say:  "It  is  a 
fundamental  rule  that  a  legislature 
may,  by  a  retroactive  statute  cure  or 
ratify  any  defect  which  it  might 
have  in  the  first  instance,  authorized 
unless  prohibited  by  some  constitu- 
tional or  organic  provision;  or  it 
may  by  a  retroactive  statute,  legalize 
any  proceedings  that  it  might  have 
authorized.  It  can  hardly  be  con- 
tended that  the  legislature  could  not 
have  authorized  the  creation  of  the 
debts  of  the  provisional  government 
had  there  been  a  legislature  prior 
to  their  organization." 

311  Simonton  Mun.  Bonds,  §  133. 
Citizens'  Sav.  &  Loan  Ass'n  v.  City 
of  Topeka,  87  U.  S.  (20  Wall.)  655. 
"Buti  such  instances  are  few  and  ex- 
ceptional, and  the  proposition  is  a 
very  broad  one,  that  debts  contract- 
ed by  municipal  corporations  must 
be  paid,  if  paid  at  all,  out  of  taxes 
which  they  may  lawfully  levy,  and 
that  all  contracts  creating  debts  to 


be  paid  in  future,  not  limited  to  pay- 
ment from  some  other  source,  im- 
ply an  obligation  to  pay  by  taxation. 
It  follows  that  in  this  class  of  cases 
the  right  to  contract  must  be  limited 
by  the  right  to  tax,  and  if  in  the 
given  case  no  tax  can  lawfully  be 
levied  to  pay  the  debt,  the  contract 
itself  is  void  for  want  of  authority 
to  make  it.  If  this  were  not  so, 
these  corporations  could  make  valid 
promises,  which  they  have  no  means 
of  fulfilling,  and  on  which  even  the 
legislature  that  created  them  can 
confer  no  such  power.  The  validity 
of  a  contract  which  can  only  be  ful- 
filled by  a  resort  to  taxation,  de- 
pends on  the  power  to  levy  the  tax 
for  that  purpose.  It  is  therefore  to 
be  inferred  that  when  the  legisla- 
ture of  the  state  authorizes  a  county 
or  city  to  contract  a  debt  by  bond,  it 
intends  to  authorize  it  to  levy  such 
taxes  as  are  necessary  to  pay  the 
debt,  unless  there  is  in  the  act  itself, 
or  in  some  general  statute,  a  limita- 
tion upon  the  power  of  taxation 
which  repels  such  an  inference." 

United  States  v.  City  of  New  Or- 
leans, 98  U.  S.  381;  Rails  County 
Court  v.  United  States,  105  U.  S. 
735;  City  of  Quincy  v.  Jackson,  113 
U.  S.  335;  United  States  v.  Justices 


§   165  TO  INCUR  INDEBTEDNESS.  361 

the  weight  of  authority  is  sustained  by  the  better  reason.81* 
"Where  the  limit  of  indebtedness  is  based  upon  a  percentage  of 
taxes  levied  on  taxable  property  within  the  jurisdiction  of  the 
corporation,  indebtedness  created,  and  which  will  necessitate  for 
its  payment,  as  stated  in  preceding  sections,313  the  levy  of  a  tax 
in  excess  of  the  constitutional  or  other  amount,  becomes  void  or 
invalid  in  respect  to  the  excess. 

§  164.    Manner  of  levying  taxes. 

The  taxing  power  of  a  public  corporation  can  be  exercised 
legally  only  in  the  manner  prescribed  by  law  and  with  the  for- 
malities required.  The  sovereign  undoubtedly  has  the  right  to 
compel,  restricted  only  by  constitutional  limitations,  the  payment 
of  taxes  sufficient  to  meet  all  public  expenditures  it  deems  expe- 
dient to  make.  The  power  necessarily,  like  all  corporate  pow- 
ers, must  be  exercised  through  agents,  and  in  order  to  control  and 
limit  their  action  for  the  protection  of  taxable  interests,  the  law, 
in  the  imposition  and  collection  of  taxes,  adheres  rigidly  to  this 
strict  rule  of  construction.  It  is  necessary  therefore  that  a  tax 
levied  for  the  payment  of  a  debt,  to  be  valid,  must  be  imposed 
with  the  formalities  required  by  the  charter  of  a  municipality  or 
the  statutory  and  constitutional  provisions  of  the  state,  and  this 
is  true  although  the  indebtedness  which  the  tax  is  designed  to 
liquidate  was  legal  and  binding  in  its  original  incurment. 

§  165.    Provision  for  payment  at  time  debt  was  incurred. 

In  a  preceding  section  discussing  the  various  charter,  statutory 
and  constitutional  restrictions  upon  the  power  of  a  public  cor- 
poration to  incur  indebtedness,314  reference  has  been  made  to 
phraseology  similar  to  that  of  the  Illinois  Const.  1870,  art.  9, 
§  12,  that  any  municipal  corporation  incurring  indebtedness  shall 
"provide  for  the  collection  of  a  direct  annual  tax  sufficient  to 
pay"  the  interest  as  it  falls  due  and  the  principal  within  a  cer- 

of    the    County    Court    of    Lincoln  *12  Shackelton  v.  Town  of  Gutten- 

County,   5   Dill.   184,  Fed.  Cas.   No.  berg,  39  N.  J.  Law,  660. 

15,503;     Young    v.    Tipton    County  sis  See  §§  151  et  seq. 

Com'rs,  137  Ind.  323,  36  N.  E.  1118;  «"  See  §  15L 

Feldman  &   Co.   v.   City   Council   of 

Charleston,  23  S.  C.  62. 


362 


POWERS. 


165 


tain  number  of  years.  In  the  case  there  cited  the  indebted- 
ness was  held  legal  only  when  its  ineurment  was  accompanied 
by  a  provision  looking  to  its  ultimate  payment  in  the  manner 
required  by  law.315  And  the  courts  have  held  further  in  con- 
struing such  provisions  that  their  existence  gives  to  the  public 
corporation  an  implied  power  to  levy  taxes  for  such  purpose 
without  further  legislative  action.316  Where  a  sinking  fund  is 
created  by  law  at  the  time  of  the  ineurment  of  an  indebtedness 
through  the  levy  and  collection  of  a  certain  tax,  the  payment  of 


SIB  United  States  v.  City  of  New 
Orleans,  98  U.  S.  381.  But  a  subse- 
quent statute  authorizing  the  incur- 
ring of  a  special  obligation  will  be 
valid  with  such  a  provision  omitted. 
City  of  East  St.  Louis  v.  United 
States,  120  U.  S.  600,  7  Sup.  Ct.  739. 
The  court  here  held  a  provision  of 
the  charter  of  East  St.  Louis  limit- 
ing the  rate  of  taxation,  in  existence 
prior  to  the  adoption  of  the  consti- 
tution, unaffected  by  it. 

Smith  Canal  Co.  v.  City  of  Den- 
ver, 20  Colo.  84;  City  of  Chicago  v. 
Shober  &  C.  Lithographing  Co.,  6  111. 
App.  560;  Dehm  v.  City  of  Havana, 
28  111.  App.  520;  Second  Nat.  Bank 
v.  Town  of  Danville,  60  Ind.  504; 
City  of  Richmond  v.  McGirr,  78  Ind. 
192;  City  of  Indianapolis  v.  Wann, 
144  Ind.  175.  Under  Ind.  Rev.  St., 
1894,  §  3822,  requiring  an  appropria- 
tion necessary  as  to  the  validity  of 
a  debt  incurred,  a  five-year  lighting 
contract  is  void  when  the  appropria- 
tion for  the  purpose  is  available  only 
for  the  current  month  and  the  one 
following. 

Carleton  &  Co.  v.  City  of  Wash- 
ington, 38  Kan.  726;  Wilson  v.  City 
of  Shreveport,  29  La.  Ann.  673.  New 
Orleans  Gaslight  Co.  v.  City  of  New 
Orleans,  42  La.  Ann.  188,  holds  con- 
trary to  City  of  Indianapolis  v. 
Wann,  144  Ind.  175.  Kiichli  v.  Brush 
Elec.  Co.,  58  Minn.  418;  Mister  v. 


City  of  Kansas,  18  Mo.  App.  217; 
City  of  Blair  v.  Lantry,  21  Neb.  247; 
McElhinney  v.  City  of  Superior,  32 
Neb.  744. 

Cooke  v.  Village  of  Saratoga 
Springs,  23  Hun  (N.  Y.)  55.  The 
wrongful  diversion  of  moneys  raised 
by  a  tax  levied  for  the  purpose  of 
paying  certain  indebtedness  will  not 
render  void  such  indebtedness.  Min- 
gay  v.  Hanson,  102  N.  Y.  695.  Spe- 
cial authority  may  be  granted  by 
special  legislation.  Appeal  of  Tat- 
ham,  80  Pa.  465.  Such  a  statutory 
provision  applies  only  to  a  funded 
debt  or  loan  of  a  city;  not  to  a  con- 
tract. City  of  Dallas  v.  Miller,  7 
Tex.  Civ.  App.  503.  The  constitu- 
tional provision  does  not  apply  to  an 
obligation  arising  from  a  tort.  Noel 
v.  City  of  San  Antonio,  11  Tex.  Civ. 
App.  580,  33  S.  W.  263.  Tex.  Const, 
art.  11,  §  5,  provides  that  no  debt 
shall  be  created  by  any  city  unless 
at  the  same  time  provision  is  made 
to  collect  annually  a  sufficient  sum 
to  pay  the  interest  and  create  a 
sinking  fund  of  at  least  2%  of  the 
face  of  such  indebtedness.  It  was 
held  in  this  case  that  a  contract:  was 
void  executed  without  such  provis- 
ion, the  obligation  consisting  of 
notes  payable  for  a  series  of  years. 

Dwyer  v.  City  of  Brenham,  65  Tex. 
526.  Tex.  Const,  art.  11,  §  5,  does  not 
apply  to  a  debt  contracted  by  a  city 


§  165 


TO  INCUR  INDEBTEDNESS. 


363 


the  indebtedness  from  the  sinking  fund  necessarily  deprives 
public  officials  of  the  power  to  thereafter  insert  in  the  tax  levy 
an  item  for  this  purpose.817  Where  the  statutes  provide,  using 
the  phraseology  "may  levy  taxes  annually"  for  the  creation  of 
such  a  sinking  fund,  the  courts  will  usually  hold  the  power  as 
not  a  discretionary  one  but  a  provision  mandatory  in  its  nature, 
and  creditors  dependent  upon  such  taxes  for  the  payment  of  the 
interest  or  a  part  of  the  principal  of  their  debt  can  compel  the 
proper  officials  to  levy  this  tax.318 


for  current  expenses,  viz.,  the  print- 
ing and  binding  of  city  ordinances. 
City  of  Terrell  v.  Dessaint,  71  Tex. 
770;  McNeal  v.  City  of  Waco,  89 
Tex.  83. 

siecooley,  Tax'n  (2d  Ed.)  p.  685, 
and  authorities  cited.  See  §  163 
supra. 

SIT  Newark  Aqueduct  Board  v.  City 
of  Newark,  50  N.  J.  Law,  10  Atl.  881; 
Chicago  &  N.  W.  R.  Co.  v.  Faulk 
County,  15  S.  D.  501,  90  N.  W.  149. 
A  sinking  fund  tax  levied  to  pay  an 
outstanding  debt  consisting  of  or- 
dinary county  warrants  is  void. 

sis  Rock  Island  County  Sup'rs  v. 
United  States,  72  U.  S.  (4  Wall.) 
435,  where  the  court  said  in  spjak- 
ing  of  phraseology  similar  to  that 
used  in  Village  of  Kent  v.  United 
States  (C.  C.  A.)  113  Fed.  232,  af- 
firming United  States  v.  Village  of 
Kent,  107  Fed.  190:  "The  conclu- 
sion to  be  deduced  from  the  authori- 
ties is  that  where  power  is  given  to 
public  officers,  in  the  language  of  the 
act  before  us,  or  in  equivalent  lan- 
guage,— whenever  the  public  inter- 
est or  individual  rights  call  for  its 
exercise, — the  language  used,  though 
permissive  in  form,  is  in  fact  per- 
emptory. What  they  are  empowered 
to  do  for  a  third  person  the  law  re- 
quires shall  be  done.  The  power  is 
given  not  for  their  benefit,  but  for 
his.  It  is  placed  with  the  depositary 
to  meet  the  demands  of  right,  and  to 


prevent  a  failure  of  justice.  Tt  is 
given  as  a  remedy  to  those  entitled 
to  invoke  its  aid,  and  who  would 
otnerwise  be  remediless.  In  all  such 
cases  it  is  held  that  the  intent  of 
the  legislature,  which  is  the  test, 
was  not  to  devolve  a  mere  discretion, 
but  to  impose  'a  positive  and  abso- 
lute duty.'  The  line  which  separates 
this  class  of  cases  from  those  which 
involve  the  exercise  of  a  discretion 
judicial  in  its  nature,  which  courts 
cunnot  control,  is  too  obvious  to  re- 
quire remark.  This  case,  clearly, 
does  not  fall  within  the  latter  cate- 
gory." City  of  Galena  v.  Amy,  73 
U.  S.  (5  Wall.)  705. 

Village  of  Kent  v.  United  States 
(C.  C.  A.)  113  Fed.  232;  affirm- 
ing United  States  v.  Village  of 
Kent,  107  Fed.  190.  "But  it  is 
well  settled  in  statutory  interpre- 
tation that  the  word  'may*  may 
be  read  'shall.'  *  *  *  This  lan- 
guage seems  to  us  applicable  to  the 
statute  under  consideration.  The 
power  to  levy  this  tax  is  given  for 
the  benefit  of  the  creditors  in  this 
case  to  meet  a  demand  adjudicated 
to  be  right  and  proper  after  full 
trial.  It  imposes  a  duty  upon  the 
council  which,  in  our  judgment,  they 
are  required  to  exercise  so  long  as 
they  are  able  to  do  so  within  the 
limit  imposed  by  the  law  upon  the 
amount  of  taxation  for  any  given 
year.  We  therefore  construe  this 


364 


POWERS. 


§  166 


§  166.    Debt;  mode  of  payment. 

There  will  also  be  found  constitutional  provisions  to  the  effect 
that  a  public  corporation  cannot  incur  indebtedness  in  excess 
of  the  current  or  actual  revenues  and  income  of  the  corporation 
for  that  year.  These  provisions  also  determine  the  mode  of 
payment  of  such  corporate  indebtedness.319 


section  as  though  it  read,  'the  coun- 
cil shall  levy  a  sum  sufficient  to  pay 
the  interest  on  the  public  debt  to  be 
applied  for  no  other  purpose.' 
*  *  *  Where  a  city  has  a  discre- 
tion to  levy  a  tax  yet  where  that  tax 
is  required  for  the  payment  of  a 
public  debt,  the  city  may  be  required 
to  levy  a  tax  if  it  refuses  to  do  so." 
United  States  v.  Sterling,  2  Biss.  408, 
Fed.  Gas.  No.  16,388.  "The  duty  of 
paying  municipal  debts  is  as  obliga- 
tory upon  the  citizens  as  upon  the 
officers  of  the  city.  Indeed,  the  city 
authorities  are  only  the  agents  of 
the  citizens.  Besides,  what  right 
had  the  city  officers  to  expend  the  en- 
tire income  of  the  city  from  the  one 
per  cent,  tax  in  payment  of  current 
expenses,  and  leave  this  indebted- 
ness unprovided  for?  Why  did  they 
not  from  the  proceeds  of  this  one 
per  cent,  tax,  pay  the  bonds  and 
coupons  on  which  this  judgment  was 
rendered,  and  take  a  vote  as  to  the 
expediency  of  raising  a  further  tax 
to  defray  current  expenses?  The 
proceeds  of  this  one  per  cent,  tax 
are  not  especially  set  apart  and  dedi- 
cated to  the  payment  of  current  ex- 
penses. The  bonds  for  which  this 
judgment  was  rendered  had  been 
legally  issued,  and  the  city  authori- 
ties and  voters  were  all  chargeable 
with  notice  that  they  were  due  and 
ought  to  be  paid.  They  should  then 
have  levied  and  collected  an  ade- 
quate tax  in  apt  time  to  have  the 
money  ready  when  their  obligations 
matured,  and,  having  failed  to  do  so, 


are  guilty  of  a  breach  of  duty  which 
the  writ  of  mandamus  will  compel 
them  to  perform."  State  v.  McCril- 
lus,  4  Kan.  250.  Taxes  lawfully 
levied  and  collected  for  the  purpose 
of  paying  a  certain  debt  must  be 
applied  to  that  purpose.  See  also 
Berlin  Iron  Bridge  Co.  v.  City  of 
San  Antonio,  92  Tex.  388,  50  S.  W. 
408. 

sis  United  States  v.  City  of  New 
Orleans,  44  Fed.  590;  Siegel  v.  City 
of  New  Orleans  (C.  C.  A.)  81  Fed. 
522.  Surplus  revenues  for  paying 
the  indebtedness  or  current  expenses 
of  the  year  are  not  to  be  considered 
a  trust  fund  to  be  applied  in  a  re- 
duction or  payment  of  indebtedness 
contracted  or  assumed  during  pre- 
ceding years. 

McBean  v.  City  of  Fresno,  112  Cal. 
159,  44  Pac.  358.  Any  portion  of  the 
amount  payable  in  any  one  year  on 
a  contract  extending  over  a  series  of 
years  can  be  paid  from  the  amount 
of  taxes  levied  to  meet  such  pay- 
ment for  succeeding  years.  Webb 
City  &  C.  Waterworks  Co.  v.  City  of 
Carterville,  142  Mo.  101.  In  con- 
struing the  term  "current  expenses" 
to  ascertain  whether  a  city  has  ex- 
ceeded its  current  income  for  the 
year,  the  court  defines  these  as  in- 
cluding the  "reasonable  salary  allow- 
ed by  law  to  mayor,  council,  assess- 
or, marshal,  constable,  attorney  and 
a  reasonable  police  force."  McNeal 
v.  City  of  Waco,  89  Tex.  83,  33  S.  W. 
322;  Mason  v.  Purdy,  11  Wash.  591. 


§   167  TO  INCUR  INDEBTEDNESS.  365 

§  167.    Time  and  place  of  payment. 

The  ordinary  rule  applies  to  the  payment  of  indebtedness  of 
a  public  corporation  in  regard  to  the  manner  and  time  of  its 
payments.  The  current  and  running  expenses  of  the  government 
and  its  indebtedness  as  well  are  payable  at  the  office  of  the  public 
treasury,  unless  otherwise  specified,320  and  at  the  time  indicated 
by  the  evidence  of  indebtedness.321  If  no  time  is  set  for  the 
payment,  the  debt  is  payable  on  demand.  However,  if  the  obli- 
gation is  payable  from  a  certain  fund,  the  exhaustion  of  this  fund 
necessarily  postpones  a  payment.  Interest  can  be  collected  on 
indebtedness  payable  at  a  certain  time  but  not  then  paid  by 
default  of  the  debtor  whether  it  consists  of  the  principal  of  the 
debt  or  periodical  installments  of  interest.  Where  an  obligation 
has  no  fixed  time  for  its  payment  either  of  principal  or  interest, 
a  Louisiana  case  held  that  the  holder  of  such  an  obligation  was 
not  bound  by  an  advertisement  of  the  city  that  it  was  ready  to 
pay  such  indebtedness  and  that  he  could  collect  interest  after  the 
time  fixed  by  the  city  for  the  payment  of  this  obligation.322  In 
a  New  York  case  it  was  decided  that  a  public  debt  payable  at  any 
time  after  twenty  years  at  the  pleasure  of  the  legislature  was  not 
payable  until  after  legislative  action  providing  for  its  payment.323 
Interest  can  usually  be  collected  upon  deferred  obligations.324 

320  Calhoun  County  Sup'rs  v.  Gal-  until    the    fund    was    created;    and 
braith,  99  U.  S.  214;  Enfleld  v.  Jor-  further  that  such  order  would  not 
dan,  119  U.  S.  680;  Stewart  v.  Henry  draw  interest  before  the  fund  was 
County,  66  Fed.  127;  People  v.  Taze-  created   nor  until  it  had  been  pre- 
well  County,  22  111.  147;  Johnson  v.  sented  and  refused  payment.    Klaer 
Stark   County,    24    111.    75;    City   of  v.  Ridgway,  86  Pa.  529;   Allentown 
Pekin  v.  Reynolds,  31  111.  529;  Sher-  School   Dist.   v.   Derr,   115   Pa.   439. 
lock  v.  Village  of  Winnetka,  68  111.  Bonds  payable  "in  twenty-five  years 
530;    Evansville,    I.   &   C.    S.    L.   R.  after  date  with  interest"  and  giving 
Co.   v.   City   of   Evansville,   15   Ind.  the  option  to  the  holder  to  pay  if 
395;   Skinker  v.  Butler  County,  112  desired  after  twelve  years  from  date, 
Mo.    332;    Friend   v.   City   of   Pitts-  the  court  held  were  not  payable  be- 
burgh,  131  Pa.  305.  fore  twenty-five  years  except  at  the 

321  National   Bank  of  Republic  v.  election  of  the  holder. 

City  of  St.  Joseph,  31  Fed.  216;  Davis  322  Keith  v.  City  of  New  Orleans, 

v.  Yuba  County,  75  Cal.  452;  Brown  IQ  L^  Ann.  423. 

v.    Johnson    County    Com'rs,    1    G.  323  People  v.  Denniston,   23  N.  Y. 

Greene  (Iowa)  486.     A  county  order  247 

payable  out  of  a  special  fund  to  be 

324  Neosho  City  Water  Co.  v.  City 
created  in  the  future  held  not  due 


366  POWERS.  §  169 

§  168.    Enforcement  of  a  debt  by  action. 

A  right  possessed  by  the  owner  of  an  obligation  existing  as  an 
ordinary  contract  or  in  the  form  of  a  negotiable  bond  or  other 
evidence  of  indebtedness  can  usually  be  enforced  through  an 
action  or  other  proper  proceeding  against  the  debtor.  They 
are  governed  by  the  usual  rules  of  practice  enforcing  rights 
through  the  application  of  remedies  offered  by  a  state  and  will 
be  considered  later  in  this  work.326 

IV.    THE  POWER  OF  PUBLIC  COBPOBATIONS  TO  INCUB  INDEBTEDNESS  THROUGH 
THE  ISSUE  OF  NEGOTIABLE  SECURITIES. 

§  169.    Power  to  issue  negotiable  securities. 

(a)  Must  be  expressly  given.  In  preceding  sections  the  power 
of  the  public  corporation  to  incur  a  legal  indebtedness  as  evi- 
denced by  instruments  or  obligations  other  than  negotiable  bonds 
has  been  generally  considered.  The  subject  of  limitations,  how- 
ever, as  discussed,  has  dealt  with  restrictions  upon  the  power  to 
incur  indebtedness  of  all  forms  as  found  in  charter,  statutory  or 
constitutional  provisions.  It  is  impossible  in  considering  this 
subject  to  separate  those  restrictions  affecting  the  right  of  a 
public  corporation  to  incur  an  indebtedness  in  the  form  of  a 
negotiable  bond  and  those  involving  its  right  to  incur  that  in- 
debtedness evidenced  in  some  other  manner,  the  limitations 
usually  applying  in  general  terms  to  the  incurring  of  a  debt  or 
indebtedness,  without  specifying  its  form,  in  excess  of  a  certain 
amount,  either  a  percentage  of  its  taxable  property  or  a  fixed 
and  definite  gross  sum.  In  the  succeeding  sections  will  be  con- 

of  Neosho,  136  Mo.  498.  The  legal  at  a  discount  because  of  an  insuffi- 
rate  of  interest  allowed  in  this  case  ciency  of  funds  at  the  time  they 
on  accounts  after  demand.  South-  were  presented  for  payment,  can  not 
ern  R.  Co.  v.  City  Council  of  Greene-  hold  the  District  of  Columbia  liable 
ville,  49  S.  C.  449,  27  S.  E.  652.  The  for  the  loss.  Morton  v.  City  of  Ne- 
municipal  liability  for  interest  held  vada,  41  Fed.  582.  There  exists  no 
a  legal  incident  of  the  obligation  to  implied  promise  for  the  return  of 
return  money  illegally  collected  and  money  obtained  for  an  illegal  pur- 
retained,  pose  by  the  issue  of  bonds  in  viola- 
325  See  post  "Actions."  Donnelly  tion  of  law.  Harris  County  v. 
v.  District  of  Columbia,  119  U.  S.  Brady,  115  Ga.  767,  42  S.  E.  71; 
339,  7  Sup.  Ct.  276.  A  public  con-  Elliott  County  v.  Kitchen,  77  Ky. 
tractor  selling  auditor's  certificates  (14  Bush)  289. 


169 


ISSUANCE  OF  SECURITIES. 


367 


sidered  especially  the  power  of  a  public  corporation  to  incur 
indebtedness  by  the  issue  of  negotiable  bonds,328  which  it  is  held 
must  be  expressly  given  and  can  never  be  implied.  As  said 
by  a  writer  on  this  question:  "There  is  a  marked  legal  distinc- 
tion between  the  power  to  give  a  note  to  a  lender  for  the  amount 
of  money  borrowed  or  to  a  creditor  for  the  amount  due,  and  the 
power  to  issue  for  sale  in  open  market  a  bond  as  a  commercial 
security  with  immunity  in  the  hands  of  a  bona  fide  holder  for 
value,  from  equitable  defenses."327  This  rule  is  not  always  ap- 
plied in  the  incurring  of  other  indebtedness  by  a  public  cor- 
poration. Very  frequently  the  courts  have  decided  that  such  a 
corporation  may  have  the  implied  power  to  incur  an  obliga- 
tion under  certain  circumstances  especially  for  the  purpose  of 
maintaining  the  corporate  organization  and  paying  or  meeting 
ordinary  and  current  running  expenses  of  the  government,  an- 
ticipating a  current  levy  of  taxes  or  present  revenues.  The 
power  to  issue  bonds  is  usually  conferred  by  statutory328  or  char- 


326  See  comments  on  Merrill  v. 
Town  of  Monticello,  138  U.  S.  673, 
in  5  Harv.  Law  Rev.  157,  dealing 
with  the  subject  of  municipal  bonds. 
Kennard  v.  Cass  County,  3  Dill.  147, 
Fed.  Cas.  No.  7,697;  Francis  v.  How- 
ard County,  50  Fed.  44;  Dent  v. 
Cook,  45  Ga.  323;  Holliday  v.  Hilde- 
brandt,  97  Iowa,  177.  Refunding 
bonds  issued  in  excess  of  the  debt 
limit  prescribed  by  constitution  held 
void. 

Jacobson  r.  Gary,  51  Neb.  762. 
Money  raised  for  the  purpose  of  pay- 
ing bonds  lost  through  insolvency 
of  bank.  Loss  held  not  to  fall  upon 
bondholder,  and  tax  levied  upon 
property  of  school  district  to  pay 
balance  due  on  such  bonds  valid. 

Livingston  v.  School  Dist.  No.  7, 
9  S.  D.  345.  Bonds  issued  in  a 
manner  unauthorized  by  special  act, 
void  in  hands  of  innocent  purchas- 
ers. 

827  Smith,  Mun.  Corp.  §  955. 

328  Scotland  County  v.  Hill,  132 
U.  S.  107;  Francis  v.  Howard  Coun- 


ty, 50  Fed.  44;  Washington  Tp.  v. 
Coler  (C.  C.  A.)  51  Fed.  362;  Chil- 
ton  v.  Town  of  Gratton,  82  Fed.  873; 
Lehman  v.  City  of  San  Diego  (C. 
C.  A.)  83  Fed.  669.  The  power  con- 
ferred to  "borrow  money  upon  the 
faith  and  credit  of  the  city,"  the 
court  held  in  this  case  did  not  im- 
ply a  power  to  issue  negotiable 
bonds. 

Waite  v.  City  of  Santa  Cruz,  89 
Fed.  619 ;  German  Ins.  Co.  v.  City  of 
Manning,  95  Fed.  597.  The  court 
held  here  that  loans  negotiated  un- 
der authority  of  law  in  anticipation 
of  uncollected  revenue  could  not  be 
subsequently  refunded  by  the  issu- 
ing of  negotiable  bonds.  Corning  v. 
Meade  County  Com'rs  (C.  C.  A.)  102 
Fed.  57;  City  of  Pierre  v.  Duns- 
comb,  106  Fed.  611;  People  v.  Burr, 
13  Cal.  343,  construing  act  of  April 
20,  1858,  as  authorizing  the  issue  of 
bonds  by  the  city  and  county  of  San 
Francisco. 

Sawyer  v.  Colgan  (Cal.)  33  Pac. 
911;  Dougherty  County  v.  Boyt,  71 


368 


POWERS. 


§  169 


ter829    provisions    limited    by    constitutional    measures.830     The 
power  thus  granted  must  in  its  exercise  be  strictly  followed, 


Ga.  484;  Neel  v.  Bartow  County 
Com'rs,  94  Ga.  216;  Lussem  v.  San- 
itary Dist.  of  Chicago,  192  111.  404, 
61  N.  E.  544.  Bonds  issued  for  "cor- 
porate purposes"  in  this  case  by  the 
Sanitary  Dist.  of  Chicago  were  held 
sufficiently  definite  as  to  purpose. 

Young  v.  Tipton  County  Com'rs, 
137  Ind.  323;  Crittenden  County  Ct. 
v.  Shanks,  88  Ky.  475,  4  L.  R.  A. 
265;  State  v.  Board  of  Liquidation, 
27  La.  Ann.  577;  McCormick  v.  Vil- 
lage of  West  Duluth,  47  Minn.  272, 
construing  Gen.  Laws  Minn.  1891, 
c.  146,  authorizing  the  issuance  of 
improvement  bonds  by  villages  of 
over  3,000  inhabitants. 

Mittag  v.  Borough  of  Park  Ridge, 
61  N.  J.  Law,  151,  38  Atl.  750;  State 
v.  Holladay,  72  Mo.  499;  State  v. 
Babcock,  25  Neb.  709;  Colburn  v. 
Chattanooga  W.  R.  Co.,  94  Tenn.  43; 
Robertson  v.  Breedlove,  61  Tex.  316; 
Nolan  County  v.  State,  83  Tex.  182; 
Ball  v.  Presidio  County,  88  Tex.  60, 
29  S.  W.  1042;  Conklin  v.  City  of 
El  Paso  (Tex.  Civ.  App.)  44  S.  W. 
879;  Hardeman  County  v.  Foard 
County,  19  Tex.  Civ.  App.  212,  47 
S.  W.  30,  536.  The  court  held  that 
bonds  issued  in  excess  of  the  stat- 
utory limit  were  void  only  as  to 
the  excess. 

Darke  v.  Salt  Lake  County  Com'rs, 
15  Utah,  467,  49  Pac.  257.  See,  also, 
Post  v.  Supervisors,  105  U.  S.  667; 
Lewis  v.  City  of  Shreveport,  3  Woods, 
205,  Fed.  Gas.  No.  8,331;  Clark  v. 
City  of  Des  Moines,  19  Iowa,  199; 
State  v.  Moore,  45  Neb.  12;  Bunch's 
Ex'r  v.  Fluvanna  County,  86  Va. 
452,  10  S.  E.  532;  Luling  v.  City  of 
Racine,  1  Biss.  314,  Fed.  Cas.  No. 
8,603. 

329  Hitchcock  &  Co.  v.  City  of  Gal- 


veston,  2  Woods,  272,  Fed.  Cas.  No. 
6,532;  Milner's  Adm'r  v.  City  of  Pen- 
sacola,  2  Woods,  632,  Fed.  Cas!  No. 
9,619;  Judson  v.  Plattsburg,  3  Dill. 
181,  Fed.  Cas.  No.  7,570;  City  of 
Brenham  v.  German-American  Bank, 
144  U.  S.  173,  reversing  35  Fed.  185. 
The  authority  given  to  issue  bonds 
redeemable  five  years  from  date  con- 
fers no  authority  to  issue  them  re- 
deemable after  the  expiration  of  ten 
years. 

City  of  Evansville  v.  Woodbury 
(C.  C.  A.)  60  Fed.  718;  Lehman  v. 
City  of  San  Diego,  73  Fed.  105;  City 
of  Huron  v.  Second  Ward  Sav.  Bank, 
86  Fed.  272,  49  L.  R.  A.  534.  Where 
a  charter  gives  discretionary  pow- 
ers for  the  appropriation  of  money 
and  the  levy  of  taxes  to  pay  indebt- 
edness, after  the  discretion  has  been 
exercised  and  bonds  issued  to  pay 
a  certain  indebtedness,  sold  and 
bought  by  bona  fide  purchasers,  it 
is  then  too  late  for  the  courts  to 
review  this  discretion. 

City  of  Griffin  v.  Inman,  57  Ga. 
370.  The  power  given  in  the  char- 
ter of  a  city  to  borrow  money,  sub- 
scribe for  stock,  etc.,  is  sufficiently 
broad  to  imply  the  power  to  em- 
ploy the  usual  and  appropriate 
means  for  engaging  municipal  credit, 
namely,  the  issue  and  sale  of  cor- 
porate bonds  bearing  interest  and 
negotiable  by  delivery. 

Heilbron  v.  City  of  Cuthbert.  96 
Ga.  312.  In  the  case  of  Law  v.  Peo- 
ple, 87  111.  385,  the  court  said:  "The 
law  is,  and  all  persons  are  pre- 
sumed to  know  it,  that  municipal 
bodies  can  only  exercise  such  pow- 
ers as  are  conferred  upon  them  by 
their  charters,  and  all  persons  deal- 
ing with  them  must  see  that  the 


§  169 


ISSUANCE  OF  SECURITIES. 


369 


assuming  the  existence  of  all  other  conditions  necessary  to  make 
it  legal,  in  order  to  support  an  issue  of  bonds  of  this  character, 
and  if  the  right  to  issue  bonds  for  a  special  purpose  is  given,  in 
an  action  upon  them,  the  authority  relied  on  to  support  their 


body  has  power  to  perform  the  pro- 
posed act.  Such  corporations  are 
created  for  governmental  and  not  for 
commercial  purposes.  Hence,  pow- 
er to  borrow  money  or  create  in- 
debtedness is  not  an  incident  to 
such  local  governments  and  the  pow- 
er cannot  be  exercised  unless  it  is 
conferred  by  their  charter  and  no 
one  has  the  right  to  presume  the 
existence  of  such  a  power  and  per- 
sons proposing  to  loan  money  to 
these  bodies  must  see  that  the  pow- 
er exists." 

Town  of  Windsor  v.  Hallett,  97 
111.  204;  Wilson  v.  City  of  Shreve- 
port,  29  La.  Ann.  673.  The  power 
to  give  bonds,  necessary  in  the  con- 
duct of  litigation,  does  not  include 
the  power  to  issue  bonds  for  the  pur- 
pose of  raising  money. 

Naegely  v.  City  of  Saginaw,  101 
Mich.  532.  The  issue  of  a  less  num- 
ber of  bonds  than  authorized  by  law 
does  not  invalidate  those  issued. 

City  of  Cumberland  v.  Magruder, 
34  Md.  381;  Ketchum  v.  City  of  Buf- 
falo, 14  N.  Y.  (4  Kern.)  356;  Peo- 
ple v.  Livingston  County  Sup'rs,  43 
Barb.  (N.  Y.)  298;  Town  of  Kla- 
math  Falls  v.  Sachs,  35  Or.  325,  57 
Pac.  329;  City  of  Williamsport  v. 
Com.,  84  Pa.  487;  City  of  Memphis 
v.  Bethel  (Tenn.)  17  S.  W.  191; 
Wilson  v.  Florence,  40  S.  C.  290; 
Winston  v.  City  of  Ft.  Worth  (Tex. 
Civ.  App.)  47  S.  W.  740;  City  of 
Radford  v.  Heth,  100  Va.  16,  40  S. 
E.  99;  State  v.  City  of  Madison,  7 
Wis.  688. 

sac  Read  v.  City  of  Plattsmouth, 
107  U.  S.  568.  The  court  held  the 


provision  of  the  Neb.  Const,  forbid- 
ding the  passage  of  a  special  act 
conferring  corporate  powers  not  vio- 
lated by  an  act  legalizing  municipal 
bonds  issued  without  authority. 
Board  of  Liquidation  of  New  Or- 
leans v.  State,  179  U.  S.  622. 

In  City  of  Litchfleld  v.  Ballou, 
114  U.  S.  190,  where  it  was  sought 
to  have  money,  received  on  bonds 
void  because  in  excess  of  constitu- 
tional limitation  and  used  for  con- 
struction of  waterworks,  made  a  lien 
upon  said  works,  Justice  Miller 
said:  "The  language  of  the  consti- 
tution is  that  'no  city  shall  be  al- 
lowed to  become  indebted  in  any 
manner  or  for  any  purpose  to  an 
amount,  *  *  *  exceeding  five  per 
centum  on  the  value  of  its  taxable 
property.'  It  shall  not  become  in- 
debted; shall  not  incur  any  pecuni- 
ary liability;  it  shall  not  do  this 
in  any  manner,  neither  by  bonds  nor 
notes,  nor  by  express  or  implied 
promises;  nor  shall  it  be  done  for 
any  purpose,  no  matter  how  urgent, 
how  useful,  how  unanimous  the  wish 
*  *  *  the  prohibition  is  as  ef- 
fectual against  the  implied  as  the 
express  promise  and  is  as  binding 
in  a  court  of  chancery  as  a  court  of 
law." 

John  Hancock  Mut.  Life  Ins.  Co. 
v.  City  of  Huron,  80  Fed.  652;  Brat- 
tleboro  Sav.  Bank  v.  Trustees  of 
Hardy  Tp.,  98  Fed.  524.  A  town- 
ship in  Ohio  is  not  a  corporation 
within  the  meaning  of  that  clause 
of  the  Constitution  providing  that 
the  legislature  "shall  pass  no  spe- 
cial act  conferring  corporate  pow- 


Abb.  Corp.— 24. 


370 


POWERS. 


g   169 


validity  must  be  specially  pleaded.831  The  courts  adhere  so 
strictly  to  the  rule  that  the  power  to  issue  negotiable  bonds 
must  be  expressly  given,  that  every  person  dealing  with  a  cor- 
poration, it  has  been  held  many  times,  must  at  his  peril  take 
notice  of  the  authority  of  the  corporation  and  its  power  and 
the  terms  of  the  law  by  which  the  power  is  supposed  to  be 
granted,  even  though  such  person  be  a  bona  fide  holder  for  value 
of  such  securities.332  In  considering  further  this  rule  as  to  the 


ers"  and  therefore  an  act  authoriz- 
ing a  township  to  issue  bonds  is  not 
invalid. 

City  of  Los  Angeles  v.  Hance,  122 
Gal.  77,  54  Pac.  387;  Bannock  Coun- 
ty v.  C.  Bunting  &  Co.,  4  Idaho,  156, 
37  Pac.  277;  Cairo  &  St.  L.  R.  Co. 
v.  City  of  Sparta,  77  111.  505.  The 
legislature  cannot  compel  a  munici- 
pal corporation  to  incur  a  debt  pro- 
viding for  the  issue  of  bonds  for 
local  purposes  against  its  wishes. 
Clegg  v.  Richardson  County  School 
Dist,  8  Neb.  178,  construing  Neb. 
Act  1875,  p.  281,  as  limited  by  Neb. 
Const,  art.  8,  §  1.  Dundy  v.  Rich- 
ardson County  Com'rs,  8  Neb.  508, 
construing  Neb.  Act  1873,  p.  80,  as 
limited  by  the  same  constitutional 
provision  cited  in  the  preceding  case. 

Borough  of  Rainsburg  v.  Ryan, 
127  Pa.  74,  4  'L.  R.  A.  336.  When 
bonds  are  void  because  of  failure  to 
comply  with  some  provision  of  the 
constitution  and  the  money  received 
therefor  has  been  applied  to  an  ex- 
isting valid  indebtedness,  thus  mere- 
ly exchanging  one  creditor  for  an- 
other, the  borough  is  liable  for  the 
money  and  recovery  may  be  had 
against  it  upon  a  simple  contract 
on  a  count  for  money  loaned. 

Cleveland  v.  City  Council  of  Spar- 
tanburg,  54  S.  C.  83,  31  S.  E.  871; 
Farquharson  v.  Yeargin,  24  Wash. 
549,  64  Pac.  717.  The  passage  of 
an  act  giving  a  county  the  right  to 


issue  bonds  under  constitutional  pro- 
visions held  a  legislative  determina- 
tion of  the  sufficiency  of  its  popula- 
tion. 

331  Kennard  v.  Cass  County,  3  Dill. 
147,  Fed.  Cas.  No.  7,697;  Thayer  v. 
Montgomery  County,  3  Dill.  389,  Fed. 
Cas.  No.  13,870;   Hopper  v.  Town  of 
Covington,  118   U.    S.  148.     In  this 
case  Mr.   Justice  Gray  said:     "The 
town  having  but  a  limited  authority 
to  issue  bonds  for  certain  purposes, 
it  is  not  enough  for  the  plaintiff  to 
aver  in  general  terms  that  the  town 
was  authorized  to  issue  the  bonds  in 
suit,   but   he   must    state   the    facts 
which  bring  the  case  within  the  spe- 
cial authority." 

332  Nesbit   v.    Riverside   Independ- 
ent School-Dist,  144  U.   S.   610,  af- 
firming 25  Fed.  635;   National  Bank 
of  Republic  v.   City  of   St.   Joseph, 
31  Fed.  216;  United  States  v.  Town 
of  Cicero,  41   Fed.   83.     Recitals   in 
municipal   bonds   are   binding    only 
in  respect  to  matters  of  fact  not  in 
respect  to  matters  of  law  of  which 
all  are  bound  to  take  cognizance. 

National  Bank  of  Commerce  v. 
Town  of  Granada,  54  Fed.  100,  af- 
firming 48  Fed.  278.  In  Travelers' 
Ins.  Co.  v.  Township  of  Oswego,  55 
Fed.  361,  it  was  held  that  the  pur- 
chasers of  municipal  bonds  are  con- 
clusively presumed  to  know  the  law 
of  the  state,  both  constitutional  and 
statutory,  bearing  upon  the  power 


§169 


ISSUANCE  OF  SECURITIES. 


371 


power  to  issue  negotiable  bonds  we  have  a  difference  between  a 
public  and  a  private  corporation.  The  power  of  a  private  cor- 
poration to  issue  negotiable  instruments  or  commercial  paper  is 
implied  so  long  as  the  proceeds  are  to  be  used  in  the  carrying 
on  of  its  legitimate  business.  Borrowing  money  and  issuing 
bonds,  notes  and  bills  as  a  rule  are  acts  germane  to  the  carrying 
on  of  the  business  of  a  private  corporation.  This  is  not  true  of 
public  corporations.  The  ends  for  which  they  are  organized  or 
created  are  essentially  different  and  in  a  broad  sense  the  power  to 
issue  bonds  for  moneys  borrowed  is  not  included  among  the  ordi- 
nary powers  of  such  organizations.333  They  are  governmental 
agents  or  bodies  of  limited  powers  and  the  rule  of  strict  construc- 


of  the  municipality  to  issue  the 
bonds,  and  the  municipality  cannot 
be  estopped  by  recitals  in  the  bonds 
to  deny  even  as  against  bona 
fide  purchasers,  the  power  of  com- 
missioners appointed  by  the  legis- 
lature to  issue  them. 

Rathbone  v.  Kiowa  County  Com'rs, 
83  Fed.  125,  reversing  73  Fed.  395; 
Dunbar  v.  Canyon  County  Com'rs, 
5  Idaho,  407,  49  Pac.  409;  Lippincott 
v.  Town  of  Pana,  92  111.  24.  Where 
there  is  an  entire  absence  of  power 
as  distinguished  from  a  defective 
execution  of  power,  the  rentals  of 
those  invested  with  the  ministerial 
duty  of  issuing  municipal  bonds  will 
afford  no  protection  to  even  a  bona 
fide  holder  for  value  of  such  bonds 
and  such  holders  are  bound  to  take 
notice  of  the  want  of  authority  to 
issue  them. 

Wilson  v.  City  of  Shreveport,  29 
La.  Ann.  673;  Goodnow  v.  Ramsey 
County  Com'rs,  11  Minn. 31  (Gil.  12). 
The  power  to  issue  county  orders 
grants  no  authority  to  issue  bonds 
payable  at  a  future  day  with  inter- 
est coupons  attached. 

Ruohs  v.  Town  of  Athens,  91  Tenn. 
20,  18  S.  W.  400.  The  fact  that  a 
town  has  no  valid  organization,  the 


court  held  here  could  be  urged  as  a 
successful  defense  in  an  action 
brought  on  its  bonds. 

Bona  fide  purchasers  must  take 
notice  of  power  to  issue.  Thomas 
v.  Town  of  Lansing,  14  Fed.  618; 
Coffin  v.  Kearney  County  Com'rs,  57 
Fed.  137;  Risley  v.  Village  of  How- 
ell,  57  Fed.  544.  A  mere  recital  in 
a  bond  of  the  act  of  the  legislature 
conferring  authority  is  notice  to  ev- 
ery purchaser  to  see  at  his  own 
peril  that  the  statute  has  been  com- 
plied with. 

Quaker  City  Nat.  Bank  v.  Nolan 
County,  66  Fed.  137;  Town  of  South 
Ottawa  v.  Perkins.  9*  TT.  S  ?60; 
McClure  v.  Township  of  Oxford,  94 
U.  S.  429;  Inhabitants  of  Pompton 
v.  Cooper  Union,  101  U.  S.  196;  City 
of  Aurora  v.  West,  22  Ind.  89;  Gad- 
dis  v.  Richland  County,  92  111.  119; 
Silliman  v.  Fredericksburg,  27  Grat. 
(Va.)  119. 

333  City  of  Evansville  v.  Wood- 
bury  (C.  C.  A.)  60  Fed.  718;  State  v. 
City  of  Newark,  54  N.  J.  Law,  62,  23 
Atl.  129.  The  implied  right  of  mu- 
nicipal corporations  to  give  sealed 
evidence  of  indebtedness  for  debts 
legally  incurred  is  unquestionable. 
It  is  only  when  these  evidences  of 


372  POWERS.  §  170 

tion  withholds  a  right  or  denies  a  power  when  it  does  not  clearly 
exist  or  is  not  expressly  given.  The  power  to  borrow  money  and 
to  issue  bonds  by  the  state  or  any  of  its  political  subdivisions  is 
a  legislative  one.  It  can  be  exercised  by  the  proper  legislative 
body  of  the  state,  or  if  that  body  so  elects,  delegated  in  its  per- 
formance to  such  subordinate  agencies  as  it  may  select,  but  lim- 
ited by  constitutional  provisions  if  such  exist.334 

(b)  De  facto  corporate  existence  necessary.  A  public  corpo- 
ration must  have,  at  least,  a  de  facto  existence  that  negotiable 
bonds  issued  by  it  under  constitutional  or  statutory  authority, 
be  valid.  Bonds  issued  by  corporations  organized  under  a  law 
afterwards  held  void  or  unconstitutional  are  not  regarded  as  legal 
outstanding  obligations  because  their  maker  as  an  artificial  per- 
son could  not  and  therefore  did  not  exist  ;  this  rule,  however,  does 
not  necessarily  invalidate,  in  the  hands  of  bona  fide  purchasers, 
bonds  issued  for  a  public  purpose.  Such  obligations  may  be  en- 
forceable against  legal  organizations  embracing  the  territory  and 
people  voting  upon  or  authorizing  the  issue  of  the  bonds  orig- 
inally.336 

§  170.    The  power  to  issue  must  be  expressly  given  ;  it  cannot  be 
implied. 

The  cases  are  uniform  in  holding  that  a  public  corporation' 
does  not  possess  as  one  of  its  incidental  or  implied  powers336  the 


are  to  be  rendered  commercial-  No.  25  v.  State,  29  Kan.  57;    Riley 

ly    negotiable    that   express   author-  v.   Garfield  Tp.,  54  Kan.  463;    Mor- 

ity,  to  that  end,  must  be  granted.  ton  v.  Carlin,  51  Neb.  202,  70  N.  W. 

City  of  Williamsport  v.  Com.,  84  966. 

Pa.  487.     This  case  also  holds  that        sse  Simonton,    Mun.    Bonds,    §    14. 

where  a  debt  has  been  lawfully  ere-  "Almost  all  of  the  elementary  writ- 

ated,  a   public  corporation   has   the  ers  are  of  the  opinion  that  the  prac- 

implied  power  unless  restrained  by  tice  of  issuing  negotiable  paper  by 

some  constitutional  provision  to  is-  a  municipal  corporation,  unless  pow- 

sue     the     proper     acknowledgment  er  to  borrow  be  expressly  conferred, 

whether   such    be    a    bond,    bill    or  is  wrong,  and  condemn  the  practice 

note.      See,    also,    Com.    v.    City    of  in     vigorous     language     and     some 

Pittsburgh,  88  Pa.  66.  claim    that    a    municipal     corpora- 

334  Seward  County  Com'rs  v.  Aetna  tion    cannot    issue    its     negotiable 

Life   Ins.    Co.    (C.    C.    A.)    90    Fed.  paper    without    legislative    author- 

222.  ity    and    that    where    the    corpora- 

sss  Oswego    Tp.    v.    Anderson,    44  tion  is  authorized  to  execute  some 

Jan.  214,  24  Pac.  486;   School  Dist.  powers    requiring   a   large   expenrH- 


§  170 


ISSUANCE  OF  SECURITIES. 


373 


ture  of  money,  while  they  ad- 
mit that  under  such  circumstances 
the  corporation  may  issue  its  evi- 
dence of  debt  to  its  creditors  who 
may  be  engaged  to  do  the  public 
work,  deny  that  in  order  to  obtain 
the  money  therefor,  it  has  the  im- 
plied authority  to  issue  negotiable 
paper,  which  will  be  free  from  equi- 
ties in  the  hands  of  third  persons, 
or  which  it  may  sell  in  order  to  ob- 
tain the  means  to  do  the  public  work. 
While  it  must  be  conceded  that  the 
above  views  are  wiser  and  safer 
than  the  opposite  doctrine  and  if 
followed  by  all  the  state  courts, 
would  doubtless,  to  a  very  great  ex- 
tent, act  as  a  check  upon  municipal 
extravagance  and  compel  them  to 
a  'pay  as  you  go'  policy  which  would 
make  them  careful  in  their  expend- 
itures and  prevent  the  incurring  of 
debt  to  be  paid  by  future  genera- 
tions yet  it  must  be  confessed  that 
the  doctrine  of  most  of  the  state 
courts  is  favorable  to  the  opposite 
view,  while  the  Federal  courts  are 
more  conservative  and  adopt  the 
view  that  the  power  to  issue  nego- 
tiable instruments  by  municipal  cor- 
porations must  be  expressed,  and  is 
not  to  be  implied  and  if  issued  un- 
der an  implied  authority  are  void 
in  all  hands."  Citing  Jones,  R. 
Secur.  §  283;  Burrough,  Pub.  Secur. 
p.  185. 

But  Daniels  in  his  work  on  Nego- 
tiable Instruments,  §  1531,  says: 
"When  the  power  to  borrow  the 
money  is  clear  it  necessarily  in- 
volves in  its  exercise  the  execution 
of  a  security  for  its  repayment;  and 
negotiable  coupon  bonds  being  the 
common  and  most  acceptable  form 
of  municipal  securities  when  given 
for  money  legitimately  borrowed 
would,  undoubtedly,  be  valid." 

Gelpcke  v.  City  of  Dubuque,  68  U. 
S.  (1  Wall.)  220;  Police  Jury  v.  Brit- 


ton,  82  U.  S.  (15  Wall.)  566.  The 
court  said  that  public  officials  pos- 
sessing all  the  necessary  authority 
to  levy  taxes  and  incur  ordinary 
expenses  would  still  possess  no  im- 
plied power  to  issue  negotiable  se- 
curities payable  in  the  future  of 
such  a  character  as  to  be  unimpeach- 
able in  the  hands  of  bona  fide  hold- 
ers for  the  purpose  of  raising  money 
or  funding  previous  indebtedness. 

City  of  Nashville  v.  Ray,  86  U.  S. 
(19  Wall.)  468.  "This  charge  was 
excepted  to  in  all  its  parts,  and  upon 
these  exceptions  the  case  was  argued 
before  this  court  in  reference  to  the 
following  points:  1.  Has  a  munici- 
pal corporation  the  power,  without 
express  legislative  authority,  to  bor- 
row money  for  any  of  the  purposes 
of  its  incorporation?  2.  Has  it  the 
power,  without  express  legislative 
authority,  to  issue  its  paper  clothed 
with  all  the  attributes  of  negotia- 
bility? 3.  Conceding  the  affirmative 
of  these  two  queries,  can  the  execu- 
tive officers  of  a  municipal  corpora- 
tion borrow  money  or  issue  negoti- 
able securities  for  the  corporation, 
so  as  to  bind  it  without  'ordinance'; 
that  is  to  say,  without  express  au- 
thority from  the  legislative  depart- 
ment of  the  corporate  government 
in  its  collective  official  capacity 
*  *  * 

"A  municipal  corporation  is  a  sub- 
ordinate branch  of  the  domestic 
government  of  a  State.  It  is  insti- 
tuted for  public  purposes  only;  and 
has  none  of  the  peculiar  qualities 
and  characteristics  of  a  trading  cor- 
poration, instituted  for  purposes  of 
private  gain,  except  that  of  acting 
in  a  corporate  capacity.  Its  objects, 
its  responsibilities,  and  its  powers, 
are  different.  As  a  local  govern- 
mental institution,  it  exists  for  the 
benefit  of  the  people  within  its  cor- 


374 


POWERS. 


§  170 


porate  limits.  The  legislature  in* 
vests  it  with  such  powers  as  it 
deems  adequate  to  the  ends  to  be  ac- 
complished. The  power  of  taxation 
is  usually  conferred  for  the  purpose 
of  enabling  it  to  raise  the  necessary 
funds  to  carry  on  the  city  govern- 
ment and  to  make  such  public  im- 
provements as  it  is  authorized  to 
make.  As  this  is  a  power  which 
immediately  affects  the  entire  con- 
stituency of  the  municipal  body 
which  exercises  it,  no  evil  conse- 
quences are  likely  to  ensue  from  its 
being  conferred;  although  it  is  not 
unusual  to  affix  limits  to  its  exer- 
cise for  any  single  year.  The  power 
to  borrow  money  is  different.  When 
this  is  exercised  the  citizens  are  im- 
mediately affected  only  by  the  bene- 
fit arising  from  the  loan;  its  burden 
is  not  felt  till  afterwards.  Such  a 
power  does  not  belong  to  a  munici- 
pal corporation  as  an  incident  of  its 
creation.  To  be  possessed  it  must 
be  conferred  by  legislation,  either 
express  or  implied.  It  does  not  be- 
long, as  a  mere  matter  of  course,  to 
local  governments  to  raise  loans. 
Such  governments  are  not  created 
for  any  such  purpose.  Their  pow- 
ers are  prescribed  by  their  charters, 
and  those  charters  provide  the 
means  for  exercising  the  powers; 
and  the  creation  of  specific  means 
excludes  others.  Indebtedness  may 
be  incurred  to  a  limited  extent  in 
carrying  out  the  objects  of  the  in- 
corporation. Evidences  of  such  in- 
debtedness may  be  given  to  the  pub- 
lic creditors.  But  they  must  look 
to  and  rely  on  the  legitimate  mode 
of  raising  the  funds  for  its  payment. 
That  mode  is  taxation. 

"Our  system  of  local  and  munici- 
pal government  is  copied,  in  its  gen- 
eral features,  from  that  of  England. 
No  evidence  is  adduced  to  show  that 


the  practice  of  borrowing  money  has 
been  used  by  the  cities  and  towns 
of  that  country  without  an  Act  of 
Parliament  authorizing  it.  We  be- 
lieve no  such  practice  has  ever  ob- 
tained. 

"Much  less  can  any  precedent  be 
found  (except  of  modern  date  and 
in  this  country)  for  the  issue,  by 
local  civil  authorities,  of  promissory 
notes,  bills  of  exchange,  and  other 
commercial  paper.  At  a  period  with- 
in the  memory  of  man,  the  proposal 
of  such  a  thing  would  have  been, 
met  with  astonishment.  The  mak- 
ing of  such  paper  was  originally  con- 
fined to  merchants.  But  its  great 
convenience  was  the  means  of  ex- 
tending its  use,  first  to  all  individu- 
als and  afterwards  to  private  cor- 
porations having  occasion  to  make 
promises  to  pay  money.  Being  only 
themselves  responsible  for  the  paper 
they  issue,  no  evil  consequences  can 
follow  sufficient  to  counterbalance 
the  conveniences  and  benefits  de- 
rived from  its  use.  They  know  its 
immunity,  in  the  hands  of  a  bona 
fide  holder,  from  all  defenses  and 
equities.  Knowing  this,  if  they 
choose  to  issue  it,  no  one  is  in- 
jured but  themselves.  But  if  city 
and  town  officials  should  have  the 
power  thus  to  bind  their  constitu- 
encies, it  is  easy  to  see  what  abuses 
might  and  probably  would  ensue. 
We  know  from  experience  what 
abuses  have  been  practiced  where 
the  power  has  been  conferred. 
Fraudulent  issues,  speculations  and 
embezzlements,  and  the  accumula- 
tion of  vast  amounts  of  indebted- 
ness, without  any  corresponding 
public  benefit,  have  been  rendered 
easy  and  secure  from  merited  pun- 
ishment. The  purpose  and  object  of 
a  municipal  corporation  do  not  or- 
dinarily require  the  exercise  of  any 


S  170 


ISSUANCE  OF  SECURITIES. 


375 


such  power.  They  are  not  trading 
corporations  and  ought  not  to  be- 
come such.  They  are  invested  with 
public  trusts  of  a  governmental  and 
administrative  character;  they  are 
the  local  governments  of  the  people, 
established  by  t^em  as  their  repre- 
sentatives in  the  management  and 
administration  of  municipal  affairs 
affecting  the  peace,  good  order  and 
general  well  being  of  the  community 
as  a  political  society  and  district; 
and  invested  with  power  by  taxa- 
tion to  raise  the  revenues  necessary 
for  those  purposes.  The  idea  that 
they  have  the  incidental  power  to 
issue  an  unlimited  amount  of  obliga- 
tions of  such  a  character  as  to  be 
irretrievably  binding  on  the  people, 
without  a  shadow  of  consideration 
in  return,  is  the  growth  of  a  modern 
misconception  of  their  true  object 
and  character.  If  in  the  exercise  of 
their  important  trusts  the  power  to 
borrow  money  and  to  issue  bonds 
or  other  commercial  securities  is 
needed,  the  legislature  can  easily 
confer  it  under  the  proper  limita- 
tions and  restraints,  and  with  prop- 
er provisions  for  future  repayment. 
Without  such  authority  it  cannot  be 
legally  exercised.  It  is  too  danger- 
ous a  power  to  be  exercised  by  all 
municipal  bodies  indiscriminately, 
managed  as  they  are  by  persons 
whose  individual  responsibility  is 
not  at  stake. 

"Vouchers  for  money  due,  certifi- 
cates of  indebtedness  for  services 
rendered  or  for  property  furnished 
for  the  uses  of  the  city,  orders  or 
drafts  drawn  by  one  city  officer  upon 
another,  or  any  other  device  of  the 
kind,  used  for  liquidating  the 
amounts  legitimately  due  to  public 
creditors,  are  of  course  necessary  in- 
struments for  carrying  on  the  ma- 
chinery of  municipal  administration, 


and  for  anticipating  the  collection  o' 
taxes.  But  to  invest  sucn  docu- 
ments with  the  character  and  inci- 
dents of  commercial  paper,  so  as  to 
render  them  in  the  hands  of  bona 
fide  holders  absolute  obligations  to 
pay,  however  irregularly  or  fraud- 
ulently issued,  is  an  abuse  of  their 
true  character  and  purpose.  It  has 
the  effect  of  converting  a  municipal 
organization  into  a  trading  com- 
pany, and  puts  it  in  the  power  of 
corrupt  officials  to  involve  a  polit- 
ical community  in  irretrievable  bank- 
ruptcy. No  such  power  ought  to 
exist,  and  in  our  opinion  no  such 
power  does  legally  exist,  unless  con- 
ferred by  legislative  enactment, 
either  express  or  clearly  implied." 

Comanjhe  County  v.  Lewis,  133  U. 
S.  198.  Here  the  authority  was  giv- 
en to  borrow  upon  the  credit  of  the 
county  a  oum  sufficient  for  the  erec- 
tion of  county  buildings  and  the 
court  held  that  the  authority  to  bor- 
row this  money  carried  with  it  the 
power  to  issue  negotiable  bonds  as 
evidences  of  such  indebtedness. 

City  of  Brenham  v.  German-Amer- 
ican Bank,  144  U.  S.  173,  holds,  Jus- 
tices Harlan,  Brewer  and  Brown  dis- 
senting, that  the  charter  power  of 
the  city  of  Brenham,  Texas,  to  bor- 
row money  "for  general  purposes 
no*  exceeding  $15,000  on  the  credit 
of  such  city"  carried  with  it  no  pow- 
er to  issue  and  sell  negotiable  bonds. 
Overruling  Rogers  v.  City  of  Bur- 
lington, 70  U.  S.  (3  Wall.)  654,  and 
Mitchell  v.  City  of  Burlington,  71  U. 
S.  (4  Wall.)  270.  The  court  said: 
"That  in  exercising  its  power  to  bor- 
row, not  exceeding  $15,000  on  its 
credit,  for  general  purposes,  the  city 
could  give  to  the  lender  as  a  vouch- 
er for  the  repayment  of  the  money, 
evidence  of  indebtedness  in  the  shape 
of  non-negotiable  paper  is  quite 


376 


POWERS. 


170 


power  to  issue  evidences  of  indebtedness  in  the  form  of  negotia- 
ble bonds.     It  must  be  expressly  given  or  it  does  not  exist.337 


clear,  but  that  does  not  cover  the 
right  to  issue  negotiable  paper  or 
bonds  unimpeachable  in  the  hands 
of  a  bona  fide  holder.  *  *  *  It 
is  easy  for  the  legislature  to  confer 
upon  a  municipality  when  it  is  con- 
stitutional to  do  so  the  power  to 
issue  negotiable  bonds  and  under 
the  well  settled  rule  that  any  doubt 
as  to  the  existence  of  such  power 
ought  to  be  determined  against  its 
existence  it  ought  not  to  be  held  to 
exist  in  the  present  case." 

Milner  v.  City  of  Pensacola,  2 
Woods,  632,  Fed.  Gas.  No.  9,619; 
Wilson  v.  Neal,  23  Fed.  129;  Hill 
v.  City  of  Memphis,  23  Fed.  872. 

City  of  Griffin  v.  Inman,  57  Ga. 
370.  The  charter  power  in  this  case 
given  to  "borrow  money  and  im- 
pose future  taxes"  held  to  include 
the  power  to  issue  negotiable  bonds 
as  a  usual  means  for  securing  pub- 
lic credit. 

Wiggin  v.  City  of  Lewiston  (Ida- 
ho) 69  Pac.  286;  Coquard  v.  Village 
of  Oquawka,  192  111.  355,  61  N.  E. 
660;  Witter  v.  Polk  County  Sup'rg, 
112  Iowa,  380.  The  power  to  incur 
a  certain  indebtedness  carries  with 
it  only  the  implied  power  to  evi- 
dence the  same  by  some  form  of  non- 
negotiable  instrument. 

City  of  Vicksburg  v.  Lombard,  51 
Miss.  111.  Where  power  granted 
to  issue  municipal  securities,  the 
implied  power  is  conferred  to  give 
them  a  negotiable  and  commercial 
form  and  character. 

Hubbard  T.  Sadler,  104  N.  Y.  223. 
The  power  to  issue  bonds  in  pay- 
ment for  a  public  improvement  is 
implied  from  the  power  expressly 
given  to  borrow  money  and  make 
the  improvement 


Tucker  v.  City  of  Raleigh,  75  N. 
C.  267.  The  power  to  contract  debts 
it  was  held  here  also  carried  with 
it  the  implied  power  to  issue  bonds, 
they  being  as  the  court  said  "the 
usual  and  proper  evidence  and  se- 
curity for  such  debts." 

Town  of  Klamath  Falls  v.  Sachs, 
35  Or.  325,  57  Pac.  329.  Where  the 
power  to  issue  bonds  is  given,  au- 
thority is  conferred  to  issue  "ne- 
gotiable bonds." 

Com.  v.  City  of  Pittsburgh,  34  Pa. 
496.  The  power  to  borrow  money 
held  includes  the  power  to  issue  the 
usual  evidences  of  such  indebted- 
ness. 

City  of  Williamsport  v.  Com.,  84 
Pa.  487.  The  court  here  said  that 
"where  a  municipality  has  lawfully 
created  a  debt"  it  has  the  implied 
power,  unless  restrained  by  its  char- 
ter or  statute,  to  evidence  the  same 
by  bill,  bond  or  other  instrument. 
A  power  to  contract  a  debt  implies 
the  right  to  issue  the  proper  ac- 
knowledgment therefor. 

337  See  also  authorities  cited  in 
preceding  notes.  Merrill  v.  Town  of 
Monticello,  138  U.  S.  673.  The  power 
to  borrow  money  held  not  to  include 
the  power  to  issue  bonds.  See,  also, 
Id.,  22  Fed.  589;  Brenham  v.  Ger- 
man American  Bank,  144  U.  S.  173; 
Union  Pac.  R.  Co.  v.  Lincoln  Coun- 
ty, 3  Dill.  300,  Fed.  Gas.  No.  14,380; 
Francis  v.  Howard  County,  50  Fed. 
44. 

Ashuelot  Nat.  Bank  v.  School  Dist. 
No.  7  (C.  C.  A.)  56  Fed.  197.  The 
court  after  referring  to  the  rule 
laid  down  in  Merrill  v.  Town  of 
Monticello,  138  U.  S.  673,  and  Bren- 
ham v.  German  American  Bank,  144 
U.  S.  173.  said:  "We  think,  how- 


§  170 


ISSUANCE  OF  SECURITIES. 


377 


The  capacity  of  public  corporations  to  incur  indebtedness  is  re- 
stricted through  the  application  of  every  possible  rule.  The  im- 
plied power  is  sometimes  assumed  as  belonging  to  them  of  in- 
curring indebtedness  to  pay  current  expenses  or  anticipating 
for  a  brief  period  only  uncoflected  taxes.  The  burden  of  pay- 
ing obligations  thus  assumed  is  sustained  by  those  incurring 
or  authorizing  the  incurment  of  them,  and  to  maintain  the  cor- 
porate organization  or  pay  the  wages  of  corporate  employes  de- 
pending on  their  daily  earnings  for  a  living,  the  courts  have 
recognized  the  existence  of  the  right  suggested.  The  burden 
of  paying  negotiable  bonds  with  interest  coupons  issued  as 
evidences  of  indebtedness  for  other  purposes  than  those  sug- 
gested is  usually  not  felt  by  those  authorizing  the  issue  or  in- 


ever,  that  we  may  fairly  affirm  that 
the  two  authorities  heretofore  cited 
do  establish  the  following  proposi- 
tions: First,  that  an  express  power 
conferred  upon  a  municipal  corpora- 
tion to  borrow  money  for  corporate 
purposes  does  not,  in  itself,  carry 
with  it  an  authority  to  issue  nego- 
tiable securities:  Second,  that  the 
latter  power  will  never  be  implied 
in  favor  of  a  municipal  corporation, 
unless  such  implication  is  necessary 
to  prevent  some  express  corporate 
power  from  becoming  utterly  nuga- 
tory; and  Third,  that  in  every  case 
where  a  doubt  arises  as  to  the 
right  of  a  municipal  corporation  to 
execute  negotiable  securities,  the 
doubt  should  be  resolved  against  the 
existence  of  any  such  right." 

Rathbone  v.  Kiowa  County  Com'rs, 
73  Fed.  395.  Here  the  court  said: 
"The  rule  of  law  in  relation  to  the 
issue  of  negotiable  bonds  is  that 
whenever  the  power  to  issue  is 
called  in  question,  the  authority  to 
issue  must  be  clearly  shown  and  will 
not  be  deduced  from  uncertain  in- 
ferences and  can  only  be  conferred 
by  language  which  leaves  no  rea- 
sonable doubt  of  an  intention  to  con- 


fer it."  See  C.  C.  A.  decision  83 
Fed.  125. 

Lehman  v.  City  of  San  Diego  (C. 
C.  A.)  83  Fed.  669.  Act  March  7th, 
1872,  conferring  upon  the  city  of 
San  Diego  the  power  "to  borrow 
money  upon  the  faith  and  credit  of 
the  city"  does  not  confer  any  power 
to  issue  negotiable  bonds. 

English  v.  Chicot  County,  26  Ark. 
454;  Hardin  County  v.  McFarlan, 
82  111.  138;  State  v.  Moore,  45  Neb. 
12,  63  N.  W.  130;  Lane  v.  Schomp, 
20  N.  J.  Eq.  (5  C.  E.  Green)  82; 
Morrison  v.  Inhabitants  of  Bernards, 
36  N.  J.  Law,  219;  Ghiglione  v. 
Marsh,  23  App.  Div.  61,  48  N.  Y. 
Supp.  604.  The  authority  to  incur 
a  given  indebtedness  the  court  also 
confers  the  power  to  issue  bonds 
for  the  full  amount  at  par. 

Smathers  v.  Madison  County 
Com'rs,  125  N.  C.  480.  A  county 
can  issue  bonds  for  an  indebtedness 
incurred  for  its  necessary  running 
expenses.  See,  also,  as  holding  the 
same,  Murry  v.  Fay,  2  Wash.  St. 
352,  and  as  holding  to  the  contrary. 
Claiborne  County  v.  Brooks,  111  U. 
S.  400;  Mauldin  v.  City  Council  of 
Greeneville,  33  S.  C.  1;  Daggett  v. 
Lynch,  18  Utah,  49. 


378 


POWERS. 


§   170 


curring  such  indebtedness.  They  are  generally  issued  payable 
after  the  lapse  of  long  periods  of  time,  the  payment  of  the  annual 
interest  charges  alone  resting  upon  those  immediately  incurring 
the  debt,  the  principal  payment  falling  upon  taxable  inter- 
ests many  years  in  the  future.  It  is  a  comparatively  easy  matter 
for  extravagant  officials  or  even  the  people  themselves  to  incur 
indebtedness  payable  by  negotiable  bonds  without  regard  to  the 
burdens  that  may  thus  be  placed  upon  posterity.  Men  are  prone 
to  be  generous  or  even  extravagant  with  the  moneys  of  others 
and  indifferent  to  their  burdens.  Where  the  task  of  paying  a 
debt  falls  upon  the  one  creating  it,  he  will  exercise  greater  care 
and  more  conservatism.  Expenditures  will  be  considered  not 
only  with  reference  to  their  results  and  expediency  but  also  to 
tax  levies.  It  is  these  considerations  largely  which  have  induced 
the  courts  to  adopt  and  adhere  to  the  rule  stated  at  the  beginning 
of  this  section,  and  we  find  repeated  iterations  in  the  decisions 
of  all  courts,  state  as  well  as  Federal.338 


ass  Police  Jury  v.  Britton,  82  U. 
S.  (15  Wall.)  566.  In  this  case  the 
court  in  denying  the  implied  power 
of  a  municipal  corporation  to  issue 
corporate  bonds,  say:  "It  thus  ap- 
pears that  the  police  jury  had  no 
express  authority  to  issue  the  bonds 
in  question,  and  that  if  they  had 
any  authority  it  must  be  implied 
from  the  general  powers  of  admin- 
istration with  which  they  were  in- 
vested. We  have,  therefore,  the 
question  directly  presented  in  this 
case  whether  the  trustees  or  repre- 
sentative officers  of  a  parish,  coun- 
ty, or  other  local  jurisdiction,  invest- 
ed with  the  usual  powers  of  admin- 
istration in  specific  matters,  and  the 
power  of  levying  taxes  to  defray  the 
necessary  expenditures  of  the  juris- 
diction, have  an  implied  authority 
to  issue  negotiable  securities,  pay- 
able in  future,  of  such  a  character 
as  to  be  unimpeachable  in  the  hands 
of  bona  fide  holders,  for  the  pur- 
pose of  raising  money  or  funding 
a  previous  indebtedness. 


"This  subject,  as  applied  to  various 
municipal  bodies,  has  been  much  dis- 
cussed in  the  courts  of  this  country, 
and  various  conclusions  have  been 
reached,  depending  sometimes  upon 
the  peculiar  character  and  statutory 
powers  of  the  corporation,  sometimes 
upon  the  character  of  the  objects  to 
be  attained,  and  sometimes  upon  the 
naked  implication  of  power  sup- 
posed to  arise  from  the  express 
power  to  make  expenditures.  *  *  * 
That  a  municipal  corporation  which 
is  expressly  authorized  to  make  ex- 
penditures for  certain  purposes  may, 
unless  prohibited  by  law,  make  con- 
tracts for  the  accomplishment  of 
the  authorized  purposes,  and  there- 
by incur  indebtedness,  and  issue 
proper  vouchers  therefor,  is  not  dis- 
puted. This  is  a  necessary  incident 
to  the  express  power  granted.  But 
such  contracts,  as  long  as  they 
remain  executory,  are  always  li- 
able to  any  equitable  considera- 
tions that  may  exist  or  arise 
between  the  parties,  and  to  any 


§  171 


ISSUANCE  OP  SECURITIES. 


379 


§  171.    Ratification  of  void  issue  of  negotiable  bonds. 

The  common  principle  of  law  that  an  unauthorized  act  may  be 
subsequently  ratified  does  not  apply  to  the  issue  of  negotiable 


modification,  abatement  or  rescis- 
sion, in  whole  or  in  part,  that  may 
be  just  and  proper  in  consequence 
of  illegalities,  or  disregard  or  be- 
trayal of  the  public  interests.  Such 
contracts  are  very  different  from 
those  which  are  in  controversy  in 
this  case.  The  bonds  and  coupons 
on  which  a  recovery  is  now  sought 
are  commercial  instruments,  payable 
at  a  future  day  and  transferable 
from  hand  to  hand.  Such  instru- 
ments transferred  before  maturity 
to  a  bona  fide  purchaser  leave  be- 
hind them  all  equities  and  inquiries 
into  consideration  and  the  conduct 
of  parties;  and  become,  in  the  hands 
of  an  innocent  holder,  clean  obliga- 
tions to  pay,  without  any  power  on 
the  part  of  the  municipality  to  de- 
mand any  inquiry  as  to  the  justice 
or  legality  of  the  original  claim, 
or  to  plead  any  corrupt  practice  of 
the  parties  in  obtaining  the  secur- 
ity. This  characteristic  of  commer- 
cial paper,  which  no  court  has  more 
faithfully  enforced  than  this,  raises 
the  doubt  whether  the  power  to  is- 
sue it  can  be  implied  from  the  ordi- 
nary powers  of  local  administration 
and  police  which  are  conferred  upon 
the  boards  and  trustees  of  political 
districts.  The  power  to  issue  such 
paper  has  been  the  means  in  several 
cases  which  have  recently  been 
brought  to  our  notice,  of  imposing 
upon  counties  and  other  local  juris- 
dictions burdens  of  a  most  fraudu- 
lent and  iniquitous  character,  and 
of  which  they  would  have  been  sum- 
marily relieved  had  not  the  obliga- 
tions been  such  as  to  protect  them 
from  question  in  the  hands  of  bona 


fide  holders.  As  such  we  have  been 
reluctantly  compelled  to  sustain 
them,  but  only  on  the  ground  that 
the  power  to  issue  them  had  been 
expressly,  or  by  necessary  implica- 
tion, conferred  by  the  legislature. 
The  power  to  issue  such  obligations 
and  thus  irretrievably  to  entail  upon 
counties,  parishes  and  townships  a 
burden  for  which  perhaps  they  have 
received  no  just  consideration,  opens 
the  door  to  immense  frauds  on  the 
part  of  petty  officials  and  scheming 
speculators.  It  seems  to  us  to  be 
a  power  quite  distinct  from  that  of 
incurring  indebtedness  for  improve- 
ments actually  authorized  and  un- 
dertaken, the  justness  and  validity 
of  which  may  always  be  inquired 
into.  It  is  a  power  which  ought  not 
to  be  implied  from  the  mere  au- 
thority to  make  such  improvements. 
It  is  one  thing  for  county  or  parish 
trustees  to  have  the  power  to  incur 
obligations  for  work  actually  done 
in  behalf  of  the  county  or  parish, 
and  to  give  proper  vouchers  there- 
for, and  a  totally  different  thing  to 
have  the  power  of  issuing  unim- 
peachable paper  obligations  which 
may  be  multiplied  to  an  indefinite 
extent.  If  it  be  once  conceded  that 
the  trustees  or  other  local  repre- 
sentatives of  townships,  counties 
and  parishes  have  the  implied  pow- 
er to  issue  coupon  bonds,  payable 
at  a  future  day,  which  may  be  valid 
and  binding  obligations  in  the  hands 
of  innocent  purchasers,  there  will 
be  no  end  to  the  frauds  that  will 
be  perpetrated. 

"We  do  not  mean  to  be  understood 
that  it  requires  in  all  cases  express 


380 


POWERS. 


§   171 


bonds  by  a  public  corporation.     If  such  bonds  are  illegal  or  void 
because  issued  in  excess  of  the  original  grant  of  power,  or  be- 


authority  for  such  bodies  to  issue 
negotiable  paper.  The  power  has 
frequently  been  implied  from  other 
express  powers  granted.  Thus,  it 
has  been  held  that  the  power  to 
borrow  money  implies  the  power 
to  issue  the  ordinary  securities  for 
its  repayment,  whether  in  the  form 
of  notes  or  bonds  payable  in  future. 
So  the  power  to  subscribe  for  stock 
In  a  railroad,  or  to  purchase  prop- 
erty for  a  market  house,  and  other 
like  powers  which  cannot  be  carried 
into  execution  without  borrowing 
money,  or  giving  obligations  pay- 
able in  the  future,  have  been  held 
sufficient  to  raise  the  implied  power 
to  issue  such  obligations.  But  in 
our  judgment  these  implications 
should  not  be  encouraged  or  extend- 
ed beyond  the  fair  inferences  to  be 
gathered  from  the  circumstances  or 
each  case.  It  would  be  an  anomaly, 
justly  to  be  deprecated,  for  all  our 
limited  territorial  boards,  chargeo 
with  certain  objects  of  necessary  lo- 
cal administration,  to  become  the 
fountains  of  commercial  issues,  cap- 
able of  floating  about  in  the  finan- 
cial whirlpools  of  our  large  cities." 
In  Gause  v.  City  of  Clarksville,  5 
Dill.  165,  Fed.  Cas.  No.  5,276,  it  was 
said:  "It  is  a  non  sequitur,  as  ap- 
plied to  municipal  and  public  cor- 
porations, to  aflBrm  that  this  power 
to  create  debts  implies  the  power  to 
give  a  negotiable  bill,  bond  or  note 
therefor,  which  shall  be  invested 
with  all  the  incidents  of  negotiabili- 
ty. Such  an  implied  power  is  de- 
nied in  England  even  as  to  private 
corporations  organized  for  pecuniary 
profit  (other  than  banking  or  trad- 
ing corporations),  and  this  demon- 
strates that  the  alleged  implication 


of  such  a  power  in  municipal  cor- 
porations is  neither  logically  nor 
legally  sound.  But  if  it  be  conced- 
ed that,  as  respects  private  corpora- 
tions, the  American  doctrine  is  oth- 
erwise, and  that  is  rightly  so,  still 
it  does  not  follow  that  the  same  rule 
does  not  apply,  or  ought  to  apply,  to 
municipal  corporations.  They  are 
not  created  for  trading,  commercial, 
or  business  purposes.  Private  cor- 
porations are  more  vigilant  of  their 
interests  than  it  is  possible  for  mu- 
nicipal corporations  to  be.  The  lat- 
ter are  in  their  nature  governmental 
agencies,  having  in  general  but  one 
resource  with  which  to  meet  their 
liabilities,  and  that  is  by  taxation, 
and  it  is  upon  this  resource  that 
creditors  must  be  taken  to  rely.  The 
frauds  such  a  doctrine  will  enable 
unscrupulous  oflicers  successfully  to 
practice,  ought  to  weigh  with  decis- 
ive force  against  its  unnecessary  ju- 
dicial entertainment." 

In  New  York  it  has  been  held  that 
the  implied  authority  is  only  to  issue 
bonds  directly  to  the  creditor  in  pay- 
ment of  the  debt,  not  to  sell  the 
bonds  in  order  to  raise  money  to  pay 
the  debt.  In  Ketchum  v.  Buffalo,  14 
N.  Y.  (4  Kern.)  356,  Justice  Seldon 
said:  "It  is  true  that  the  power  to 
contract  to  pay  A  $10,000  at  the 
end  of  a  year  for  doing  certain  work 
and  the  power  to  borrow  $10,000  of 
B  upon  a  credit  of  a  year,  for  the 
purpose  of  paying  A  for  doing  the 
work,  might  seem  at  first  view  to 
be  substantially  identical.  The 
amount  is  the  same  and  the  time  of 
payment  the  same;  the  creditor 
only  is  different.  A  little  examina- 
tion, however,  will  show  that  there 
is  a  very  material  difference  between. 


§  171 


ISSUANCE    OF    SECURITIES. 


381 


cause  it  is  lacking,  it  is  clear  that  unless  the  power  is  subse- 
quently given  the  corporation  itself  cannot  by  any  act  of  its  own 
ratify  such  issue,  making  that  which  was  before  illegal  and  void, 
legal  and  enforceable.  The  act  of  ratification  cannot  create  the 
power  where  it  never  existed.339 


the  two.  If  the  power  of  the  cor- 
poration to  use  its  credit  is  limited 
to  contracting  directly  for  the  ac- 
complishment of  the  object  author- 
ized by  law,  then  the  avails  or  con- 
sideration of  the  debt  created  can- 
not be  diverted  to  any  illegitimate 
purpose.  The  contract  not  only  cre- 
ates the  fund,  but  secures  its  just 
appropriation.  On  the  contrary,  if 
the  money  may  be  borrowed,  the  cor- 
poration will  be  liable  to  repay  it, 
although  not  a  cent  may  ever  be  ap- 
plied to  the  object  for  which  it  was 
avowedly  obtained.  It  may  be  bor- 
rowed to  build  a  market  and  appro- 
priated to  build  a  theater  and  yet 
the  corporation  would  be  respon- 
sible for  the  debt.  The  lender  is 
in  no  way  accountable  for  the  use 
made  of  the  money.  It  is  plain, 
therefore,  that  if  the  policy  of  limit- 
ing the  powers  and  expenditures  of 
corporations  to  the  objects  contem- 
plated by  their  charters  is  to  be 
carried  out,  their  right  to  incur 
debts  for  those  objects  must  be 
strictly  confined  to  contracts  which 
tend  to  their  direct  accomplishment. 
*  *  *  No  one  can  fail  to  see  that 
to  concede  to  corporations  the  pow- 
er to  borrow  money  for  any  pur- 
pose would  be  entirely  subversive 
of  the  principle  which  would  limit 
their  operations  to  legitimate  ob- 
jects." 

In  City  of  Williamsport  v.  Com., 
84  Pa.  487,  495,  the  court  say:  rue 
question  for  our  consideration  i& 
whether  the  power  to  issue  bonds  is 
one  of  the  inherent  powers  of  a 


municipal  corporation  in  a  limited 
sense,  that  is  to  say,  for  the  pur- 
pose of  providing  for  such  expend- 
iture as  is  strictly  germane  to  the 
object  for  which  such  corporations 
aro  created,  we  are  not  without  au- 
thorities that  question  if  they  do 
not  deny  this  power.  Judge  Dillon, 
one  of  the  ablest  writers  upon  this 
branch  of  the  law,  says,  in  his 
treatise  on  the  law  of  municipal 
bonds,  p.  13:  'We  regard  as  alike 
unsound  and  dangerous  that  a  pub- 
lic or  municipal  corporation  possess- 
es the  Implied  power  to  borrow 
money  for  its  ordinary  purposes 
and  as  incidental  to  that  the  pow- 
er to  issue  commercial  securities. 
*  *  *'  The  ground  principally  re- 
lied upon  by  that  learned  author  and 
others  who  take  this  view  of  the 
question,  is  that  the  power  is  a  dan- 
gerous one.  But  showing  that  the 
power  is  dangerous  does  not  prove 
that  it  does  not  exist." 

339  See  authorities  cited  in  §  200, 
post.  Norton  v.  Shelby  County,  118 
U.  S.  425;  Katzenberger  v.  City  of 
Aberdeen,  121  U.  S.  172.  In  Kelley 
v.  Milan,  127  U.  S.  139-159,  Blatch- 
ford,  Judge,  says:  "The  declaration 
of  the  validity  of  the  bonds  contained 
in  the  decree  was  made  solely  in 
pursuance  of  the  consent  to  that  ef- 
fect contained  in  the  agreement 
signed  by  the  mayor  of  the  town 
and  the  ofiicer  of  the  New  Orleans, 
St.  Louis  &  Chicago  railroad  com- 
pany. The  act  of  the  mayor  in  sign- 
ing that  agreement  could  give  no 
validity  to  the  bonds  if  they  had 


382 


POWERS. 


172 


§  172.    The  issue  of  bonds ;  their  purpose. 

A  public  corporation  in  its  capacity  as  such  is  restricted  in  all 
its  actions  by  the  principle  that  being  a  subordinate  agent  of 
government  such  acts  to  be  valid  must  be  done  in  furtherance  of 
some  well-recognized  and  legitimate  aim  or  end  of  government, 


none  at  the  time  the  agreement  was 
made.  The  want  of  authority  to 
issue  them  extended  to  a  want  of 
authority  to  declare  them  valid. 
The  mayor  had  no  such  authority. 
*  *  *  The  adjudication  in  the 
decree  cannot,  under  the  circum- 
stances, be  set  up  as  a  judicial  de- 
termination of  the  validity  of  the 
bonds.  This  was  not  the  case  of  a 
submission  to  the  court  of  a  question 
for  its  decision  on  the  merits,  but 
it  was  a  consent  in  advance  to  a 
particular  decision  by  a  person  who 
had  no  right  to  bind  the*  town  by 
such  a  consent  because  it  gave  life 
to  invalid  bonds  and  the  authorities 
of  the  town  had  no  more  power  to 
do  so  than  they  had  to  issue  the 
bonds  originally." 

Boon  Tp.  v.  Cummins,  142  U.  S. 
366;  Thomas  v.  Town  of  Lansing, 
14  Fed.  619;  Town  of  Oxford  Com'rs 
v.  Union  Bank  of  Richmond  (C.  C. 
A.)  96  Fed.  293;  Sage  v.  Fargo  Tp., 
107  Fed.  383;  Lewis  v.  City  of 
Shreveport,  3  Woods,  205,  Fed.  Cas. 
No.  8,331,  affirmed  in  108  U.  S.  282; 
Town  of  Pana  v.  Lippincott,  2  111. 
App.  466;  Ryan  v.  Lynch,  68  111. 
160;  Herwig  v.  Richardson,  44  La. 
Ann.  703,  11  So.  135;  Young  v.  Board 
of  Education  of  Independent  School 
Dist.,  54  Minn.  385;  State  v.  Getch- 
ell,  3  N.  D.  243,  55  N.  W.  585. 
Bonds  authorized  to  be  issued  upon 
a  vote  of  the  electors  but  issued 
without  such  authority  by  corpor- 
ate officials  can  be  subsequently  rati- 
fied by  the  vote  of  the  people. 

Hodges  v.  City  of  Buffalo,  2  Denio 


(N.  Y.)  110.  See  Halstead  v.  City 
of  New  York,  3  N.  Y.  (3  Comst.) 
430.  But  compare  Peterson  v.  City 
of  New  York,  17  N.  Y.  449,  and  Gro- 
gan  v.  City  of  San  Francisco,  18 
Cal.  590. 

Union  Bank  v.  Town  of  Oxford 
Com'rs,  119  N.  C.  214,  34  L.  R.  A. 
487;  Bell  v.  Waynesboro  Borough, 
195  Pa.  299;  Daggett  v.  Lynch,  18 
Utah,  49,  where  the  legislature  pos- 
sesses the  power  to  raise  the  debt 
limit  of  a  county,  it  can  subsequent- 
ly validate  debts  issued  by  a  county 
in  excess  of  the  legal  limit.  Clark 
v.  City  of  Janesville,  13  Wis.  414; 
Town  of  Rochester  v.  Alfred  Bank, 
13  Wis.  432. 

See  Hunt  v.  Fawcett,  8  Wash.  396, 
where  special  legislative  authority 
was  granted  authorizing  counties 
to  ratify  void  indebtedness  created 
prior  to  the  taking  of  effect  of  the 
act.  De  Mattos  v.  City  of  New 
Whatcom,  4  Wash.  127,  29  Pac. 
933;  Simonton,  Mun.  Bonds,  §  247. 
p.  344.  However,  the  legislature 
may  ratify  such  debts  or  author*- 
ize  the  municipality  to  do  so  if  nof 
prohibited  by  the  constitution. 

Grenada  County  Sup'rs  v.  Brog- 
den,  112  U.  S.  261;  Bolles  v.  Town  of 
Brimfield,  120  U.  S.  759;  Simonton, 
Mun.  Bonds,  §  247,  p.  345.  If  pro- 
hibited by  constitution,  the  debt 
cannot  be  ratified.  Citizens'  Sav.  & 
Loan  Ass'n  v.  City  of  Topeka,  87 
U.  S.  (20  Wall.)  655;  McPherson  v. 
Foster  Bros.,  43  Iowa,  48;  Simonton, 
Mun.  Bonds,  §  247,  p.  345. 


g   172  ISSUANCE    OF    SECURITIES.  383 

or,  as  has  been  frequently  said,  the  corporation  being  public  in 
its  nature  its  expenditures  especially  must  have  for  their  end  the 
advancement  or  execution  of  some  public  purpose.  This  prin- 
ciple of  law  is  applicable  in  all  its  force  to  the  issue  of  negotiable 
bonds  by  public  corporations.  As  was  said  in  a  preceding  sec- 
tion,340 the  appropriation  of  moneys  raised  through  the  levy  and 
collection  of  public  taxes  upon  taxable  interests  for  private  pur- 
poses amounts  to  confiscation  and  cannot  be  considered  under 
any  circumstances  a  legitimate  use  of  such  fund.  However,  the 
courts  in  construing  the  phraseology  "a  private  purpose"  have 
been  influenced  by  the  public  policy  of  the  particular  locality  or 
a  statutory  or  constitutional  provision  that  concedes  the  author- 
ity to  make  an  expenditure  which  under  ordinary  circumstances 
would  not  be  considered  a  use  of  public  moneys  for  a  public 
purpose.  If  there  is  any  doubt  as  to  the  right  of  a  public  cor- 
poration to  expend  moneys  in  its  treasury  for  a  use  which  can- 
not be  characterized  clearly  as  a  public  one,  most  emphatically 
there  does  not  exist  any  doubt  that  a  public  corporation  cannot 
incur  an  indebtedness  evidenced  by  negotiable  bonds  for  the  pur- 
pose of  aiding  an  enterprise  or  contracting  an  improvement  the 
character  of  which  is  not  clearly  established  as  coming  within 
the  rule  laid  down  in  this  section.341 

8<o  See  §  148.  See,  also,  many  reason  of  its  having  paid  some  in- 

authorities  cited  under  sections  145-  stalments  of  interest  on  the  bonds, 

148  upon  the  question  of  public  pur-  or  by  reason  of  any  of  the  acts  of 

pose.  its  officers  or  agents  in  dealing  with 

341  Citizens'  Sav.  &  Loan  Ass'n  v.  the  property  covered  by  the  deed  of 
City  of  Topeka,  87  U.  S.  (20  Wall.)  trust,  no  such  acts  can  give  validity 
655;  City  of  Parkersburg  v.  Brown,  to  the  statute  or  to  the  bonds.  How- 
106  U.  S.  487.  The  legislature  of  ever,  they  may  affect  the  status  of 
West  Virginia  authorized  the  city  of  the  property  dealt  with,  or  the  re- 
Parkersburg  to  issue  its  bonds  in  lation  of  the  city  to  such  property." 
aid  of  a  manufacturing  company.  City  of  Ottawa  v.  Carey,  108  U. 
Blatchford,  J.,  in  holding  the  bonds  S.  110;  Cole  v.  City  of  La  Grange, 
thus  issued  void,  said:  "There  hav-  113  U.  S.  1;  Commercial  Nat.  Bank 
ing  been  a  total  want  of  power  to  v.  City  of  lola,  2  Dill.  353,  Fed.  Gas. 
issue  the  bonds  originally,  under  No.  3,061,  where  Judge  Dillon  then 
any  circumstances,  and  not  a  mere  on  the  Federal  bench  said  in  the 
failure  to  comply  with  the  prescribed  opinion  holding  bonds  void  issued  by 
requirements  or  conditions,  the  case  the  city  of  lola  as  a  donation  or 
is  not  one  for  applying  to  the  city  bonus  to  aid  in  the  erection  of  a 
under  any  state  of  facts,  any  doc-  private  manufacturing  plant,  "Tax- 
trine  of  estoppel  or  ratification,  by  ation  is  a  mode  of  raising  revenue 


384 


POWERS. 


§  173 


§  173.    Refunding  bonds. 

A  public  corporation  during  the  corirse  of  its  corporate  exist- 
ence may  have  incurred  an  authorized  debt  represented  by  nego- 


for  public  purposes.  When  it  is 
prostituted  to  objects  in  no  way 
connected  with  the  public  interests 
or  welfare,  it  ceases  to  be  taxation 
and  becomes  plunder.  *  *  *  All 
persons  must,  at  their  peril,  take  no- 
tice  of  the  power  of  municipal  cor- 
porations or  officers  to  issue  securi- 
ties and  especially  is  this  so  where 
the  want  of  power  results  from  con- 
stitutional prohibitions  or  provi- 
sions." 

Coulson  v.  City  of  Portland,  Deady, 
481,  Fed.  Cas.  No.  3,275.  Where 
the  municipality  ostensibly  issues 
the  bonds  for  a  public  purpose  un- 
der lawful  authority  although  the 
real  purpose  was  the  aiding  of  a 
private  enterprise,  the  court  held  it 
could  not  be  enjoined. 

Osborn  v.  Adams  County  Com'rs, 
2  McCrary,  97,  7  Fed.  441;  Bragg 
v.  Tuffts,  49  Ark.  554.  The  issue  of 
so-called  "Arkansas  war  bonds" 
was  held  in  this  case  void  as  con- 
tracts in  aid  of  the  Civil  War. 

Bartow  County  Com'rs  v.  Conyers, 
108  Ga.  559;  Bissell  v.  City  of  Kan- 
kakee,  64  111.  249;  State  v.  Neely, 
30  S.  C.  587,  3  L.  R.  A.  672;  Doty 
v.  Ellsbree,  11  Kan.  209.  See,  also, 
as  holding  the  same,  Smathers  v. 
Madison  County  Com'rs,  125  N.  C. 
480.  Where  indebtedness  incurred 
for  necessary  expenses  was  held  a 
public  purpose  and  one  authorizing 
an  issue  of  bonds;  and  Murry  v. 
Fay,  2  Wash.  St.  352;  Claiborne 
County  v.  Brooks,  111  U.  S.  400, 
however,  holds  to  the  contrary.  Cen- 
tral Branch  U.  P.  R.  Co.  v.  Smith, 
23  Kan.  745. 

Allen   v.    Inhabitants    of   Jay,    60 


Me.  124.  The  court  here  said: 
"If  there  is  any  proposition  about 
which  there  is  an  entire  and  uni- 
form weight  of  judicial  authority, 
it  is  that  taxes  are  to  be  imposed 
for  the  use  of  the  people  of  the 
state  in  the  varied  and  manifold 
purposes  of  government  and  not  for 
private  objects  or  the  special  bene- 
fit of  individuals.  Taxation  orig- 
inates from  and  is  imposed  by  and 
for  the  state.  *  *  *  The  town 
of  Jay  stands  in  precisely  the  same 
relation  to  it  as  other  towns  to  new 
or  old  mills  within  their  limits,  so 
far  as  regards  any  public  benefit  to 
be  derived  therefrom.  *  *  *  But 
because  all  useful  labor,  all  product- 
ive industry  conduces  to  the  public 
benefit,  does  it  follow  that  the  people 
are  to  be  taxed  for  the  benefit  of  one 
man  or  of  one  special  kind  of  manu- 
facturing? *  *  *  The  sailor,  the 
farmer,  the  mechanic,  the  lumber- 
man are  equally  entitled  to  the  aid  of 
coerced  loans  to  enable  them  to  car- 
ry on  their  business  with  Messrs.  H. 
and  L.  (the  persons  aided).  Our 
government  is  based  on  equality  of 
right;  the  state  cannot  discriminate 
among  occupations,  for  a  discrim- 
ination in  favor  of  one  is  a  dis- 
crimination adverse  to  all  others. 
*  *  *  But  whether  the  money 
raised  is  to  be  distributed  per  cap- 
ita or  loaned,  can  make  no  differ- 
ence in  principle.  If  towns  can  as- 
sess and  collect  money  to  be  again 
loaned  to  such  persons  as  the  ma- 
jority may  select  for  such  purposes 
as  it  may  favor,  with  such  security, 
or  without  security,  as  it  may  elect, 
property  ceases  to  be  protected  in 


§  173 


ISSUANCE    OF    SECURITIES. 


385 


tiable  bonds  or  other  evidences  of  indebtedness.     Such  debt  may 
consist  of  purchases  made,  obligations  contracted,  or  moneys  bor- 


its  acquisition  or  enjoyment.  *  *  * 
If  the  loan  be  made  to  one  or  more 
for  a  particular  object,  it  is  favor- 
itism. It  is  a  discrimination  in 
favor  of  the  particular  individual, 
and  a  particular  industry  thereby 
aided,  and  is  one  adverse  to  and 
against  all  individuals,  all  indus- 
tries not  thus  aided.  If  it  is  to  be 
loaned  to  all,  then  it  is  practically 
a  division  of  property  under  the 
name  of  a  loan.  It  is  communism 
incipient,  if  not  perfected." 

Lowell  v.  City  of  Boston,  111 
Mass.  454.  The  city  of  Boston  not 
authorized  to  issue  bonds  for  the  pur- 
pose of  aiding  those  whose  homes 
had  been  destroyed  in  the  great  Bos- 
ton fire  of  1872  by  loaning  to  them 
the  proceeds  of  such  bonds.  The  court, 
said  that  the  "power  to  levy  taxes  la 
founded  on  the  right,  duty  and  re- 
sponsibility to  maintain  and  admin- 
ister all  the  governmental  functions 
of  the  state,  and  to  provide  for  the 
public  welfare.  To  justify  any  ex- 
ercise of  the  power  requires  that  the 
expenditure  which  it  is  intended  to 
meet  shall  be  for  some  public  serv- 
ice, or  some  object  which  concerns 
the  public  welfare,"  and  further,  that 
although  remotely  a  public  benefit 
would  result,  yet  it  was  so  remote 
that  the  purpose  contemplated  could 
not  be  considered,  especially  in  the 
manner  in  which  the  moneys  were 
designed  to  be  expended,  as  a  pub- 
lic one. 

Spitzer  v.  Village  of  Blanchard, 
82  Mich.  234.  A  village  not  author- 
ized to  issue  bonds  for  the  purpose 
of  buying  fire  apparatus. 

Sweet  v.  Hulbert,  51  Barb.  (N.  Y.) 
312.  The  legislature  has  no  power 


to  confer  authority  upon  a  public 
corporation  either  absolute  or  con- 
ditional to  issue  bonds  and  donate 
the  proceeds  to  a  private  corpora- 
tion. 

City  of  Cincinnati  v.  Trustees  of 
Cincinnati  Hospital,  66  Ohio  St.  440, 
64  N.  E.  420.  The  court  held  the 
power  to  issue  bonds  for  the  repair 
and  extension  of  city  hospital  a  cor- 
porate one,  within  the  meaning  of 
Ohio  Const,  art.  13,  §  1. 

State  v.  Whitesides,  30  S.  C.  579, 
3  L.  R.  A.  777;  State  v.  Harper, 
30  S.  C.  586,  3  L.  R.  A.  Ill; 
Ohio  Valley  Iron  Works  v.  Town 
of  Moundsville,  11  W.  Va.  1;  State 
v.  Common  Council  of  Madison,  7 
Wis.  688.  In  the  absence  of  a  char- 
ter prohibition,  the  court  held  that 
the  council  could  issue  bonds  for 
the  purchase  of  a  cemetery. 

Simonton,  Mun.  Bonds,  §  40,  p. 
45,  and  cases  cited.  "The  policy  of 
the  law  is  against  the  support  of 
private  enterprises  by  the  state,  or 
any  of  its  component  parts,  and  pro- 
hibits the  aid  of  municipalities  as 
a  partner  or  otherwise  in  purely 
private  ventures." 

In  Hackett  v.  Ottawa,  99  U.  S.  86, 
bonds  although  issued  to  aid  a  pri- 
vate enterprise  were  held  valid  be- 
cause they  appeared  on  their  face 
to  have  been  issued  for  a  munici- 
pal purpose,  and  passed  into  the 
hands  of  innocent  purchasers  for 
value  without  notice  of  their  true 
object.  See,  also,  Ottawa  v.  Carey, 
108  U.  S.  110,  which  holds  such 
bonds  void  in  the  hands  of  one  who 
is  not  an  innocent  bona  fide  holder 
without  notice. 

Feldman  &  Co.  v.  City  Council  of 


Abb.  Corp.— 25. 


386 


POWERS. 


§   173 


rowed  from  time  to  time  at  varying  rates  of  interest  and  payable 
at  different  times.  In  the  administration  of  the  corporate  finan- 
ces, it  becomes  good  business  policy  and  therefore  expedient  to 


Charleston,  23  S.  C.  57.  Even,  where 
there  are  no  express  restrictions  on 
the  taxing  powers  of  the  legislature, 
it  cannot  authorize  a  city  to  issue 
bonds  to  persons  whose  property 
has  been  burned,  to  enable  them  to 
rebuild.  See,  also,  the  following 
cases  relative  to  the  validity  of 
bonds  issued  for  various  relief  pur- 
poses where,  in  the  absence  of  some 
statutory  provision  authorizing 
them,  they  are  held  void. 

Leavenworth  County  Com'rs  v. 
Miller,  7  Kan.  479;  State  v.  Osawkee 
Tp.,  14  Kan.  418.  The  court  in  its 
opinion  by  Justice  Brewer,  then  a 
member  of  the  supreme  court  of 
Kansas  say:  "It  taxes  the  whole 
community  to  assist  one  class  and 
that  not  for  the  purpose  of  reliev- 
ing actual  want,  but  to  assist  them 
in  their  regular  occupations.  These 
people  are  engaged  in  the  business 
of  farming.  This  business  cannot 
be  successfully  carried  on  without 
seed,  nor  without  stock  strong 
enough  to  do  ordinary  work.  They 
are  destitute  of  seed,  and  their  stock 
require  grain.  Hence,  the  tax  upon 
the  community.  The  principle  would 
be  the  same  if  their  supply  of  grain 
was  insufficient,  but  through  the 
prevalence  of  epizooty,  or  some  oth- 
er disease,  their  stock  had  all  died. 
Could  a  tax  be  sustained  to  purchase 
stock  for  their  ordinary  farm  work? 
Or,  again,  suppose  some  prairie  fire, 
driven  by  a  fearful  wind,  sweeps 
through  a  country,  consuming  its 
fences,  and  farming  tools,  can  a 
tax  be  sustained  to  supply  this  loss, 
and  enable  the  farmers  to  prosecutej 
their  labors?  Nor  need  the  inquiry 
be  limited  to  a  single  class.  Were 


the  carpenters  or  shoemakers,  or  any 
other  industrial  class,  located  in  a 
separate  quarter  of  a  city,  and  their 
tools  and  stock  in  trade  swept  away 
by  fire,  could  a  tax  be  sustained  to 
purchase  new  sets  of  tools  and  new 
stock  in  trade  to  enable  them  to  re- 
prosecute  their  business  and  secure 
support  for  themselves  and  fami- 
lies? No  distinction  in  principle 
can  be  made  between  these  different 
supposed  cases  and  the  case  at  bar. 
They  all  rest  upon  this  proposition, 
that  a  tax  is  laid  upon  the  public  to 
furnish  to  one  class  the  means  of 
carrying  on  its  regular  occupation." 

McConnell  v.  Hamm,  16  Kan.  228; 
Lowell  v.  City  of  Boston,  111  Mass. 
454;  Powell  v.  Heisler,  45  Minn. 
549.  Bonds  issued  under  a  special 
act  to  supply  seed  wheat  to  suffer- 
ers from  ravages  of  grasshoppers 
are  void. 

In  re  House  Row  No.  284,  31  Neb. 
505.  The  legislature  can  authorize 
the  issue  of  bonds  under  a  vote  of 
the  people  of  the  county  to  pur- 
chase grain  for  settlers  where  a 
number  of  counties  have  been  strick- 
en by  drouth,  but  this  must  be  done 
by  general  law. 

State  v.  Nelson  County,  1  N.  D' 
88,  8  L.  R.  A.  283.  N.  D.  Const. 
§  185,  prohibits  any  county  in  the 
state  from  loaning  or  giving  its 
credit  to  "any  individual  associa- 
tion or  corporation  except  for  tne 
necessary  support  of  the  poor."  An 
act  authorizing  the  issue  of  bonds 
for  the  purpose  of  supplying  seed 
wheat  to  farmers  residing  in  coun- 
ties suffering  from  crop  failure  is 
valid  and  not  in  violation  of  the 
provision  quoted.  Public  corpora- 


§   173  ISSUANCE    OF    SECURITIES.  -537 

fund  or  refund,  as  it  is  technically  termed,  such  indebtedness, 
securing  for  the  new  debt  as  evidenced  by  an  issue  of  negotiable 
bonds  a  uniform  and  usually  lower  rate  of  interest  with  provi- 
sions for  the  partial  payment  of  the  principal  at  times  optional 
with  the  maker.  This  may  be  done  owing  either  to  the  improved 
financial  credit  of  the  corporation  or  a  lowering  of  the  rate  of 
interest  received  by  lenders  on  such  investments. 

The  issue  of  the  new  or  refunding  bonds  have  for  their  purpose 
with  their  proceeds  the  payment  of  the  outstanding  and  floating 
corporate  indebtedness.  The  objection  has  been  raised  that  their 
issue  creates  an  "indebtedness"  or  a  "debt"  within  the  meaning 
of  a  constitutional  or  other  limitation  and  being  in  excess  of  the 
limit  fixed  by  such  provision  therefore  void.  This  objection  has 
been  repeatedly  decided  by  the  courts  as  not  well  taken,  for  the 
reason  that  the  proceeds  of  such  bonds  are  used  not  for  the 
purpose  of  adding  to  the  indebtedness  or  the  obligations  of  the 
corporation  but  of  paying  outstanding  ones,  which  immediately 
upon  the  exchange  become  canceled  and  not  capable  of  enforce- 
ment as  corporate  obligations,  the  only  legal  indebtedness  exist- 
ing against  the  corporation  as  a  result  of  the  exchange  consisting 
of  the  new  refunding  bonds.3*2 

tions  have  no  power  to  issue  bonds  city  of  Emporia  was  authorized  to 
or  give  aid  to  private  sectarian  issue  bonds  for  the  purpose  of  erect- 
schools,  colleges  or  charitable  insti-  ing  boarding  houses  for  the  use  of 
tutions.  See  County  of  Cook  v.  Chi-  students  at  the  state  normal  schools, 
cago  Industrial  School  for  Girls,  125  The  use  of  public  moneys  for  the 
111.  540,  1  L.  R.  A.  437;  Stevens  v.  erection  and  maintenance  of  public 
St.  Mary's  Training  School,  144  111.  educational  institutions  is  unques- 
336,  18  L.  R.  A.  832;  Atchison,  T.  tionably  proper  and  an  issue  of 
&  S.  F.  R.  Co.  v.  City  of  Atchison,  bonds  for  such  a  purpose  when  au- 
47  Kan.  712;  State  v.  Hallock,  16  thorized  by  the  legislature  will  be 
Nev.  373.  sustained.  Wetmore  v.  City  of  Oak- 
City  of  Waxahachie  v.  Brown,  67  land,  99  Cal.  146;  Williams  v.  Town 
Tex.  519.  The  general  authority  to  of  Albion,  58  Ind.  329. 
pass  ordinances,  not  inconsistent  Gardner  v.  Haney,  86  Ind.  17. 
with  the  state  constitution  or  gen-  The  fact  that  the  school  house  when 
eral  laws,  establishing  and  maintain-  built  is  not  within  the  corporate 
ing  free  schools,  constructing  school  limits  will  not  render  void  bonds 
houses  and  purchasing  sites  does  issued  for  its  construction.  State 
not  authorize  a  town  to  issue  bonds  v.  Babcock,  25  Neb.  278. 
in  payment  of  school  buildings  con-  3*2  Gunnison  County  Com'rs  v.  E. 
structed.  But  see  City  of  Emporia  H.  Rollins  &  Sons,  173  U.  S.  255. 
T.  Partch,  21  Kan.  202,  where  the  In  the  case  of  Aetna  Life  Ins.  Co.  v. 


388 


POWERS. 


§  173 


The   power  to   issue  refunding   bonds   is  not   ordinarily   im- 
pliedly  possessed,  especially  where  the  original  authority  to  con- 


Lyon  County,  44  Fed.  329,  affirmed 
in  82  Fed.  929,  which  arose  upon  a 
suit  to  collect  bonds  issued  to  re- 
fund other  bonds  which  were  in  part 
in  excess  of  constitutional  limit  of  in- 
debtedness, the  court  said,  "In  suits 
therefore  upon  refunding  bonds  rep- 
resenting prior  indebtedness,  it  is 
necessary  in  order  to  sustain  the  de- 
fense of  invalidity  to  show  that  the 
indebtedness  represented  by  the  re- 
funding bonds  was  itself  invalid  and 
nonenforceable  either  in  whole  of 
in  part." 

Fisher  v.  Board  of  Liquidation  of 
New  Orleans,  56  Fed.  49;  United 
States  v.  Board  of  Liquidation  of 
City  Debt  of  New  Orleans  (C.  C.  A.) 
60  Fed.  387;  McLean  v.  Valley  Coun- 
ty, 74  Fed.  389,  affirmed  in  (C.  C. 
A.)  79  Fed.  728.  Waite  v.  City  of 
Santa  Cruz,  75  Fed.  967.  The  Cali- 
fornia Act,  March  1,  1893,  author- 
izing towns  and  cities  to  refund 
their  indebtedness  and  issue  bonds 
therefor,  is  not  unconstitutional  aS 
special  and  local  legislation  merely 
because  it  excludes  cities  of  the  first 
class  from  its  privileges. 

Lake  County  Com'rs  v.  Platt  (C: 
C.  A.)  79  Fed.  567.  The  issue  Oi 
bonds  in  satisfaction  of  a  valid  judg- 
ment does  not  create  a  debt  but 
merely  extends  the  time  for  its  pay- 
ment. 

Aetna  Life  Ins.  Co.  v.  Lyon  Coun- 
ty, 82  Fed.  929,  affirming  44  Fed. 
329;  City  of  Huron  v.  Second  Ward 
Sav.  Bank  (C.  C.  A.)  86  Fed.  272, 
49  L.  R.  A.  534.  The  court  applies 
the  principle  given  to  an  issue  of 
refunding  bonds  exceeding  the  con- 
stitutional limitation.  In  the  opin- 
rt>n  by  Sanborn,  J.,  it  is  said  that 
"bonds  which  are  issued  to  fund  a 


valid  indebtedness  neither  create 
any  debt  nor  increase  the  debt  of  the 
municipality  which  issues  them. 
They  merely  change  the  form  of 
an  existing  indebtedness."  Citing 
Lake  County  Com'rs  v.  Platt,  79 
Fed.  567;  E.  H.  Rollins  &  Sons  v. 
Gunnison  County  Com'rs,  80  Fed. 
692;  City  of  Los  Angeles  v.  Teed, 
112  Cal.  319,  44  Pac.  580;  Powell  v. 
City  of  Madison,  107  Ind.  110;  Mari- 
on County  Com'rs  v.  Harvey  County 
Com'rs,  26  Kan.  181,  201;  In  re  State 
Bonds  (Me.)  18  Atl.  291;  Hotch- 
kiss  v.  Marion,  12  Mont.  218;  Miller 
v.  School  Dist.  No.  3,  5  Wyo.  217, 
39  Pac.  879.  And  the  court  further 
say:  "Another  objection  to  these 
bonds  is  that  the  city  of  Huron  was 
without  power  to  issue  them.  The 
position  is  not  entitled  to  extended 
consideration,  because  the  power 
granted  by  the  charter  of  the  city 
of  Huron  is  plenary.  It  was  general, 
not  special.  It  was  not  limited  to 
specified  purposes,  but  was  'to  bor- 
row money,  and  for  that  purpose  to 
issue  bonds  of  the  city  in  such  de- 
nominations, for  such  length  of 
time,  not  to  exceed  twenty  years, 
and  bearing  such  rate  of  interest, 
not  to  exceed  seven  per  cent,  per 
annum,  as  the  city  council  may 
deem  best.'  The  whole  is  greater 
than  any  of  its  parts,  and  includes 
them  all.  The  power  to  borrow 
money  and  issue  bonds  for  all  mu- 
nicipal purposes  includes  the  pow- 
er to  do  so  to  pay  or  refund 
the  indebtedness  of  the  municipal- 
ity. Portland  Sav.  Bank  v.  City  of 
Evansville,  25  Fed.  389;  Simonton, 
Mun.  Bonds,  §  126;  City  of  Quincy 
v.  Warfield,  25  111.  317;  Morris  T. 
Taylor,  31  Or.  62,  49  Pac.  660;  City 


§  173 


ISSUANCE    OF   SECURITIES. 


339 


tract  the  indebtedness  was  not  sufficiently  broad  to  authorize  the 
issue  of  bonds.     If,  however,  the  original  bonded  debt  was  legally 


of  Galena  v.  Corwith,  48  111.  423; 
Village  of  Hyde  Park  v.  Ingalls,  87 
111.  13;  Rogan  v.  City  of  Water-town, 
30  Wis.  259,  268.  There  is  nothing 
in  the  cases  of  Police  Jury  v.  Brit- 
ton,  82  U.  S.  (15  Wall.)  566;  Mer- 
rill v.  Monticello,  138  U.  S.  673,  684; 
Heins  v.  Lincoln,  102  Iowa,  69,  71 
N.  W.  189,  191;  City  of  New  Or- 
leans v.  Clark,  95  U.  S.  644;  City 
of  Waxahachie  v.  Brown,  67  Tex. 
519;  State  v.  Board  of  Liquidation 
of  City  Debt,  40  La.  Ann.  398;  Mid- 
dleport  v.  Aetna  Life  Ins.  Co.,  82 
111.  565;  Bogart  v.  Lamotte  Tp.,  79 
Mich.  294,  44  N.  W.  612;  Brenham 
v.  German  American  Bank,  144  U 
S.  173,  182;  Coffin  v.  Kearney  Coun- 
ty Com'rs,  57  Fed.  137;  or  Shannofi 
v.  City  of  Huron,  9  S.  D.  356,  6J 
N.  W.  598,  in  conflict  with  this  con- 
clusion. No  court  has  held  in  any 
of  these  cases  that  the  unlimited 
power  to  borrow  money  and  issue 
bonds  for  all  municipal  purposes 
excludes  the  power  to  do  so  to  fund 
or  pay  municipal  debts.  In  Police 
Jury  v.  Britton,  82  U.  S.  (15  Wall.) 
566,  no  power  to  issue  bonds  was 
granted  to  the  parish,  and  the  court 
simply  held  that  this  power  was 
not  to  be  inferred  from  the  grant 
of  general  powers  of  administra- 
tion. In  Merrill  v.  Monticello,  138 
U.  S.  673,  a  power  was  given  to 
issue  bonds  for  specified  purposes, 
and  the  court  held  that  this  was 
not  a  grant  of  power  to  issue  them 
for  purposes  not  specified,  on  the 
familiar  principle,  'Expressio  unius 
est  exclusio  alterius.'  In  Brenham 
v.  German  American  Bank,  144  U. 
S.  173,  and  Heins  v.  Lincoln,  102 
Iowa,  69,  71  N.  W.  189,  it  was  held 
that  a  mere  power  to  borrow  money 


without  authority  to  issue  bonds  dia 
not  include  the  power  to  emit  ne- 
gotiable securities  to  evidence  the 
debt.  In  Coffin  v.  Kearney  County 
Com'rs,  57  Fed.  137,  the  statute  ex- 
pressly forbade  the  issue  of  bonds 
at  the  time  when  they  were  put 
forth;  and  in  Shannon  v.  City  of 
Huron,  9  S.  D.  356,  69  N.  W.  598, 
the  power  to  issue  bonds  was  not 
under  discussion  at  all.  The  other 
cases  cited  are  as  wide  of  the  mark." 

This  case  also  held  that  "the  fact 
that  a  municipal  corporation  has 
diverted  the  proceeds  of  its  negoti- 
able securities  from  the  lawful  pur- 
pose for  which  they  appear  on  their 
face  to  have  been  issued  to  an  un- 
lawful purpose  is  no  defense  to  an 
action  upon  them  by  an  innocent 
purchaser  who  had  no  knowledge  of 
or  part  in  the  diversion  or  waste." 
Citing  National  Life  Ins.  Co.  v. 
Board  of  Education  of  Huron  (C. 
C.  A.)  62  Fed.  778;  West  Plains  Tp. 
v.  Sage  (C.  C.  A.)  69  Fed.  943;  An- 
derson County  Com'rs  v.  Beal,  113 
U.  S.  227;  Cairo  v.  Zane,  149  U.  S. 
122;  Maxcy  v.  Williamson  County 
Ct.,  72  111.  207. 

Lake  County  Com'rs  v.  Keene 
Five-Cent  Sav.  Bank  (C.  C.  A.)  108 
Fed.  505.  The  court  held  here,  fol- 
lowing City  of  Huron  i  Second 
Ward  Sav.  Bank  (C.  C.  A.)  86  Fed. 
272,  49  L.  rt.  A.  534,  that  funding 
bonds  neither  created  nor  increased 
a  debt  but  simply  changed  its  form. 

Independent  School  Dist.  v.  Rew, 
111  Fed.  1,  55  L.  R.  A.  364;  Chap- 
man v.  Morris,  28  Cal.  393;  Sharp 
v.  Contra  Costa  County,  34  Cal.  284; 
California  University  v.  Bernard,  57 
Cal.  612;  Bates  v.  Gregory  (Cal.) 
22  Pac.  683;  In  re  Contracting  of 


390 


POWERS. 


173 


incurred,  some  courts  hold  that  the  power  to  issue  refunding 
bonds  may  be  fairly  inferable  or  implied  from  the  original  grant 


State  Debt  by  Loan,  21  Colo.  399, 
41  Pac.  1110;  Lake  County  Com'rs 
v.  Standley,  24  Colo.  1,  49  Pac.  23; 
Riley  v.  Garfleld  Tp.,  54  Kan.  463. 
The  authority  given  "every  county 
to  refund  its  maturing  and  matured 
indebtedness  of  every  kind  and  de- 
scription whatsoever"  it  was  held 
included  all  indebtedness  whether 
created  subsequent  or  prior  to  the 
passage  of  the  act. 

Woods  v.  Board  of  Education  of 
Covington,  21  Ky.  L.  R.  941,  53  S. 
W.  517.  An  act  giving  public  cor- 
porations the  "right  to  refund  any 
debt"  by  the  issue  of  bonds  was  held 
a  remedial  one  and  should  be  ap- 
plied to  a  debt  created  subsequent 
to  the  passage  of  the  statute. 

State  v.  Board  of  Liquidators,  27 
La.  Ann.  660;  State  v.  Board  of 
liquidation  of  City  Debt,  51  La. 
Ann.  1142.  A  judgment  in  an  ac- 
tion based  upon  tort  held  not  a 
"floating  debt"  within  the  provi- 
sions of  Act  No.  67,  1884,  touching 
the  funding  of  the  indebtedness  of 
the  city  of  New  Orleans. 

Smith  v.  Stephan,  66  Md.  381; 
City  of  Port  Huron  v.  McCall,  46 
Mich.  565;  Jefferson  County  Com'rs 
v.  People,  5  Neb.  127;  Anderson  v. 
City  of  Trenton,  42  N.  J.  Law,  486. 
A  statute  authorizing  the  refunding 
of  indebtedness  by  cities  having  a 
population  of  not  less  than  25,000 
people  held  a  violation  of  that  con- 
stitutional amendment  which  for- 
bids the  passage  of  special  laws  to 
regulate  the  internal  affairs  of  a 
town. 

Hermann  v.  Town  of  Gutten- 
berg.  63  N.  J.  Law,  616,  44  Atl.  758, 
Laws  1898,  c.  40,  providing  for  the 
funding  of  existing  debts  for  street 


improvements  and  incorporated 
towns  is  a  general  law  and  there- 
fore held  constitutional. 

City  of  Poughkeepsie  v.  Quintard, 
136  N.  Y.  275;  Odd  Fellows'  Sav.  & 
Commercial  Bank  v.  Quillen,  11  Nev. 
109;  Erskine  v.  Nelson  County,  4 
N.  D.  339,  58  N.  W.  348;  Birkholz  v. 
Dinnie,  6  N.  D.  511.  The  limit  of 
indebtedness  as  determined  by  State 
Const.  §  183  cannot  be  increased 
even  by  the  issue  of  refunding 
bonds. 

Ter.  v.  Hopkins,  9  Okl.  133;  Mor- 
ris v.  Taylor,  31  Or.  62,  49  Pac.  660; 
Snyder  v.  Kantner,  190  Pa.  440; 
Hirt  v.  City  of  Erie,  200  Pa.  223, 
49  Atl.  796.  Refunding  bonds  not 
a  new  indebtedness  within  prohi- 
bition of  Const,  art.  9,  §  8. 

Cass  County  v.  Wilbarger  County, 
25  Tex.  Civ.  App.  52,  60  S.  W.  988; 
Baker  v.  City  of  Seattle,  2  Wash. 
St.  576;  De  Mattos  v.  City  of  New 
Whatcom,  4  Wash.  127,  29  Pac.  933. 
Refunding  bonds  as  to  a  certain  ex- 
cess held  invalid. 

Richards  v.  Klickitat  County,  13 
Wash.  509.  An  indebtedness  capa- 
ble of  refundment  may  consist  of 
that  incurred  either  prior  or  subse- 
quent to  legal  authority  for  the  is- 
sue of  refunding  bonds.  Miller  v. 
School  Dist.  No.  3,  5  Wyo.  217,  39 
Pac.  879;  Carbon  County  Com'rs  v. 
Rollins,  9  Wyo.  281. 

In  Deyo  v.  Otoe  County.  37  Fed. 
246,  it  is  held  that  if  the  holder  of 
valid  municipal  bonds  surrenders 
them  to  the  municipality  and  re- 
ceives in  exchange  therefor  other 
bonds  which  the  municipality  has 
not  the  lawful  right  to  issue,  he 
is  not  thereby  divested  of  his  title 
to  the  bonds  so  surrendered;  and 


§  1/3 


ISSUANCE    OF    SECURITIES. 


391 


of  authority.343  There  are  also  decisions  to  the  effect  that  the 
power  to  borrow  money  carries  with  it  the  implied  power  to  give 
as  security  or  as  evidence  of  such  indebtedness  the  usual  and 
necessary  certificates  or  commercial  instruments  which  enable  the 
corporation  to  exercise  the  power  expressly  granted  "to  borrow 
money."  An  application  of  the  principle  that  the  granting  of  a 
power  carries  with  it  the  right  to  use  all  necessary,  usual  and 
appropriate  means  in  its  execution  to  the  issue  of  negotiable 
bonds  and  that  stamps  them  with  validity.344  It  must  not  be 


such  owner  and  holder  of  the  bonds 
so  surrendered  may  maintain  an 
action  thereon  after  the  same  na- 
ture. Daily  v.  City  of  Columbus,  49 
Ind.  169.  Where  the  proceeds  of 
bonds  are  misapplied,  a  city  can 
issue  other  bonds  in  their  stead. 
Portland  Sav.  Bank  v.  City  of  Ev- 
ansville,  25  Fed.  389.  A  city  au- 
thorized "to  borrow  money  for  the 
use  of  the  city"  may  issue  renewal 
bonds. 

New  bonds  are  valid  although  old 
ones  are  void,  where  recitals  would 
tend  to  mislead  a  bona  fide  purchas- 
er. See  Cadillac  v.  Woonsocket  Inst. 
for  Savings,  58  Fed.  935.  The  court 
said:  "The  recitals  in  the  new 
bonds,  as  to  the  fact  of  'old  bonds 
falling  due,'  and  that  the  new  bonds 
were  issued  to  take  up  the  old, 
would  well  lull  an  intending  pur- 
chaser into  security.  The  defense 
it  might  have  made  against  the  old 
bonds  it  elected  not  to  make.  It 
should  not  now  be  permitted  to  set 
it  up  as  against  a  bona  fide  holder 
of  its  refunding  bonds."  See,  also, 
Ashley  v.  Presque  Isle  County 
Sup'rs,  60  Fed.  55;  Mutual  Ben. 
Life  Ins.  Co.  v.  City  of  Elizabeth, 
42  N.  J.  Law,  235;  Hills  v.  Peeks- 
kill  Sav.  Bank,  101  N.  Y.  490. 

343Whitwell  v.  Pulaski  County,  2 
Dill.  249,  Fed.  Gas.  No.  17,605.  A 
county  court  has  no  implied  au- 
thority to  fund  outstanding  war- 


rants by  the  issue  of  negotiable 
bonds  payable  at  a  fixed  future  time 
and  which  would,  if  valid,  change 
and  enlarge  the  liability  of  the 
county. 

City  of  Galena  v.  Corwith,  48  111. 
423.  "A  cit£  being  in  debt  which 
is  evidenced  by  script  or  by  prom- 
issory notes  may  surely  change  the 
form  of  the  indebtedness  to  inter- 
est bearing  bonds  and  this,  without 
express  authority  in  its  charter. 
It  is  an  inherent  power  and  vital 
without  which  such  organizations 
could  not  live." 

Hull  v.  Marshall  County,  12  Iowa, 
142;  Myers  v.  City  of  Jeffersonville, 
145  Ind.  431;  Goodnow  v.  Ramsey 
County  Com'rs,  11  Minn.  31  (Gil. 
12);  Morris  v.  Taylor,  31  Or.  62, 
49  Pac.  660.  Where  on  the  matur- 
ity of  valid  municipal  bonds,  a  mu- 
nicipality, without  legislative  au- 
thority, takes  them  up  and  issues 
others  in  their  stead,  such  second 
issues  are  void  for  want  of  author- 
ity but  the  original  debt  is  still 
good,  for  valid  bonds  cannot  be  paid 
by  void  ones.  Jefferson  County  v. 
Hawkins,  23  Fla.  223;  Hardin  Coun- 
ty v.  McFarlan,  82  111.  138;  Town 
of  Solon  v.  Williamsburg  Sav.  Bank, 
114  N.  Y.  122;  Rogan  v.  City  of 
Watertown,  30  Wis.  259;  Simonton, 
Mun.  Bonds,  §  125,  p.  165. 

3*4  Portland  Sav.  Bank  v.  City  of 
Evansville,  25  Fed.  389.  In  this 


392  POWERS.  g  173 

understood,  however,  from  the  statements  contained  in  the  pre- 
ceding sentences  that  the  right  to  issue  refunding  bonds  exists 
independent  of  an  original  grant  of  power  or  that  they  can  be 
issued  without  regard  to  the  formalities  required  by  law  in  the 
making  of  negotiable  bonds  by  such  corporations.  The  power  to 
issue  negotiable  bonds  must  have  been  given  either  directly  in  a 
specific  instance  or  as  derived  from  a  prior  general  grant  of 
authority  limited  in  the  manner  and  extent  of  its  exercise  by 
constitutional  provisions.345  The  conditions  precedent  must  be 
performed  and  the  agencies  designated  by  law  used  to  the  same 
extent  and  in  the  same  manner  as  in  an  issue  of  bonds  not  char- 
acterized by  the  term  funding  or  refunding.346 

The  original  grant  of  authority  for  the  issue  of  negotiable 
bonds  may  make  their  validity  contingent  upon  an  affirmative 
vote  of  the  electors  of  the  taxing  districts  issuing  them.  That 
an  issue  of  refunding  bonds  be  valid,  if  an  election  was  necessary 
to  the  validity  of  the  original  bonds,  the  cases  quite  uniformly 
hold  this  action  unnecessary  where  the  proper  authorities  refund 
the  corporate  indebtedness.  There  is  no  necessity  for  referring 
the  question  of  issue  to  the  people  unless  required  by  law.347  This 

case  the  common  council  of  the  city  void   as   neither   the    townships   of 

was    authorized   "to  borrow   money  the  state  nor  their  officers  had  any 

for  the  use  of  the  city"  and  under  power  to  borrow  money  or  to  issue 

this  authority  it  issued  its  renewal  bonds,   except   as   conferred   by   the 

bonds,  which  were  held  valid.    City  legislature. 

of  Huron  v.  Second  Ward  Sav.  Bank  sie  Brown  v.  Ingalls  Tp.,  81  Fed. 

(C.  C.  A.)   86  Fed.  272,  49  'L.  R.  A.  485.     An  unauthorized  board  has  no 

534;    City    of    Pierre   v.    Dunscomb  authority  to  issue  refunding  bonds. 

(C.   C.   A.)    106   Fed.   611;    City   of  Roberts  v.  City  of  Paducah,  95  Fed. 

Galena  v.  Corwith,  48  111.  423.  62;  Coffin  v.  Richards,  6  Idaho,  741, 

345  Merrill  v.  Town  of  Monticello,  59  Pac.  562.     An  ordinance  provid- 

138  U.   S.   673;    Fisher  v.  Board  of  ing  for   "the    funding   of   outstand- 

Liquidation  of  New  Orleans,  56  Fed.  ing  indebtedness  other  than  munic- 

49;    Coffin   v.   City   of    Indianapolis,  ipal  bonds"  was  held  invalid  where 

59  Fed.  221;   Coquard  v.  Village  of  the  statute  authorizing  such  action 

Oquawka,  192  111.  355,  61  N.  E.  660.  provided    that   the    indebtedness    to 

The  power  to  issue  refunding  bonds  be   refunded   must   be   described   in 

cannot  be  implied  merely  from  the  the   ordinance. 

power  originally  conferred  author-  Edminson  v.  City  of  Abilene,  7 
izing  a  former  issue.  In  Bogart  v.  Kan.  App.  305,  54  Pac.  568.  A  reso- 
Lamotte  Tp.,  79  Mich.  294,  where  lution  not  sufficient  where  the  char- 
bonds  were  issued  in  lieu  of  town-  ter  requires  enactment  of  an  ordi- 
ship  orders,  the  bonds  were  held  nance  as  necessary  to  the  issue  of 


173 


ISSUANCE    OF    SECURITIES. 


393 


is  especialy  true  where  statutes  authorize  public  corporations  to 
refund  all  matured  and  maturing  indebtedness.  There  can  be 
no  question  as  to  the  validity  of  refunding  bonds  where  the  au- 
thority to  issue  them  has  been  specially  granted.  In  such  case 
so  far  as  their  issue  is  concerned  they  will  be  deemed  original 
bonds  and  the  required  legal  conditions  and  formalities  must  be 
performed  and  complied  with.3*8 


refunding  bonds.  City  of  Cincin- 
nati v.  Guckenberger,  60  Ohio  St. 
353. 

3*7  Howard  v.  Kiowa  County,  73 
Fed.  406;  Society  for  Savings  v. 
Pratt  County  Com'rs,  82  Fed.  573; 
City  of  Los  Angeles  v.  Teed,  112  Cal. 
319,  44  Pac.  580,  disproving  Boon 
Tp.  v.  Cummins,  142  U.  S.  366; 
Bannock  County  v.  C.  Bunting  &  Co., 
4  Idaho,  156,  37  Pac.  277.  Author- 
ity granted  by  Rev.  St.  §  3602,  to 
refund  indebtedness  by  issue  of 
bonds,  when  authorized  by  a  vote 
of  two-thirds  of  the  electors  of  the 
county. 

Locke  v.  Davison,  111  111.  19. 
Where,  however,  the  law  provides 
that  the  legal  electors  of  the  county 
shall  pass  upon  the  issue  of  refund- 
ing bonds,  the  public  officials  have 
no  power,  without  such  vote,  to  is- 
sue them. 

Riley  v.  Garfield  Tp.,  58  Kan.  299, 
49  Pac.  85;  Boyce  v.  Auditor  Gen- 
eral, 90  Mich.  314,  51  N.  W.  457; 
Boyce  v.  Auditor  General,  90  Mich. 
326,  52  N.  W.  754;  State  v.  Cornell, 
54  Neb.  72,  74  N.  W.  432.  The  stat- 
utes require  a  majority  of  the  elect- 
ors to  authorize  the  issuance  of 
funding  bonds.  An  original  issue 
of  bonds  requires  two-thirds  of  all 
the  votes  cast.  McCless  v.  Meekins, 
117  N.  C.  34. 

sis  Merrill  v.  Town  of  Monticello, 
138  U.  S.  673;  Kiowa  County  Com'rs 
v.  Howard  (C.  C.  A.)  83  Fed.  296. 
In  Waite  v.  City  of  Santa  Cruz. 


98  Fed.  387,  it  was  held  that  a  city 
has  no  power  to  issue  refunding 
bonds  for  the  purpose  of  paying 
bonds  issued  by  a  private  corpora- 
tion upon  a  waterworks  plant  pur- 
chased by  the  city.  But  this  deci- 
sion was  reversed  in  Waite  v.  City 
of  Santa  Cruz,  184  U.  S.  302,  the 
court  holding  that  the  city  was  es- 
topped by  recitals  in  the  refunding 
bonds  to  the  effect  that  the  bonds 
were  issued  for  the  purpose  of  re- 
funding "outstanding  indebtedness 
evidenced  by  bonds  and  warrants 
thereof"  from  denying  that  such 
waterworks  bonds  were  a  part  of 
the  outstanding  indebtedness  of  the 
city. 

Seward  County  Com'rs  v.  Aetna 
Life  Ins.  Co.  (C.  C.  A.)  90  Fed.  222; 
Haskell  County  Com'rs  v.  National 
Life  Ins.  Co.  (C.  C.  A.)  90  Fed. 
228;  Pratt  County  Com'rs  v.  Society 
for  Savings  (C.  C.  A.)  90  Fed.  233; 
Brattleboro  Sav.  Bank  v.  Board  of 
Trustees  of  Hardy  Tp.,  98  Fed.  524. 
An  act  of  the  Ohio  legislature  au- 
thorizing a  township  to  issue  bonds 
for  the  purpose  of  refunding  its  in- 
debtedness not  void  as  in  contraven- 
tion of  the  State  Constitution,  art. 
2,  §  26,  requiring  that  all  laws  of 
a  general  nature  shall  have  a  uni- 
form operation  throughout  the 
state.  The  decision  on  this  point 
was  considered  from  the  legal  sta- 
tus of  abonaflde  purchaser  for  value 
of  negotiable  bonds  issued  under  au- 
thority of  the  refunding  act.  Cit- 


394 


POWERS. 


§  174 


§  174.     Obligations  issued  for  the  purpose  of  funding  a  bonded 
indebtedness. 

The  indebtedness  of  a  public  corporation  may  consist  of  differ- 
ent issues  of  negotiable  bonds  with  varying  dates  of  maturity. 
The  debt  considered  in  the  preceding  section  includes  the  total 
corporate  obligations  whether  evidenced  by  negotiable  bonds  or 
otherwise.  The  power  may  exist,  implied  or  granted  by  statute, 
to  refund  the  total  bonded  debt  of  the  corporation,  when  it  does 
not  exist  to  fund  or  refund  the  total  outstanding  corporate  obli- 
gations consisting  of  negotiable  bonds  and  miscellaneous  forms  of 
debt.  If,  however,  any  doubt  exists  in  either  case,  the  power 
will  be  denied.  The  issue  of  negotiable  bonds  payable  in  the  dis- 
tant future  incurred  generally  for  the  construction  of  unneces- 
sary or  extravagant  public  improvements  is  not  regarded  by  the 
courts  with  favor.  The  power  to  issue  refunding  bonds  for  the 
purpose  of  funding  bonded  indebtedness  of  a  public  corporation 
must  be  derived  from  express  legislative  authority,349  and  this  is 


ing,  with  many  Ohio  cases,  Douglas 
v.  Pike  County,  101  U.  S.  677,  and 
Loeb  v.  Trustees  of  Columbia  Tp., 
91  Fed.  37. 

Hughes  County  T.  Livingston  (C. 
C.  A.)  104  Fed.  306.  Though  war- 
rants in  place  of  which  funding 
bonds  were  issued  were  fraudulent 
and  their  proceeds  were  diverted 
from  the  lawful  purpose  specified 
in  the  bonds,  yet  such  facts  consti- 
tute no  defense  in  an  action  by  a 
bona  fide  purchaser  of  such  refund- 
ing negotiable  bonds. 

Yavapai  County  v.  McCord  (Ariz.) 
59  Pac.  99;  Smith  v.  Morse,  2  Cal. 
524;  People  v.  Woods,  7  Cal.  579; 
Board  of  Education  of  San  Francis- 
co v.  Fowler,  19  Cal.  11;  Babcock 
v.  Middleton,  20  Cal.  644.  Constru- 
ing the  constitutionality  of  the  act 
of  May  1st,  1851,  to  fund  the  in- 
debtedness of  San  Francisco,  and 
its  effect  as  impairing  the  obliga- 
tion of  the  contract  entered  into  orig- 
inally with  the  creditors  of  that 
city. 


Carpenter  v.  Hindman,  32  Kan. 
601;  State  v.  Flanders,  24  La.  Ann. 
57;  City  of  New  Orleans  v.  South- 
ern Bank,  31  La.  Ann.  560;  Jardet 
v.  Board  of  Liquidation  of  Public 
Debt,  40  La.  Ann.  379,  3  So.  893. 
An  obligation  must  be  a  legal  and 
enforceable  one  in  order  to  be  in- 
cluded within  "floating  indebted- 
ness" as  affected  by  legislation  pro- 
viding for  the  issue  of  refunding 
bonds. 

Alexander  v.  City  of  Duluth,  77 
Minn.  445,  80  N.  W.  623.  Laws  1899, 
c.  50,  held  to  have  a  temporary  and 
remedial  purpose  only  so  as  to  come 
within  the  exception  to  the  rule  that 
a  law  to  be  legal  must  be  general 
and  not  based  on  existing  circum- 
stances or  those  of  limited  dura- 
tion. State  v.  Moore,  45  Neb.  12, 
63  N.  W.  130.  Act  1887,  c.  9,  held 
not  to  include  within  the  term  "in- 
debtedness" school  district  warrants 
or  bonds. 

349  Board  of  Liquidation  T.  Me- 
Comb,  92  U.  S.  531,  determining  the 


§174 


ISSUANCE    OF    SECURITIES. 


395 


true  although  such  transactions  usually  result  in  a  benefit  or  an 
advantage  to  the  community,  and  do  not,  as  repeatedly  held,  in- 


legality  of  the  Louisiana  funding 
act  of  Jan.  24,  1874;  Hartman  v. 
Greenhow,  102  U.  S.  672;  New  York 
Guaranty  &  Indemnity  Co.  v.  Board 
of  Liquidation,  105  U.  S.  622;  Boon 
Tp.  v.  Cummins,  142  U.  S.  366.  The 
court  here  held  that  refunding  bonds 
issued  under  authority  of  law  for 
the  purpose  of  funding  the  outstand- 
ing bonded  indebtedness  of  the  cor- 
poration and  which  were  devoted 
in  a  large  measure  to  the  payment 
of  miscellaneous  obligations,  not  to 
the  payment  of  outstanding  bonds 
as  designed,  were  not  enforceable 
even  in  the  hands  of  a  bona  fide 
holder  where  the  total  indebtedness 
of  the  corporation  including  such 
refunding  bonds  exceeded  the  con- 
stitutional limit.  Justices  Brown, 
Harlan  and  Brewer  dissenting.  This 
case,  however,  has  been  so  distin- 
guished and  criticised  in  respect  to 
the  point  suggested  that  its  value 
as  authority  has  been  much  modi- 
fied if  not  entirely  destroyed.  It 
has  been  cited  with  approval  in 
Shaw  v.  Independent  School  Dist. 
of  Riverside,  77  Fed.  277,  and  dis- 
approved in  City  of  Los  Angeles  v. 
Teed,  112  Cal.  319,  44  Pac.  582,  and 
City  of  Huron  v.  Second  Ward  Sav. 
Bank,  86  Fed.  278,  49  L.  R.  A.  534. 
In  this  latter  case  in  an  able  opin- 
ion by  Judge  Sanborn,  the  court 
said:  "In  Boon  Tp.  v.  Cummins, 
142  U.  S.  367,  372,  378,  12  Sup.  Ct. 
220,  the  plaintiff  did  not  buy  the 
bonds  for  value,  in  good  faith,  and 
without  notice  of  any  defect  from 
one  to  whom  they  had  been  issued 
by  the  corporation,  as  the  bank  did 
in  this  case;  but  he  was  himself  the 
person  to  whom  they  were  originally 


issued,  and  he  knew  when  he  took 
the  first  ten  bonds  that  the  district 
exceeded  the  constitutional  limit  of 
its  indebtedness  in  issuing  them,  and 
that  it  intended  to  exceed  that  limit 
still  more.  The  opinion  of  the  ma- 
jority of  the  court  in  that  case  was 
that,  where  the  debt  of  a  municipal 
corporation  already  exceeded  the 
constitutional  limitation,  the  ex- 
change of  new  bonds  for  old,  bond 
for  bond,  would  not  increase  the 
debt  of  the  corporation,  and  would 
not  be  inconsistent  with  the  consti- 
tutional limitation,  but  that  if  the 
new  bonds  were  sold,  and  their  pro- 
ceeds were  subsequently  used  to  pay 
the  old  bonds,  there  would  be  a  tem- 
porary increase  of  the  debt,  which 
would  violate  the  limitation  and  in- 
validate the  new  securities.  The 
distinction  seems  to  be  more  nice 
than  real,  and,  in  view  of  the  vigor- 
ous dissent  which  is  recorded  with 
the  opinion,  we  may  be  permitted 
to  doubt  whether  it  will  ever  be 
made  again." 

Waite  v.  City  of  Santa  Cruz,  184 
U.  S.  302;  City  of  Cadillac  v.  Woon- 
socket  Inst.  for  Savings  (C.  C.  A.) 
58  Fed.  935;  distinguishing  Barnett 
v.  Benison,  145  U.  S.  135;  Ashley 
v.  Presque  Isle  County  Sup'rs  (C. 
C.  A.)  60  Fed.  55.  The  court  in  this 
case,  as  well  as  the  one  last  cited, 
held  that  a  purchaser  is  not  bound 
to  investigate  the  nature  of  the  re- 
funded indebtedness  where  refund- 
ing bonds  recite  upon  their  face  that 
they  are  issued  in  conformity  to 
law. 

Village  of  Oquawka  v.  Graves  (C. 
C.  A.)  82  Fed.  568.  Merely  because 
a  corporation  is  indebted,  the  pow- 


3% 


POWERS. 


174 


crease  or  add  to  the  debt  of  the  corporation  but  merely  change 
its  form.  Where  such  authority  can  be  shown  the  power  clearly 
exists.350 


er  does  not  exist  as  a  matter  of 
course  to  issue  a  renewal  or  refund- 
ing bond. 

Seward  County  Com'rs  v.  Aetna 
Life  Ins.  Co.  (C.  C.  A.)  90  Fed.  222; 
Geer  v.  Ouray  County  Com'rs  (C. 
C.  A.)  97  Fed.  435;  Farmers'  Nat. 
Bank  v.  Jones,  105  Fed.  459.  A 
state  debt  board  have  no  power  to 
exchange  new  refunding  bonds  for 
old  bonds  lost  or  destroyed. 

Board  of  Liquidation  of  New  Or- 
leans v.  United  States,  108  Fed.  689; 
Schuerman  v.  Ter.  (Ariz.)  60  Pac. 
895;  Kane  v.  City  of  Charleston,  161 
111.  179;  Coquard  v.  Village  of 
Oquawka,  192  111.  355,  61  N.  E.  660. 
Act  of  Feb.  13,  1865,  §  1,  providing 
for  the  funding  or  refunding  of  out- 
standing bonds  or  securities  applies 
to  public  corporations  incurring  in- 
debtedness before  the  passage  of  the 
act. 

Holliday  v.  Hilderbrandt,  97  Iowa, 
177,  66  N.  W.  89.  To  sustain  the 
validity  of  refunding  bonds  it  must 
be  shown  that  the  proceeds  were 
used  to  pay  the  indebtedness  they 
were  designed  to  refund. 

Kelly  v.  Cole,  63  Kan.  385,  65  Pac. 
672.  The  amount  of  refunding  bonds 
authorized  under  the  laws  of  Kan- 
sas, 1901,  c.  288,  §  1,  is  limited  to 
the  amount  of  the  bonded  indebt- 
edness actually  existing  at  the  time 
the  act  of  refunding  occurs.  Smith 
v.  Mercer  County,  104  Ky.  596,  47 
S.  W.  596;  Richmond  Cemetery  Co. 
v.  Sullivan,  104  Ky.  723,  47  S.  W. 
1079;  State  v.  Babcock,  23  Neb.  802, 
37  N.  W.  645;  State  v.  Benton,  33 
Neb.  823.  51  N.  W.  140. 

SBC  Maish  v.  Ter.  of  Arizona,  164 
U.  S.  599.  Utter  v.  Franklin,  172  U. 


S.  416.  Outstanding  legal  indebted- 
ness includes  bonds  issued  under 
authority  of  the  legislature  and  pur- 
porting on  their  face  to  be  legal  ob- 
ligations of  a  public  corporation  ir- 
respective of  their  true  character. 

P'aure  v.  Sinking  Fund  Com'rs,  25 
Fed.  641;  Gorman  v.  Sinking  Fund 
Com'rs,  25  Fed.  647;  West  Plains 
Tp.  v.  Sage  (C.  C.  A.)  69  Fed.  943. 
Refunding  bonds  need  not  be  made 
payable  to  the  holders  of  the  re- 
funded indebtedness. 

Shaw  v.  Independent  School  Dist. 
of  Riverside,  77  Fed.  277.  Refund- 
ing bonds  issued  to  fund  an  out- 
standing indebtedness  void  because 
in  excess  of  a  constitutional  limit 
are  void  without  regard  to  their  re- 
citals. 

Hobart  v.  Butte  County  Sup'rs,  17 
Gal.  23;  Sullivan  v.  Walton,  20  Fla. 
552;  Myers  v.  City  of  Jeffersonville, 
145  Ind.  431,  44  N.  E.  452.  Fund- 
ing bonds  which  have  passed  into 
the  hands  of  a  bona  fide  holder  can 
be  enforced  without  regard  to  the 
legal  character  of  the  indebtedness 
which  they  refunded. 

Heins  v.  Lincoln,  102  Iowa,  69, 
71  N.  W.  189;  Farson,  Leach  &  Co. 
v.  Sinking  Fund  Com'rs  of  Louis- 
ville, 97  Ky.  119,  30  S.  W.  17.  In 
ascertaining  a  city's  debt  to  deter- 
mine whether  the  limit  of  indebted- 
ness had  been  reached  as  fixed  by 
the  constitution,  refunding  bonds 
should  not  be  included  as  a  part 
of  said  indebtedness,  since  they  nei- 
ther increase  nor  add  to  the  debt 
of  the  municipality  but  merely 
change  its  form.  Sparks  v.  Bohan- 
non,  22  Ky.  L.  R.  1710,  61  S.  W. 
260:  Hope  v.  Board  of  Liquidation, 


§  175 


ISSUANCE    OP    SECURITIES. 


397 


§  175.    The  issue  of  negotiable  securities  for  the  construction  or 
improvement  of  highways. 

The  construction  and  improvement  of  highways  is  without 
doubt  a  governmental  purpose,  and  the  expenditure  of  public 
moneys  therefor  is  considered  a  public  use  and  one  authorizing 
not  only  the  expenditure  of  public  moneys  but  the  incurrment  of 
a  debt,  when  specially  given  the  right,  by  a  public  corporation 
through  the  issue  of  negotiable  bonds.351  The  highways  contem- 


43  La.  Ann.  738,  9  So.  754;  Opinion 
of  Justices,  81  Me.  602.  Refunding 
bonds  issued  under  authority  of  law 
are  valid,  being  in  substitution  and 
not  in  payment  of  the  old  bonds. 

Palmer  v.  City  of  Helena,  19 
Mont.  61,  47  Pac.  209;  City  of  Pough- 
keepsie  v.  Quintard,  65  Hun,  141, 
19  N.  Y.  Supp.  944;  Lloyd  v.  City 
of  Altoona,  134  Pa.  545,  19  Atl.  675. 
Where  bonds  are  refunded  the  hold- 
er cannot  be  compelled  to  take  new 
bonds  at  a  premium. 

Jones  v.  City  of  Camden,  44  S.  C. 
319,  23  S.  E.  141;  Conklin  v.  City 
of  El  Paso  (Tex.  Civ.  App.)  44  S. 
W.  879;  Branch  v.  Sinking  Fund 
Com'rs,  80  Va.  427.  Stolen  redeemed 
state  bonds  coming  into  the  hands 
of  a  bona  fide  holder  for  value  with- 
out notice  of  theft,  should  be  re- 
placed by  refunding  bonds  author- 
ized by  law. 

351  Chilton  v.  Gratton,  82  Fed. 
873;  Devine  v.  Sacramento  County 
Sup'rs,  121  Cal.  670;  State  v.  Kan- 
sas City,  60  Kan.  518;  Catron  v.  La 
Fayette  County,  106  Mo.  659.  Act 
1868  recognizes  a  bridge  as  part  of 
a  road  and  the  county  court  had 
authority  to  issue  bonds  for  "re- 
pairing" roads. 

Ghiglione  v.  Marsh,  23  App.  Div. 
61,  48  N.  Y.  Supp.  604;  Queens 
County  Sup'rs  v.  Phipps,  28  App. 
Div.  521,  51  N.  Y.  Supp.  203;  State 
v.  Warren  County  Com'rs,  17  Ohio 


St.  558-;  Jones  v.  City  of  Camden,  44 
S.  C.  319.  A  debt  contracted  for 
paving  streets  is  for  a  municipal 
purpose  and  bonds  may  be  issued 
in  payment  when  express  legisla- 
tive authority  is  conferred. 

Bonds  issued  for  improvement  of 
streets  and  highways.  Gause  v. 
City  of  Clarksville,  5  Dill.  165, 
Fed.  Gas.  No.  5,276;  Hitchcock  v. 
City  of  Galveston,  2  Woods,  272, 
Fed.  Cas.  No.  6,532;  Sturtevant  v. 
City  of  Alton,  3  McLean,  393,  Fed. 
Cas.  No.  13,580;  Greeley  v.  City  of 
Jacksonville,  17  Fla.  174;  People 
v.  Brislin,  80  111.  423— parks;  Mul- 
larky  v.  Town  of  Cedar  Falls,  19 
Iowa,  21;  Town  of  Parkland  Y. 
Gaines,  88  Ky.  562;  Catron  v.  La 
Fayette  County,  106  Mo.  659;  Mu- 
tual Ben.  Life  Ins.  Co.  v.  City  of 
Elizabeth,  42  N.  J.  Law,  235;  Mit- 
tag  v.  Borough  of  Park  Ridge,  61  N. 
J.  Law,  151;  State  v.  Babcock,  22 
Neb.  614.  In  State  v.  Babcock,  23 
Neb.  179,  it  was  held  that  a  bridge 
on  a  public  highway  leading  into 
a  city  though  outside  the  city  lim- 
its is  an  internal  improvement  with- 
in the  meaning  of  a  statute  provid- 
ing that  cities  may  issue  bonds  in 
aid  of  certain  internal  improve- 
ments. 

State  v.  Ben  ton,  25  Neb.  756; 
State  v.  Benton,  26  Neb.  154.  But 
special  district  bonds  cannot  be  is- 
sued for  the  curbing  and  guttering 


398 


POWERS. 


175 


plated  by  such  principle,  however,  include  the  ordinary  means  of 
communication  and  usually  exclude  plank  roads,  toll  roads  and 
others  similar  in  character  which  it  is  deemed  expedient  should 
be  constructed  and  operated  by  private  enterprise  rather  than  by 
public  moneys.352 

Bonds  issued  for  the  construction  or  the  improvement  of 
such  highways  as  come  within  the  proper  use  of  the  term  are  not 
ordinarily  considered  an  original  and  general  obligation  of  the 
corporation  issuing  them,  and  this  is  especially  true  where  the 
holders  are  limited  in  their  recovery  both  as  to  the  payment  of 
the  principal  and  interest  to  special  taxes  or  assessments  levied 
against  property  benefited  by  the  improvement.353  Here  the  ob- 


of  street  intersections.  Hubbard  v. 
Sadler,  104  N.  Y.  223;  State  v.  Fay- 
ette  County  Com'rs,  37  Ohio  St.  526; 
Mall  v.  City  of  Portland,  35  Or. 
89;  City  of  Williamsport  v.  Com., 
84  Pa.  487;  Com.  v.  Councils  of  Pitts- 
burgh, 88  Pa.  66;  Neely  v.  Town 
Council  of  Yorkville,  10  S.  C.  141; 
Jones  v.  City  of  Camden,  44  S.  C. 
319. 

352  in  Dodge  County  Com'rs  v. 
Chandler,  96  U.  S.  205,  a  bridge  is 
held  a  work  of  public  internal  im- 
provement for  which  a  city  may  be 
authorized  to  issue  bonds  notwith- 
standing it  is  to  be  maintained  as 
a  toll  bridge. 

Rozier  v.  St.  Francois  County,  34 
Mo.  395.  Under  a  general  law,  a 
county  court  has  no  authority  to 
apply  any  part  of  the  road  and  canal 
funds  to  the  purchase  of  a  plank 
road  already  made  by  a  corporation 
or  individuals;  it  can  apply  the  funds 
only  to  the  construction  and  im- 
provement of  roads,  bridges,  or 
canals,  and  to  no  other  object,  and 
it  exceeded  its  authority  when  it 
assigned  a  bond  appearing  upon  its 
face  to  have  been  given  for  money 
borrowed  of  the  road  and  canal 
fund  in  payment  of  an  interest  pur- 


chased in  such  a  plank  road.  But 
the  case  of  Mitchell  v.  City  of  Bur- 
lington, 71  U.  S.  (4  Wall.)  270, 
holds  that  money  borrowed  by  a 
city  to  construct  a  plank  road,  if 
the  road  leads  from,  extends  to,  or 
passes  through,  the  limits  of  the 
city,  is  borrowed  for  a  public  pur- 
pose, and  the  bonds  given  as  a 
means  of  raising  the  money  are 
valid.  This  case  also  holds  that 
where,  by  a  series  of  decisions,  the 
highest  court  of  a  state  have  held 
coupon  bonds  valid,  this  court  will 
not  follow  subsequent  decisions  of 
the  same  courts  holding  the  same 
bonds  invalid.  See,  also,  on  this 
point,  the  authorities  cited  in  sec- 
tion 202,  and  Ohio  Life  Ins.  &  T. 
Co.  v.  Debolt,  16  How.  (U.  S.)  432; 
Gelpcke  v.  City  of  Dubuque,  68  U. 
S.  (1  Wall.)  175;  Havemeyer  v. 
Iowa  County,  70  U.  S.  (3  Wall.) 
294;  Thomson  v.  Lee  County,  70  U. 
S.  (3  Wall.)  327;  Campbell  v.  City 
of  Kenosha,  72  U.  S.  (5  Wall.)  194; 
Lamed  v.  City  of  Burlington,  71  U. 
S.  (4  Wall.)  275;  Lee  County  v. 
Rogers,  74  U.  S.  (7  Wall.)  181; 
City  of  Kenosha  v.  Lamson,  76  U.  S. 
(9  Wall.)  477. 
»53  Braun  v.  Benton  County  Com'rs 


176 


ISSUANCE    OF    SECURITIES. 


399 


ligation  of  the  corporation  seems  to  be  limited  to  the  proper  col- 
lection and  application  of  the  special  taxes  or  assessments  pledged 
for  the  payment  of  the  principal  and  interest  of  such  bonds.354 

§  176.    The  construction  of  municipal  lighting  plants. 

The  supplying  of  the  inhabitants  of  a  municipality  with  light 
has  been  held  a  public  purpose  for  the  appropriation  or  expendi- 
ture of  public  moneys,  and  though  its  expediency  and  legality  is 
doubtful,  the  expenditure  of  public  moneys  for  the  purpose  of 
constructing  a  lighting  plant  for  supplying  the  city  itself  and 
public  places  with  light  is  a  public  one  within  the  recently  accepted 
definitions  of  such  term.  We  therefore  find  cases  holding  that  a 
public  corporation  may,  if  it  deems  this  course  expedient,  assum- 
ing legislative  authority,  issue  long-term  negotiable  bonds  for 
the  construction  of  a  lighting  plant.355 


(C.  C.  A.)  70  Fed.  369,  following 
Strieb  v.  Cox,  111  Ind.  299.  See, 
also,  Walker  v.  Monroe  County 
Com'rs,  11  Ind.  App.  285;  Vickrey 
v.  Sioux  City,  115  Fed.  437;  Davis 
v.  County  of  Yuba  (Cal.)  13  Pac. 
874;  Tate  v.  Town  of  Parkland,  11 
Ky.  L.  R.  838,  13  S.  W.  443.  The 
issue  of  bonds  for  the  purpose  of 
constructing  certain  streets  held  un- 
constitutional on  the  ground  that 
the  creation  of  the  fund  for  their 
payment  subjects  agricultural  land 
to  unequal  taxation. 

354  Vickrey  v.  Sioux  City,  115  Fed. 
437;    Devine  v.   Sacramento  County 
Sup'.'s,     121     Cal.     670;     Kirsch     v. 
Braun.  153  Ind.  247,  53  N.  E.  1082. 

355  Fellows  v.  Walker,  39  Fed.  651; 
Jacksonville  Elec.  Light  Co.  v.  City 
of   Jacksonville,   36   Fla.   229,   30   L. 
R.    A.    540;    Middleton    v.    City    of 
St.   Augustine,    42   Fla.    287,    29   So. 
421;    Heilbron  v.   City  of  Cuthbert, 
96    Ga.    312;    Rushville   Gas    Co.   v. 
City    of   Rushville,    121    Ind.    206,    6 
L.   R.  A.   315.     "We  have  no  doubt 
that  the  common  council  had  power 
to  contract  for  lighting  the  city  or 


to  furnish  light  from  works  of 
which  it  is,  or  may  become,  the 
owner.  The  power  exists  under  the 
general  act  of  incorporation." 

Humphries  v.  Davis,  100  Ind.  274; 
Robinson  v.  Rippey,  111  Ind.  112; 
Morrison  v.  Jacoby,  114  Ind.  84; 
Bradley  v.  Thixton,  117  Ind.  255; 
City  of  Newport  v.  Newport  Light 
Co.,  84  Ky.  167;  Janeway  v.  City 
of  Duluth,  65  Minn.  292;  Jersey 
City  Gaslight  Co.  v.  Consumers'  Gas 
Co.  of  Jersey  City,  40  N.  J.  Law  (13 
Stew.)  427;  but  Biddle  v.  Borough  of 
Riverton,  58  N.  J.  Law,  289,  33  Atl. 
279  holds  to  the  contrary.  Mason  v. 
Cranbury  Tp.,  68  N.  J.  Law,  149,  52 
Atl.  568;  Hequembourg  v.  City  of 
Dunkirk,  2  N.  Y.  Supp.  447. 

Mayo  v.  Town  of  Washington,  122 
N.  C.  5,  29  S.  E.  343,  40  L.  R.  A. 
163.  Where  the  state  constitution 
prohibited  a  municipal  corporation 
from  contracting  a  debt  or  levying 
taxes  except  for  necessary  expenses 
unless  by  a  majority  vote  of  the 
qualified  voters,  it  requires  special 
legislative  authority  to  authorize 
the  issuing  of  bonds  for  the  erec- 


400  POWERS. 

§  177.    To  secure  a  water  supply. 


177 


It  has  already  been  stated  in  a  preceding  section356  that  for  the 
proper  preservation  of  the  public  health  a  public  corporation  has 
the  power  to  incur  indebtedness  for  the  purpose  of  constructing 
and  operating  a  plant  supplying  water  to  the  corporation  itself 
for  its  necessary  municipal  purposes,  and  possibly  to  its  inhab- 
itants.357 The  power  thus  conferred  includes  the  right  to  con- 


tion  of  an  electric  light  plant  for 
the  lighting  of  its  streets. 

Town  of  Klamath  Falls  v.  Sachs, 
35  Or.  325;  Todd  v.  City  of  Laurens, 
48  S.  C.  395;  Lewis  v.  City  of  Port 
Angeles,  7  Wash.  190;  State  v.  Mil- 
waukee Gaslight  Co.,  29  Wis.  454; 
Ellinwood  v.  City  of  Reedsburg,  91 
Wis.  131;  Parkersburg  Gas  Co.  v. 
City  of  Parkersburg,  30  W.  Va.  435; 
Petros  v.  City  of  Vancouver,  13 
Wash.  423.  The  issue  of  bonds 
for  the  construction  of  a  lighting 
plant  held  within  the  term  "gen- 
eral municipal  purposes"  as  used 
in  the  constitution.  See,  also,  30 
Am.  St.  Rep.  225-226. 

sse  Section  146. 

357  National  Foundry  &  Pipe  Works 
v.  Oconto  Water  Co.,  52  Fed.  29; 
Fergus  Falls  Water  Co.  T.  City  of 
Fergus  Falls,  65  Fed.  586;  Derby 
v.  Modesto,  104  Cal.  515;  Thomas  v. 
City  of  Grand  Junction,  13  Colo. 
App.  80;  City  of  Rome  v.  Cabot,  28 
Ga.  50;  Gold  v.  City  of  Peoria,  65 
111.  App.  602.  The  court  in  speak- 
ing of  the  contention  that  the  debt 
•was  for  expenses  incurred  in  pro- 
tecting the  municipal  health  and 
property  said:  "It  matters  not  that 
it  was  providing  for  a  necessary  pro- 
tection to  health  and  property  and 
a  current  expense;  the  city  could 
not  override  the  constitutional  bar- 
rier under  the  claim  of  meeting 
current  expenses  any  more  than  it 
could  create  a  debt  payable  in  the 


future."  Citing  City  of  Springfield 
v.  Edwards,  84  111.  626,  and  Prince 
v.  City  of  Quincy,  105  111.  138,  128 
111.  443. 

Button  v.  City  of  Aurora,  114  111. 
138;  Culbertson  v.  City  of  Fulton, 
127  111.  30;  Daily  v.  City  of  Colum- 
bus, 49  Ind.  169;  Smalley  v.  Yates, 
36  Kan.  519;  Daniels  v.  Long,  111 
Mich.  562;  Truelsen  v.  City  of  Du- 
luth,  61  Minn.  48;  Janeway  v.  City 
of  Duluth,  65  Minn.  292,  33  L.  R. 
A.  511;  State  v.  Babcock,  25  Neb. 
500;  Sweet  v.  City  of  Syracuse,  129 
N.  Y.  316,  reversing  60  Hun,  28,  14 
N.  Y.  Supp.  421;  Village  of  Ft.  Ed- 
ward v.  Fish,  156  N.  Y.  363;  Elyria 
Gas  &  Water  Co.  v.  City  of  Elyria, 
57  Ohio  St.  374;  Ackerman  v. 
Buchman,  109  Pa.  254;  Todd  v.  City 
of  Laurens,  48  S.  C.  395,  26  S.  E. 
682;  State  v.  Town  of  Newberry,  47 
S.  C.  418;  Winston  v.  Ft.  Worth 
(Tex.  Civ.  App.)  47  S.  W.  740. 

City  of  Austin  v.  Nalle,  85  Tex. 
520.  The  size  of  the  plant  is  not 
necessarily  limited  to  the  wants  of 
the  municipality  at  the  time  of  its 
construction,  and  where  one  was 
built  largely  in  excess  of  such  pres- 
ent needs,  the  issue  of  bonds,  it 
was  held,  would  not  be  restrained. 
Seymour  v.  City  of  Tacoma,  6  Wash. 
138;  Faulkner  v.  City  of  Seattle,  19 
Wash.  320;  Ellinwood  v.  City  of 
Reedsburg,  91  Wis.  131.  Where  au- 
thority is  granted  a  city  council  to 
build  waterworks  and  issue  bonds 


§  177 


ISSUANCE  OF  SECURITIES. 


401 


tract  a  floating  debt  or  when  specially  authorized  to  issue  nego- 
tiable bonds.  The  manner  of  the  exercise  of  such  power  is  usually 
discretionary,358  and  the  only  restriction  upon  it  seems  to  be  the 
limitation  found  in  a  constitutional  or  statutory  provision  fixing 
the  amount  of  debt  or  indebtedness  that  a  public  corporation  can 
legally  incur.359  In  some  states,  however,  special. provisions  are 

therefor,    the   manner   of   the   exer-  open    the    door    to    results    which 

else  of  such  authority  is  discretion-  would      be      disastrous."      Citizens' 

ary.  Water  Company  v.  Bridgeport   Hy- 

35s  Thomas  v.  City  of  Grand  June-  draulic   Co.,   55   Conn.   1;    Daily   v. 

tion,  13  Colo.  App.  80.     In  this  case  City  of  Columbus,  49  Ind.  169;  State 

the    statute   gave    the    municipality  v.  Caffery,  49  La.  Ann.  1152,  22  So. 

power  "to  purchase  or  erect  water-  756;    Moore   v.   City   of   Duluth,   74 

works,"    etc.,    and    the    claim    was  Minn.  105,  the  power,  however,  lim- 

made  that  the  use  of  the  word  "or"  ited  by  subsequent   election.     State 

precluded  a  city   from   doing  more  v.  Babcock,  25  Neb.  709. 

than  one  of  the  things  granted;  the  Painter    v.    City    of    Norfolk,    62 

court  said:     "The  primary  object  of  Neb.  330,  87  N.  W.  31.     A  contract 

the   statute   was   to   permit   the   in-  by    ordinance    with    a    waterworks 

habitants  of  towns  and  cities  to  se-  company  for  the  construction  of  a 

cure    an    adequate    supply    of    pure  waterworks  plant  with  the  reserved 

water,  a  paramount  net  essity  more  right  on  the  part  of  the  municipality 

important  than  all  other  public  util-  to  purchase   It  assuming  the  bond- 

ities    and    absolutely    necessary   for  ed  indebtedness  of  the  company,  was 

the  sustenance  of  life,  the  preserva-  held    void    as    incurring    a    bonded 

tion  of  health  and  the  protection  of  debt  in  violation  of   that  provision 

property.      This   being   the   case,   it  of   the    statute    prohibiting   the   in- 

is  to  be  presumed  that  the  legisla-  currment  of  a  bonded  debt  without 

ture    desired    to    invest    the    people  popular  vote. 

who  were  themselves  to  bear  the  New  York  &  R.  Cement  Co.  v. 
burdens  of  the  expense  with  every  Davis,  62  App.  Div.  577,  71  N.  Y. 
power  necessary  to  supply  this  im-  Supp.  185;  Town  of  Klamath  Falls 
perative  want.  The  legislature  it-  v.  Sachs,  35  Or.  325;  Ackerman  v. 
self  could  not  determine  and  fix  Buchman,  109  Pa.  254;  Duncan  v. 
upon  some  one  invariable  mode  or  City  of  Charleston,  60  S.  C.  532.  The 
manner  by  which  this  supply  was  Increase  of  bonded  Indebtedness 
to  be  obtained  for  the  obvious  rea-  without  submission  of  the  question 
sons  that  too  many  conditions  were  to  the  electors  of  the  city  held 
to  be  considered;  that  what  would  illegal  as  in  contravention  of  con- 
be  proper,  necessary  and  entirely  stitutional  provision  art.  8,  §  7.  City 
satisfactory  at  one  town  would  be  of  Brenham  v.  Brenbam  Water  Co., 
entirely  impracticable  in  another.  67  Tex.  542. 

*     *     *    If  it  were  the  intent  of  the  359  Buchanan  v.  City  of  Litchfield, 

legislature  to  give  to  the  word  'or'  102   U.   S.   278.     The   Interpretation 

the  meaning  contended  for  by  plain-  of  the   Illinois  Const,  art.   9,   §   12, 

tiff,  then  it  would  in  many  instances  "No   county,   city,   township,   school 

Abb.  Corp.— 26. 


402                                             POWERS.  §  177 

to  be  found  dividing  indebtedness  legally  incurrable  into  classes, 
one  of  which  is  the  contracting  of  obligations  for  the  especial 

purpose  of  supplying  a  public  corporation  and  its  inhabitants 
with  both  water  and  light.     Here  the  power  to  issue  negotiable 

bonds  is  limited  by  these  special  provisions.360 

; 

district  or  other  municipal  corpora-  114  U.  S.  190,  the  court  in  constru- 
tion  shall  be  allowed  to  become  in-  ing  the  same  provision  of  the  Illi- 
debted  in  any  manner  or  for  any  nois  constitution  use  the  following 
purpose  to  an  amount  including  ex-  language  which  is  strongly  approved 
isting  indebtedness  in  the  aggregate  and  commended  in  the  Ironwood 
exceeding  five  per  centum  on  the  Waterworks  case,  post:  "It  (the 
value  of  the  taxable  property  there-  city)  shall  not  become  indebted; 
in  to  be  ascertained  by  the  last  as-  shall  not  incur  any  pecuniary  lia- 
sessment  for  state  and  county  taxes  bility.  It  shall  not  do  this  in  any 
previous  to  the  incurring  of  such  in-  manner,  neither  by  bonds  nor  notes 
debtedness,"  was  at  issue  and  Jus-  nor  by  express  or  implied  promises, 
tice  Harlan  speaking  for  the  court  Nor  shall  it  be  done  for  any  pur- 
said:  "The  words  employed  are  pose  no  matter  how  urgent,  how 
too  explicit  to  leave  any  doubt  as  useful,  how  unanimous  the  wish. 
to  the  object  of  the  constitutional  There  stands  the  existing  indebted- 
restriction  upon  municipal  indebt-  ness  to  a  given  amount  in  relation 
edness.  The  purpose  of  its  framers  to  the  sources  of  payment  as  an 
beyond  all  question  was  to  with-  impassable  obstacle  to  the  creation 
hold  from  the  legislative  depart-  of  any  further  debt  in  any  manner 
ment  the  power  to  confer  upon  mu-  or  for  any  purpose  whatever.  If 
nicipal  corporations  authority  to  in-  this  prohibition  is  worth  anything, 
cur  indebtedness  in  excess  of  a  it  is  as  effectual  against  the  implied 
prescribed  amount.  The  authority  as  the  express  promise  and  is  as 
therefore,  conferred  by  the  act  of  binding  in  a  court  of  chancery  as 
April  15th,  1873,  to  incur  indebted-  a  court  of  law." 
ness  in  the  construction  and  main-  Ironwood  Water  Works  Co.  v. 
tenance  of  a  system  of  waterworks  City  of  Ironwood,  99  Mich.  454,  58 
could  have  been  lawfully  exercised  N.  W.  371;  State  v.  Town  of  Colum- 
by  a  city,  incorporated  town  or  bia,  111  Mo.  365,  20  S.  W.  90;  Vil- 
village,  only  when  its  liabilities  in-  lage  of  Hempstead  v.  Seymour,  34 
creased  by  any  proposed  new  indebt-  Misc.  92,  69  N.  Y.  Supp.  462;  South- 
edness,  would  be  within  the  consti-  erland  v.  Town  of  Goldsboro,  96  N 
tutional  limit.  No  legislation  could  C.  49;  Duke  v.  Brown,  96  N.  C.  127; 
confer  upon  a  municipal  corporation  Bassett  v.  City  of  El  Paso  (Tex. 
authority  to  contract  indebtedness  Civ.  App.)  28  S.  W.  554. 
which  the  constitution  expressly  seo  National  Bank  of  Commerce  v. 
declared  it  should  not  be  allowed  to  Town  of  Grenada,  41  Fed.  87.  "It 
Incur."  Citing,  Law  v.  People,  87  is  finally  insisted  by  the  learned 
111.  385,  and  Fuller  v.  City  of  Chi-  counsel  for  the  defendant  that  sec- 
cago,  89  111.  282.  tion  1,  art.  2,  of  the  state  constitu- 
In  City  of  Litchfield  v.  Ballou.  tion  prohibits  in  strong  terms  such 


§  178 


ISSUANCE    OF    SECURITIES. 


403 


§  178.    Railway  aid  securities. 

The  reasons  and  the  principle  stated  in  a  preceding  section581 
in  regard  to  the  incurrment  of  indebtedness  or  the  granting  of  aid 
by  public  corporations  for  this  purpose,  apply  to  the  issue  of  ne- 
gotiable bonds.  The  principle  is  clearly  established  that  where 
the  legal  authority  exists  public  corporations  may  issue  negotiable 
bonds  for  the  purpose  of  constructing  or  aiding  in  the  construction 
of  lines  of  railway  through  or  adjacent  to  them.  A  few  of  the 
many  authorities  will  be  cited  in  the  note.888  Such  use  of  public 


municipal  corporations  from  lend- 
ing their  credit  in  any  form  in  aid 
of  any  individual,  association  or 
corporation  whatsoever;  but  by  sec- 
tion 8  of  the  said  article  special  ex- 
ception is  made  in  favor  of  the 
power  by  such  corporations  to  create 
debts  for  the  purpose  of  supplying 
themselves  with  water  for  irriga- 
tion, for  suppressing  fires,  and  for 
.domestic  use.  There  seems  to  be  no 
limit  to  the  extent  of  the  debts 
which  may  be  incurred  for  such  pur- 
poses." 

Grace  v.  Town  of  Hawkinsville, 
101  Ga.  553,  28  S.  E.  1021;  State 
v.  Caffery,  49  La.  Ann.  1152,  22  So. 
756;  Woodbridge  v.  City  of  Duluth, 
57  Minn.  256,  construing  Sp.  Laws 
1891,  c.  55,  §  35;  Sweet  v.  City  of 
Syracuse,  129  N.  Y.  316,  27  N.  E. 
1081,  29  N.  E.  289,  reversing  60  Hun, 
28,  14  N.  Y.  Supp.  421;  Faulkner  v. 
City  of  Seattle,  19  Wash.  320. 

301  Section  147. 

sea  Town  of  Queensbury  v.  Culver, 
86  U.  S.  (19  Wall.)  83;  Nugent  v. 
Putnam  County  Sup'rs,  86  U.  S. 
(19  Wall.)  241;  Cass  County  v.  GI1- 
lett,  100  U.  S.  585;  Bates  County  v. 
Winters,  112  U.  S.  325. 

Barnum  v.  Town  of  Okolona,  148 
U.  S.  393,  where  the  court  said, 
"that  municipal  corporations  have 
no  power  to  issue  bonds  in  aid  of  a 
railroad,  except  by  legislative  per- 


mission; that  the  legislature  in 
granting  permission  to  a  munici- 
pality to  issue  its  bonds  In  aid  of 
a  railroad  may  impose  such  condi- 
tions as  it  may  choose;  and  that 
such  legislative  permission  does  not 
carry  with  it  authority  to  execute 
negotiable  bonds  except  subject  to 
the  restrictions  and  conditions  of 
the  enabling  act." 

Provident  Life  &  Trust  Co.  v.  Mer- 
cer County,  170  U.  S.  593;  Wilkes 
County  Com'rs  v.  Coler,  113  Fed. 
725;  Ex  parte  Selma  &  G.  R.  Co., 
45  Ala.  696;  Hancock  v.  Chicot  Coun- 
ty, 32  Ark.  575;  Higgins  v.  City  of 
San  Diego  (Cal.)  45  Pac.  824;  So- 
ciety for  Savings  v.  City  of  New 
London,  29  Conn.  174;  Columbia 
County  Com'rs  v.  King,  13  Fla.  451; 
Powers  v.  Inferior  Ct.  of  Dougherty 
County,  23  Ga.  65;  Town  of  Middle- 
port  v.  Aetna  Life  Ins.  Co.,  82  111. 
562;  Hutchinson  v.  Self,  153  111. 
542;  Delaware  County  Com'rs  v.  Mc- 
Clintock,  51  Ind.  325;  Dubuque  Coun- 
ty v.  Dubuque  &  P.  R.  Co.,  4  G. 
Greene  (Iowa)  1;  Chicago,  K.  & 
W.  R.  Co.  v.  Osage  County  Com'rs, 
38  Kan.  597,  16  Pac.  828;  Daviesa 
County  Ct.  v.  Howard,  13  Bush 
(Ky.)  101;  Sparks  v.  Bohannon,  22 
Ky.  L.  R.  1710,  61  S.  W.  260;  Knox 
v.  City  of  Baton  Rouge,  36  La.  Ann. 
427;  Stevens  v.  Inhabitants  of  An- 
son,  73  Me.  489;  Baltimore  &  D.  P. 


404  POWERS.  §  179 

moneys  is  held  a  public  purpose  within  the  meaning  of  that  phrase 
as  applied  to  the  expenditure  of  moneys  raised  through  the  impo- 
sition of  taxes  upon  taxable  interests.  It  is  useless  in  view  of 
the  settled  law  to  discuss  the  advisability  or  expediency  of  this 
rule.  Public  corporations  certainly  have  legitimate  purposes  suf- 
ficient to  employ  all  their  available  means  without  resorting  to 
such  questionable  uses.  The  consolidation  or  reorganization  of 
the  railway  company  originally  intended  by  the  public  corpo- 
ration as  the  party  to  whom  bonds  or  aid  was  to  be  given  or  the 
fact  of  its  reorganization  does  not  usually  affect  the  validity  of 
railway  aid  bonds  issued  under  legal  authority.363 

§  179.    Construction  of  drains  and  sewers. 

The  construction  of  a  system  of  ditches  as  a  means  of  drainage 
or  as  affording  facilities  for  a  supply  of  water  for  domestic 
uses  or  the  irrigation  of  lands,  or  the  construction  of  a  sewage 
system,  is  considered  such  a  public  use  of  funds  as  to  authorize 
the  issue  of  negotiable  bonds,364  the  purpose  being  either  to  pre- 
11.  Co.  v.  Pumphrey,  74  Md.  86,  21  234;  First  Nat.  Bank  of  St.  Johns- 
Atl.  559;  Portage  County  Sup'rs  v.  bury  v.  Town  of  Concord,  50  Vt. 
Wisconsin  Cent.  R.  Co.,  121  Mass.  257;  Powell  v.  Brunswick  County 
460;  State  v.  Town  of  Clark,  23  Sup'rs,  88  Va.  707,  14  S.  E.  543; 
Minn.  422;  New  Orleans,  St.  L.  &  West  Virginia  &  P.  R.  Co.  v.  Harri- 
C.  R.  Co.  v.  McDonald,  53  Miss.  240;  son  County  Ct.,  47  W.  Va.  273,  34 
State  v.  Mississippi  River  Bridge  S.  E.  786;  Bushnell  v.  Beloit,  10 
Co.,  134  Mo.  321,  35  S.  W.  592;  Wis.  195;  Crogster  v.  Bayfield  Coun- 
Hallenbeck  v.  Halm,  2  Neb.  377;  ty,  99  Wis.  1.  Decisions  collected  in 
Midland  Tp.  T.  Gage  County  Board,  31  Am.  &  Eng.  Corp.  Cas.  661,  669 
37  Neb.  582;  Gibson  v.  Mason,  5  and  682,  59  Am.  Dec.  782-790,  ana 
Nev.  283;  Perry  v.  Keene,  56  N.  68  Am.  Dec.  694-696. 
H.  514;  Coler  v.  Santa  Fe  County  ses  Ray  County  v.  Vansycle,  96  TJ. 
Com'rs,  6  N.  M.  88,  27  Pac.  619;  S.  675;  City  of  Columbus  v.  Den- 
People  v.  Henshaw,  61  Barb.  (N.  Y.)  nison,  69  Fed.  58;  Morrill  v.  Smith 
409;  Wilkes  County  Com'rs  v.  Call,  County,  89  Tex.  529,  36  S.  W.  56. 
123  N.  C.  308;  Glenn  v.  Wray,  126  But  see  to  the  contrary,  Harshma* 
N.  C.  730;  State  v.  Village  of  Per-  v.  Bates  County,  3  Dill.  150,  Fed. 
rysburg,  14  Ohio  St.  472;  Pittsburg  Cas.  No.  6,148. 

&  S.  R.  Co.  v.  Allegheny  County,  79  364  Fallbrook  Irr.  Dist.  v.  Bradley, 

Pa.   210;    Coleman   v.   Broad    River  164  U.  S.  112,  17  Sup.  Ct.  56;   Shel- 

Tp.,   50   S.   C.   321;    Nelson   v.   Hay-  ley  v.   St.   Charles  County,  17  Fed. 

wood   County,   87   Tenn.   781,   11  S.  909;    Perkins   County  v.   Graff,   114 

W.   885,  4  L.  R.  A.  648;   Austin   v.  Fed.    441;    Murphy   v.    City   of  Wil- 

Gulf,    C.   &    S.   F.   R.    Co.,    45    Tex.  mington,  6  Houst.   (Del.)  108;  Kim- 


§    180  ISSUANCE    OF    SECURITIES.  405 

serve  the  health  of  the  people  by  supplying  proper  sewerage  and 
drainage  systems  or  to  increase  the  area  of  tillable  and  arable 
lands,  both  considered  governmental  ends. 

§  180.    The  construction  of  bridges. 

By  many  authorities  it  is  considered  an  end  or  aim  of  govern- 
ment to  furnish  facilities  for  economical  and  rapid  communica- 
tion between  the  different  parts  of  a  state.  This  would  include 
the  power  to  construct  or  aid  in  the  construction  of  highways, 
and,  as  a  part  of  such  highways,  bridges  crossing  streams 
or  other  impassable  places.  The  authority  is  generally  derived 
from  some  constitutional  provision  authorizing  the  state  or  its 
subordinate  agencies  within  prescribed  limitations  to  construct 
works  of  "internal  improvement."  The  question  whether  a  cer- 
tain enterprise  or  the  construction  of  a  certain  improvement  is  a 
work  of  "internal  improvement"  such  as  to  justify  the  expendi- 
ture of  public  moneys  is  generally  decided  by  the  benefit  or  ad- 
vantage to  be  derived  by  the  people  or  the  public  at  large  from 
such  enterprise  or  improvement.  The  question  of  its  cost  or  ex- 
tent does  not  determine  its  nature.  If  the  work  is  designed  to 
effect  the  end  suggested  above  and  results  in  a  benefit  or  advan- 
tage to  the  community  at  large  without  regard  to  the  benefits 
accruing  to  individuals  it  will  be  clearly  characterized  as  a  work 
of  "internal  improvement"  within  the  meaning  of  the  constitu- 
tional phrase.  The  construction  of  a  bridge  being  thus  a  public 
use  of  public  moneys  so  far  as  the  purpose  of  such  use  is  con- 
cerned, a  public  corporation  possesses  the  legal  right  to  issue 

ball  v.  Reclamation  Fund  Com'rs,  45  45  Neb.  798;  Paxton  &  H.  Irr.  Canal 
Cal.  344;  Hughson  v.  Crane,  115  &  Land  Co.  v.  Farmers'  &  M.  Irr. 
Cal.  404;  Clapp  v.  City  of  Hart-  &  Land  Co.,  45  Neb.  884,  29  L.  R. 
ford,  35  Conn.  66;  Greeley  v.  City  A.  853;  Alfalfa  Irr.  Dist.  v.  Collins, 
of  Jacksonville,  17  Fla.  174;  Lussem  46  Neb.  411;  Cummings  v.  Hyatt, 
v.  Sanitary  Dist.  of  Chicago,  192  111.  54  Neb.  35,  74  N.  W.  411;  Tide- 
404,  61  N.  E.  544;  City  of  Atchison  water  Co.  v.  Coster,  18  N.  J.  Eq. 
v.  Price,  45  Kan.  296,  25  Pac.  605;  (3  C.  E.  Greene)  519;  Robinson  v. 
City  of  Louisville  v.  Board  of  Park  City  of  Goldsboro,  122  N.  C.  211; 
Com'rs,  112  Ky.  409,  65  S.  W.  860;  Cleveland  v.  City  Council  of  Spar- 
Town  of  New  Iberia  v.  New  Iberia  &  tanburg,  54  S.  C.  83,  31  S.  E.  871; 
B.  C.  Drainage  Dist.,  106  La.  651;  Holler  v.  City  of  Galveston,  23  Tex. 
State  v.  Babcock,  25  Neb.  709;  Clark  Civ.  App.  693;  Johnson  v.  City  of 
v.  Cambridge  &  A.  Irr.  &  Imp.  Co.,  Milwaukee,  88  Wis.  383. 


406 


POWERS. 


180 


negotiable  bonds  where  the  cost  of  construction  is  in  excess  of 
the  funds  immediately  available  in  the  corporate  treasury  for 
such  purpose  controlled  by  constitutional  provision  relative  to 
incurring  debts.365  The  authority  in  common  with  the  issue  of 
negotiable  bonds  for  other  purposes  must,  however,  expressly 
exist  in  order  to  be  available,  and  all  of  the  formalities  and  lim- 
itations as  required  by  law  must  be  complied  with  to  render  them 
valid.368 


sea  Ritchie  v.  Franklin  County,  89 
U.  S.  (22  Wall.)  67;  Dodge  County 
Com'rs  v.  Chandler,  96  U.  S.  205. 
A  bridge  considered  a  work  of  "in- 
ternal improvement"  even  though 
tolls  be  charged  for  its  use.  "The 
bridge  being  an  internal  improve- 
ment the  precinct  had  the  power  to 
aid  in  its  construction.  This  it  re- 
solved to  do  and  on  this  resolve  it 
founded  the  issue  of  the  bonds. 
Whether  it  should  get  any  consid- 
eration from  the  public  in  return 
was  a  question  in  which  the  pur- 
chaser of  the  bond  is  not  concerned. 
*  *  *  The  toll  question  was  an 
incidental  one  *  *  *  and  cannot 
affect  the  issue  of  the  bonds." 

United  States  v.  Dodge  County 
Com'rs,  110  U.  S.  156;  Comanche 
County  v.  Lewis,  133  U.  S.  198; 
City  of  South  St.  Paul  v.  Lamprecht 
Bros.  Co.,  88  Fed.  449;  City  Council 
of  Montgomery  v.  Montgomery  &  W. 
Plank-Road  Co.,  31  Ala.  76;  Town 
of  Stites  v.  Wiggins  Ferry  Co.,  97 
111.  App.  157.  Where  statutory  au- 
thority authorizes  the  issue  of  bonds 
to  build  bridges,  public  officials  can- 
not issue  them  for  the  construction 
of  a  road.  Mullarky  v.  Town  of 
Cedar  Falls,  19  Iowa,  21;  Barber 
County  Com'rs  v.  Smith,  48  Kan. 
331,  29  Pac.  565;  Salt  Creek  Tp.  v. 
King  Iron  Bridge  &  Mfg.  Co.,  51 
Kan.  520. 

City  of  Cumberland  v.  Magruder, 
34  Mr!.  381.  The  power  given  to 


issue  bonds  for  the  building  of  a 
bridge  should  be  construed  in  subor- 
dination to  a  provision  of  the  city 
charter,  and  where  this  restricts  the 
power  of  the  municipality  to  pledge 
its  credit  beyond  a  limited  sum  the 
act  authorizing  the  construction  of 
a  bridge  through  the  issue  of  bonds 
will  not  be  held  to  repeal  the  char- 
ter provision. 

Tillotson  v.  City  of  Saginaw,  94 
Mich.  240;  Naegely  v.  City  of  Sag- 
inaw, 101  Mich.  532;  Bradley  v. 
Franklin  County,  65  Mo.  638,  fol- 
lowing Steines  v.  Franklin  County, 
48  Mo.  167,  and  Ritchie  v.  Franklin 
County,  89  U.  S.  (22  Wall.)  67; 
Union  Pac.  R.  Co.  v.  Colfax  County 
Com'rs,  4  Neb.  450;  Clark  v.  Day- 
ton, 6  Neb.  192;  Follmer  v.  Nuckolls 
County  Com'rs,  6  Neb.  204;  State 
v.  Keith  County,  16  Neb.  508;  State 
v.  Babcock,  23  Neb.  179,  36  N.  W. 
474. 

Fremont  Bldg.  Ass'n  v.  Sherwin, 
6  Neb.  48.  An  issue  of  bonds  au- 
thorized although  the  bridge  to  be 
constructed  can  be  used  only  on  the 
payment  of  tolls.  Town  of  Kirk- 
wood  v.  Newburg,  45  Hun,  323,  122 
N.  Y.  571;  People  v.  Kelly,  5  Abb. 
N.  C.  (N.  Y.)  383;  McKethan  v 
Cumberland  County  Com'rs,  92  N. 
C.  243;  Burnett  v.  Maloney,  97  Tenn. 
697,  34  L.  R.  A.  541;  Mitchell  Coun- 
ty v.  City  Not.  Bank,  91  Tex.  361. 

'as  Berlin  Iron  Bridge  Co.  v.  City 
of  San  Antonio,  62  Fed.  882.  Where 


§  181 


ISSUANCE    OF    SECURITIES. 


407 


§  181.    The  erection  of  public  buildings. 

To  carry  on  the  various  branches  of  government,  public  build- 
ings are  necessary  for  use  by  public  officials  in  performing  their 
duties  and  in  caring  for  and  preserving  the  public  records.  Pub- 
lic buildings  are  also  necessary  to  house  and  properly  care  for 
the  indigent,  infirm  and  defective,  and  control  the  criminal 
classes,  each  proper  functions  of  government.  A  system  of  pub- 
lic education  is  universally  conceded  to  be  one  of  the  fundamen- 
tal aims  of  government,  and  structures  are  necessary  that  this  be 
properly  accomplished.  Buildings  for  all  these  purposes  are  in- 
dispensable that  the  ends  for  which  government  is  organized  be 
successfully  carried  out.  The  power  of  the  state  may  go  farther 
and  authorize  the  construction  of  buildings  for  use  in  the  educa- 
tion and  development  of  the  mechanical,  literary  and  artistic  tend- 
encies of  a  community.  The  power  therefore  clearly  exists  in  a 
public  corporation  when  specially  authorized  by  law  to  issue  ne- 
gotiable bonds  for  the  construction  of  state  capitols,  county  or  pub- 
lic buildings,367  court  houses,  jails  and  penitentiaries,368  poorhous- 


no  provision  was  made  as  required 
by  the  Const,  of  Tex.  art.  11,  §§  5 
and  7,  for  a  sinking  fund  at  the 
time  of  the  creation  of  the  debt,  the 
issue  of  bonds  considered  void.  Bra- 
zoria  County  v.  Youngstown  Bridge 
Co.  (C.  C.  A.)  80  Fed.  10;  Rondot 
v.  Rogers  Tp.  (C.  C.  A.)  99  Fed. 
202,  and  cases  cited  in  opinion  of 
Mr.  Justice  Taft;  State  v.  Williams, 
68  Conn.  131,  48  L.  R.  A.  465; 
Berlin  Iron  Bridge  Co.  v.  Wagner, 
57  Hun,  346,  10  N.  Y.  Supp.  840; 
Mitchell  County  v.  City  Nat.  Bank, 
91  Tex.  361,  43  S.  W.  880,  reversing 
15  Tex.  Civ.  App.  172,  39  S.  W.  628; 
State  v.  Wood  County,  72  Wis.  629, 
40  N.  W.  381. 

Wagner  v.  Milwaukee  County,  112 
Wis.  601,  88  N.  W.  577.  An  act 
authorizing  the  building  of  viaducts 
which  applies  to  but  one  county  in 
the  state  was  held  local  and  special 
in  this  case  and  in  violation  of 
Const,  art.  4,  §  18. 


397McHugh  v.  City  ft  County  of 
San  Francisco,  132  Cal.  381,  64  Pac. 
570;  State  v.  Callehan,  1  Ind.  147; 
Schneck  v.  City  of  Jeffersonville, 
152  Ind.  204,  52  N.  E.  212;  Myers  v. 
City  of  Jeffersonville,  145  Ind.  431, 
44  N.  E.  452.  Bonds  issued  to  se- 
cure moneys  borrowed  for  the  pur- 
pose of  defraying  the  expenses  of 
litigation  involving  the  removal  of 
a  county  seat  held  invalid. 

Taggart  v.  City  of  Detroit,  71 
Mich.  92,  citing  with  approval  Fa- 
zende  v.  City  of  Houston,  34  Fed. 
95.  Bonds  in  this  case  used  for 
the  construction  of  a  central  pub- 
lic market.  In  a  lengthy  and  ex- 
ceedingly well  written  opinion  in 
which  there  is  much  law  relating 
to  markets  in  general  the  court 
said:  "It  may  be  true  that  the 
city  would  be  obliged  at  maturity 
to  pay  the  bonds  at  all  events 
whether  receiving  income  enough 
or  not.  But  it  is  equally  true  that 


408 


POWERS. 


es,  institutions  for  the  feeble-minded  or  the  insane,369  school  build- 
ings, universities370  and  libraries.     It  is  as  true  with  bonds  issued 


It  would  be  a  fraud  on  the  taxpay- 
ers and  a  violation  of  the  act  of 
the  legislature,  to  relinquish  the 
fund  set  apart  for  that  purpose 
which  was  made  a  trust  fund  and 
charge  its  value  as  a  general  city 
charge.  The  power  to  pay  these 
bonds  by  taxation  was  not  meant 
to  be  granted  unless  the  other 
means  failed.  *  *  *  The  argu- 
ment that  the  bonds  are  actually 
paid  is  fallacious.  The  city  sink- 
ing fund  is  in  law  a  fund  which 
has  value  in  securities  and  the  mar- 
ket bonds  are  as  much  property  as 
if  they  were  government  bonds. 
They  can  only  be  exchanged  for  ac- 
tual money  equivalents.  A  cancel- 
lation of  these  bonds  would  be  a 
withdrawal  for  market  purposes  of 
the  same  amount  of  funds  belong- 
ing to  other  purposes.  *  *  * 
Unless  the  legislature  shall  see  fit 
to  provide  otherwise  there  can  be 
no  step  taken  to  use  the  trust 
property  for  other  purposes,  without 
a  direct  violation  of  legal  duty  and 
it  cannot  be  allowed."  See,  also, 
authorities  cited  21  Am.  &  Eng. 
Enc.  of  Law  (2d  Ed.)  40. 

sea  Alabama  G.  S.  R.  Co.  v.  Reed, 
124  Ala.  253,  27  So.  19;  'Linn  Coun- 
ty Com'rs  v.  Snyder,  45  Kan.  636, 
and  cases  cited  in  opinion  of  Judge 
Green;  Chaska  Co.  v.  Carver  Coun- 
ty Sup'rs,  6  Minn.  204  (Gil.  130); 
Nininger  v.  Carver  County  Com'rs, 
10  Minn.  133  (Gil.  106);  Goodnow 
r.  Ramsey  County  Com'rs,  11  Minn. 
31  (Gil.  12);  Cushman  v.  Carver 
County  Com'rs,  19  Minn.  295  (Gil. 
252);  Rogers  v.  Le  Sueur  County, 
57  Minn.  434;  Catron  v.  La  Fayette 
County,  106  Mo.  659,  17  S.  W.  577; 
Dawson  County  Com'rs  v.  McNamar, 


10  Neb.  276;  State  v.  Lincoln  Coun- 
ty Com'rs,  18  Neb.  283;  People  v. 
Oneida  County  Sup'rs,  68  App.  Div. 
650,  74  N.  Y.  Supp.  1142;  Robert- 
son v.  Breedlove,  61  Tex.  316. 

369Keyes  v.  St.  Croix  County,  108 
Wis.  136,  83  N.  W.  637.  The  court 
say:  "The  situation  is  not  differ- 
ent in  principle  from  that  present- 
ed to  this  court  in  Oconto  City  Wa- 
ter Supply  Co.  v.  City  of  Oconto, 
105  Wis.  76,  where  it  was  held  that 
subsequent  authority  to  a  city  to 
contract  for  a  water  supply  was  not 
restrained  by  the  pre-existing  lim- 
itation in  its  charter  upon  taxation. 
We  conclude  therefore,  that  the 
bonds  issued  for  a  county  insane 
asylum  are  not  to  be  considered 
within  the  limitation  of  1%  per  cent 
prescribed  by  section  658."  (This 
section  of  the  statute  limits  the  is- 
suing of  bonds  for  county  buildings 
to  1%  per  cent  of  the  assessed  valu- 
ation.) 

370  Board  of  Education  of  Pierre 
v.  McLean,  106  Fed.  817;  Wetmore 
v.  City  of  Oakland,  99  Cal.  146. 
Sherlock  v.  Village  of  Winnetka,  68 
111.  530.  Bonds  issued  for  the  pur- 
pose of  building  dormitory  or  board- 
ing house  for  use  in  connection 
with  public  school  buildings  held 
not  authorized  by  law.  But  see 
City  of  Emporia  v.  Partch,  21  Kan. 
202. 

State  v.  City  of  Terre  Haute,  87 
Ind.  212;  Williams  v.  Town  of  Al- 
bion, 58  Ind.  329;  Taylor  v.  Brown- 
field,  41  Iowa,  264;  School  Dist.  No. 
39  v.  Sullivan,  48  Kan.  624;  Board 
of  Education  of  Topeka  v.  Welch,  51 
Kan.  792,  33  Pac.  654;  Com.  T, 
Louisville  &  N.  R.  Co.,  17  Ky.  L.  R. 
991,  33  S.  W.  204;  Revell  v.  City  of 


182 


ISSUANCE    OF    SECURITIES. 


409 


for  the  purposes  above  stated  as  those  issued  for  other  purposes 
that  special  authority  must  exist  for  the  incurring  of  indebted- 
ness in  this  precise  manner.  The  application  of  the  principle 
stated  in  the  preceding  sections  that  the  power  to  issue  bonds 
must  be  expressly  given  and  never  implied  is  not  relaxed,  and  we 
consequently  find  in  the  eases  many  instances  of  bonds  being  held 
invalid  or  void  not  because  of  the  contemplated  use  of  their  pro- 
ceeds but  on  account  of  the  absence  of  authority  or  the  failure  to 
follow  the  conditions  precedent  to  a  valid  issue  as  plainly  ex- 
pressed in  the  written  law.371 

§  182.    For  making  local  improvements. 

The  use  of  public  moneys  for  the  laying  out  or  improvement  of 
streets372  and  parks,373  or  the  construction  of  public  works  not 


Annapolis,  81  Md.  1,  31  Atl.  695; 
State  v.  School  Dist.  No.  9,  10  Neb. 
544;  Pierce,  Butler  &  Pierce  Mfg. 
Co.  v.  Bleckwenn,  131  N.  Y.  570; 
State  v.  Bacon,  31  S.  C.  120,  9  S.  E. 
765. 

City  of  Waxahachie  v.  Brown,  67 
Tex.  519,  4  S.  W.  207.  Tex.  Rev. 
St.  art.  3783,  authorizes  the  board  of 
aldermen  to  pass  such  ordinances 
as  may  be  necessary  to  establish 
and  maintain  free  schools,  purchase 
building  sites  and  construct  school 
houses.  The  court  held  that  this 
authority  was  not  sufficiently  broad 
to  warrant  the  purchase  of  school 
buildings  and  issue  bonds  in  pay- 
ment. Lafebre  v.  Board  of  Educa- 
tion of  Superior,  81  Wis.  660. 

37i  Francis  v.  Howard  County,  50 
Fed.  44,  where  the  cases  are  ex- 
amined and  many  of  them  discussed 
by  Judge  Maxey;  Ashuelot  Nat. 
Bank  v.  School  Dist.  No.  7  (C.  C.  A.) 
56  Fed.  197,  affirming  41  Fed.  514, 
and  following  Brenham  v.  German 
American  Bank,  144  U.  S.  173;  Mc- 
mullen  v.  Ingham  Circ  uit  Judge, 
102  Mich.  608,  61  N.  W.  260;  Rich- 
ardson v.  McReynolds,  114  Mo.  641, 


21  S.  W.  901;  State  v.  Sherman 
County  Com'rs,  31  Neb.  465,  48  N. 
W.  146,  following  State  v.  School 
Dist.  No.  4,  16  Neb.  182;  Tukey  v. 
City  of  Omaha,  54  Neb.  370,  74  N. 
W.  613.  Field  v.  City  of  Bayonne, 
49  N.  J.  Law,  308,  8  Atl.  114.  School 
houses  not  included  in  the  expres- 
sion "public  buildings."  Nolan 
County  v.  State,  83  Tex.  182,  17  S. 
W.  823;  Noel  Young  Bond  &  Stock 
Co.  v.  Mitchell  County,  21  Tex.  638, 
54  S.  W.  284;  Burnham  v.  City  of 
Milwaukee,  98  Wis.  128,  73  N.  W. 
1018. 

372  Hitchcock  v.  City  of  Galveston, 
96  U.  S.  341.  "Tue  learned  (trial) 
judge  held  the  contract  inoperative 
because  by  it  the  city  agreed  to  pay 
for  the  work  to  be  done  and  the 
contractors  agreed  to  receive  in  pay- 
ment at  par,  bonds  of  the  city  de- 
nominated 'Galveston  city  bonds 
for  sidewalk  improvement.'  *  *  * 
The  issue  of  such  bonds  was  held 
by  the  court  to  be  transgressive 
of  the  power  of  the  city  and  the 
ruling  was  thought  to  be  supported 
by  the  decision  of  this  court  in  the 
case  of  Police  Jury  v.  Britton,  82 


410 


POWERS. 


282 


coming  within  the  classes  noted  in  the  preceding  section,374  is 
considered  a  public  use  for  which  public  corporations  may  when 
authorized  by  the  legislature  loan  their  credit  or  issue  negotiable 
bonds  for  the  immediate  payment  of  their  cost.  The  question  of 
including  such  bonds  as  a  part  of  the  corporate  indebtedness  in 
determining  whether  this  has  exceeded  the  legal  limitation  has 
been  considered  in  a  preceding  section,  as  well  as  the  manner  of 
their  payment. 


U.  S.  (15  Wall.)  566,  and  The 
Mayor  v.  Ray,  86  U.  S.  (19  Wall.) 
468.  In  the  view  we  shall  take  of 
the  present  case,  it  is,  perhaps,  not 
necessary  to  inquire  whether  those 
cases  justify  the  court's  conclusion 
for  if  it  were  conceded  that  the  city 
had  no  lawful  authority  to  issue  the 
bonds  described  in  the  ordinance 
and  mentioned  in  the  contract  it 
does  not  follow  that  the  contract 
was  wholly  illegal  and  void  or  that 
the  plaintiffs  have  no  right  under 
it.  *  *  *  It  matters  not  that 
the  promise  was  to  pay  in  a  manner 
not  authorized  by  law.  If  payments 
cannot  be  made  in  bonds  because 
their  issue  is  ultra  vires,  it  would 
be  sanctioning  rank  injustice  to 
hold  that  payment  need  not  be  made 
at  all.  Such  is  not  the  law.  The 
contract  between  the  parties  is  in 
force,  so  far  as  it  is  lawful. 
*  *  *  At  most  the  issue  was  un- 
authorized. At  most  there  was  a 
defect  of  power.  The  promise  to 
give  bonds  to  the  plaintiffs  in  pay- 
ment of  what  they  undertook  to  do 
was,  therefore,  at  farthest  only  ul- 
tra vires;  and,  in  such  a  case, 
though  specific  performance  of  an 
engagement  to  do  a  thing  trans- 
gressive  of  its  corporate  power  may 
not  be  enforced,  the  corporation  can 
be  held  liable  on  its  contract.  Hav- 
ing received  benefits  at  the  expense 
of  the  other  contracting  party,  it 


cannot  object  that  it  was  not  em- 
powered to  perform  what  it  prom- 
ised in  return  in  the  mode  in  which 
it  promised  to  perform."  Burling- 
ton Sav.  Bank  v.  City  of  Clinton, 
111  Fed.  439;  City  of  Redondo 
Beach  v.  Gate,  136  Cal.  146,  68  Pac. 
586;  German  Sav.  &  Loan  Soc.  v. 
Ramish,  138  Cal.  120,  69  Pac.  89,  70 
Pac.  1067;  Porter  v.  City  of  Tipton, 
141  Ind.  347,  40  N.  E.  802;  City  of 
Covington  v.  Nadaud,  20  Ky.  L.  R. 
151,  45  S.  W.  498;  State  v.  Benton, 
25  Neb.  756,  41  N.  W.  953,  1068; 
Mittag  v.  Borough  of  Park  Ridge, 
61  N.  J.  Law,  151,  38  Atl.  750; 
Foley  v.  City  of  Hoboken,  61  N.  J. 
Law,  478,  38  Atl.  833;  Moses  v.  City 
of  Key  West,  157  N.  Y.  689. 

373  Fritz  v.  City  &  County  of  San 
Francisco,  132  Cal.  373,  64  Pac. 
566,  followed  in  McHugh  v.  City  ft 
County  of  San  Francisco,  132  Cal. 
381,  64  Pac.  570;  People  v.  Brislin, 
80  111.  423;  Boston  Water-Power  Co. 
v.  City  of  Boston,  143  Mass.  546,  10 
N.  E.  318;  Choate  v.  City  of  Buffalo, 
167  N.  Y.  597,  60  N.  E.  1108,  af- 
firming 39  App.  Div.  379,  57  N.  Y. 
Supp.  383;  Johnson  v.  City  of  Mil- 
waukee, 88  Wis.  383. 

37*  City  of  Gladstone  Y.  Throop 
(C.  C.  A.)  71  Fed.  341;  McHugh  v. 
City  &  County  of  San  Francisco, 
132  Cal.  381,  64  Pac.  570;  State  v. 
Ames,  87  Minn.  23,  91  N.  W.  18; 
Wheeler  v.  City  of  Plattsmouth,  7 


§   183  ISSUANCE    OF    SECURITIES.  411 

The  rule  seems  to  be  clearly  established  that  where  the  statute 
provides  for  the  issuing  of  bonds  for  a  specified  purpose  the  pro- 
ceeds cannot  be  used  for  any  other,  though  closely  related  or  con- 
nected in  its  nature.376 

§  183.    Internal  improvements. 

As  distinguished  from  the  making  of  local  improvements,  which 
is  the  term  usually  applied  to  improvements  made  by  municipal 
corporations  proper,  we  have  the  construction  or  the  aiding  in  the 
construction  of  works  of  internal  improvement,  the  phrase  usually 
applied  to  those  works  of  general  improvement  made  by  the  state 
itself  or  public  quasi  corporations  in  the  exercise  under  lawful 
authority  of  their  governmental  duties. 

In  pursuing  a  broad  and  liberal  policy,  the  legislature  or  the 
people  of  the  state  acting  in  constitutional  convention  may  de- 
clare certain  enterprises  works  of  internal  improvement  which 
without  such  characterization  would  ordinarily  be  deemed  pri- 
vate enterprises.  Where  the  business  carried  on  by  such  enter- 
prises is  of  a  public  necessity  or  results  in  a  greater  advantage  or 
benefit  to  the  public  than  ordinary  commercial  or  industrial  en- 
terprises, the  courts  will  sustain  the  character  given  to  them  by 
legislative  or  constitutional  enactment.  Under  this  principle  we 
have  the  declaration  that  water  grist-mills  are  to  be  regarded  as 
works  of  internal  improvement  for  the  aiding  or  construction  of 
which  the  public  corporation  may  issue  negotiable  bonds.379 

Neb.     270;      People     v.     Gravesend  STB  Burlington   Tp.  v.   Beasley,   94 

Sup'rs,    154    N.    Y.    381;    Hooker    v.  U.    S.    310.     Mr.    Justice    Hunt    dis- 

Town  of  Greenville,  131  N.  C.  472,  cusses   what   are   internal   improve- 

42  S.  E.  141.    In  this  case  the  stat-  ments  for  which  bonds  may  be  is- 

ute  giving  a  municipality  authority  sued  by  a  municipality.     In  part  he 

to     issue    bonds    for    improvement  says:     "A  state  house  is  an  internal 

purposes  was  held   unconstitutional  improvement  as   is  a  county   court 

as   having  been  passed   without  re-  house,     a    jail    or    a    penitentiary 

cording   of    the   yeas   and    nays   on  (Leavenworth     County     Com'rs     v. 

either  the  second  or  third  reading  Miller,  7   Kan.   479)    as  much  as  a 

in  the  house.  railroad,    a    canal    or   a   bridge.     A 

375  state  v.   Benton,   25   Neb.   756,  mill  run  by  water  is  declared  to  be 

41  N.  W.  953,  1068.     District  bonds  an    internal    improvement    by    the 

authorized   for  curbing  and   gutter-  statute  we  are  considering.     A  ferry 

ing  streets  cannot  be  issued  for  the  falls  within  the  same  principle,  and 

guttering  and  curbing  of  street  in-  so  does  a  steam-mill.     It  would  re- 

tersections.  quire   great  nicety  of  reasoning  to 


412 


POWERS. 


§  183 


This  is  given  as  an  illustration  of  that  class  of  enterprises  ordi- 
narily deemed  private  but  which  may  be  given,  although  the  pol- 
icy is  questionable,  a  quasi  public  character.  For  all  works  of 
internal  improvement  as  thus  authorized  by  statute  or  constitu- 
tion, the  public  corporation  may  be  authorized  to  incur  an  indebt- 
edness consisting  of  an  issue  of  negotiable  bonds.377 


give  a  definition  of  the  expression 
'internal  improvement,'  which 
should  include  a  grist-mill  run  by 
water  and  exclude  one  operated  by 
steam;  or  which  would  show  that 
the  means  of  transportation  were 
more  valuable  to  the  people  of  Kan- 
sas than  the  means  of  obtaining 
bread.  It  would  be  poor  consola- 
tion to  the  people  of  this  town  to 
give  them  the  power  of  going  in 
and  out  of  the  town  upon  a  railroad 
while  they  were  refused  the  means 
of  grinding  their  wheat." 

Dodge  County  Com'rs  v.  Chandler, 
96  U.  S.  205.  Toll  bridge  held  work 
of  internal  improvement. 

In  Osborne  v.  Adams  County,  109 
U.  S.  1,  affirming  106  U.  S.  181,  and 
distinguishing  this  case  from  Burl- 
ington Tp.  v.  Beasley,  supra,  a 
steam  grist-mill  is  held  not  a  work 
of  internal  improvement  under  the 
Nebraska  statute  permitting  coun- 
ties to  borrow  money  for  such  pur- 
poses. United  States  v.  Dodge 
County  Com'rs,  110  U.  S.  156.  But 
in  Blair  v.  Cuming  County,  111  U. 
S.  363,  it  is  held  that  the  improving 
of  the  water  power  of  a  river  was 
such  a  work  of  internal  improve- 
ment. 

City  of  Wetumpka  v.  Winter,  29 
Ala.  651.  Where  internal  improve- 
ments under  state  authority  are 
spoken  of,  it  is  universally  under- 
stood that  works  within  the  state 
by  which  the  public  are  supposed  to 
b«  benefited  are  intended  such  as 


improvements  of  highways,  and 
channels  of  travel  and  commerce. 

Carter  v.  Cambridge  &  B.  B.  Pro- 
prietors, 104  Mass.  235;  Union  Pac. 
R.  Co.  v.  Colfax  County  Com'rs,  4 
Neb.  450;  State  v.  Thome,  9  Neb. 
458;  Dawson  County  Com'rs  v.  Me- 
Namar,  10  Neb.  276.  In  Traver  v. 
Merrick  County  Com'rs,  14  Neb.  327, 
a  water  grist-mill  is  held  a  work  of 
internal  improvement  under  act  of 
1869  providing  for  the  issue  of 
bonds  for  such  purposes. 

State  v.  Adams  County,  15  Neb. 
568;  Getchell  v.  Benton,  30  Neb. 
870,  47  N.  W.  468.  A  mill  for  the 
manufacture  of  beet  sugar  not  sub- 
ject to  public  control  or  making 
sugar  for  toll  is  not  an  internal 
improvement.  Thomas  v.  Leland, 
24  Wend.  (N.  Y.)  65;  Weismer  v. 
Village  of  Douglas,  64  N.  Y.  91. 

377  Perkins  County  v.  Graff,  114 
Fed.  441.  A  canal  constructed  for 
the  purpose  of  irrigating  lands  held 
a  work  of  internal  improvement  un- 
der the  Neb.  Stat.  City  of  Kearney 
v.  Woodruff  (C.  C.  A.)  115  Fed.  90, 
construing  Comp.  St.  Neb.  §  5491, 
which  declares  that  "canals  and  oth- 
er works  constructed  for  irrigation 
or  water  power  purposes  or  both, 
are  hereby  declared  to  be  works  of 
internal  improvement." 

Hughson  v.  Crane,  115  Cal.  404; 
Greeley  v.  City  of  Jacksonville,  17 
Fla.  174.  The  drainage  of  swamps, 
creeks  and  ponds  around  a  city  and 
the  construction  of  sewers  and  wa- 


§  184 


ISSUANCE    OF    SECURITIES. 


413 


§  184.    The  power  to  issue  and  the  conditions  precedent  to  its 
exercise. 

The  issue  of  negotiable  bonds  by  a  public  corporation  is  not 
considered  one  of  its  implied  or  incidental  powers.  The  author- 
ity must  be  expressly  conferred  by  statutory  or  constitutional 
provision.  In  order  to  limit  the  powers  of  public  corporations  in 
this  respect  even  when  the  authority  may  be  expressly  granted, 
such  authority  usually  confers  the  right  only  upon  the  perform- 
ance by  the  corporation  of  certain  conditions  before  such  an 
issue  can  be  lawfully  made  and  therefore  considered  valid.  These 
conditions  ordinarily  consist  of  prescribed  formalities  attending 
the  issue.  The  legal  authority  as  granted  may  give  the  right  to 
corporate  officials  directly  to  be  exercised  through  resolution  or 
ordinance,378  or  certain  acts  may  be  required  of  them  as  neces- 


ter  works  held  to  be  municipal  pur- 
poses within  charter  provisions 
authorizing  the  issue  of  bonds  for 
such  purposes. 

Cummings  v.  Hyatt,  54  Neb.  35, 
74  N.  W.  411.  Irrigation  ditches  or 
canals  held  "works  of  improvement" 
authorizing  the  issue  of  bonds  in 
aid  of  corporations  constructing 
such  ditches  or  canals.  People  v. 
Green,  65  Barb.  (N.  Y.)  505.  Ex- 
penditure of  public  moneys  for  the 
construction  and  maintenance  of 
dykes,  piers,  etc.,  held  authorized 
by  the  provisions  of  a  municipal 
charter.  State  v.  City  of  Toledo,  48 
Ohio  St.  112,  26  N.  E.  1061,  11  L. 
R.  A.  729;  Redd  v.  Henry  County 
Sup'rs,  31  Grat.  (Va.)  695. 

3"s  Lehman  v.  City  of  San  Diego, 
73  Fed.  105.  See,  also,  McCoy  v. 
Briant,  53  Cal.  250,  where  the  court 
said:  "The  ordinances  as  ratified 
by  the  act  of  the  legislature  pre- 
scribed definitely  and  precisely  the 
mode,  and  the  only  mode  in  which 
the  bonds  could  be  issued  and  de- 
livered, to-wit:  By  a  resolution  of 
the  board  of  trustees,  directing 
when  and  to  whom  the  bonds  were 


to  be  issued  and  delivered  nor  can 
this  requirement  be  regarded  as 
merely  directory,  a  violation  of 
which  would  not  impair  the  validity 
of  the  bonds.  On  the  contrary  it 
was  intended  as  a  precaution 
against  an  abuse  of  its  power  by 
the  board  of  trustees  and  to  pre- 
vent a  fraudulent  or  unauthorized 
delivery  by  the  clerk  to  a  person 
not  entitled  to  receive  the  bonds. 
Under  the  terms  of  the  ordinance 
no  bond  could  be  issued  or  delivered 
except  upon  a  resolution  of  the 
board  appearing  upon  its  minutes 
or  the  record  of  its  proceedings 
thus  furnishing  a  most  important 
safeguard  against  fraud  and  an 
abuse  of  power."  Naegely  v.  City 
of  Saginaw,  101  Mich.  532;  Town 
of  Ontario  v.  Hill,  99  N.  Y.  324. 

3"9  People  v.  Pueblo  County 
Com'rs,  2  Colo.  360,  but  see  Mad- 
dox  v.  Graham,  59  Ky.  (2  Mete.) 
56. 

Wilmington,  O.  &  E.  C.  R.  Co.  v. 
Onslow  County  Com'rs,  116  N.  C. 
563,  21  S.  E.  205,  holds  that  a  sub- 
stantial compliance  only  is  neces- 
sary by  public  officials  with  the 


POWERS.  §   185 

sary  to  set  in  motion  the  agency  of  a  general  or  special  election. 
Without  this  preliminary  official  action  the  authority  may  be 
considered  as  lacking  even  though  an  election  is  held  resulting 
in  the  required  affirmative  vote.379  Or,  as  usually  the  case,  the 
right  is  granted  the  public  corporation  contingent  upon  consent 
of  the  people,380  thus  giving  an  opportunity  to  the  tax-paying  in- 
terests to  pass  upon  the  question  of  incurring  or  an  increase  of 
indebtedness.  The  consent  to  be  expressed  at  an  election  held 
especially  for  this  purpose  or  through  a  majority  of  votes  cast 
at  a  general  election  voting  upon  the  question  submitted.  The 
strict  performance  of  all  such  conditions  precedent  is  considered 
necessary  to  the  validity  of  the  bonds.381  unless  the  corporation 
is  estopped  through  the  operation  of  principles  of  law  to  be  con- 
sidered in  subsequent  sections.382 

§  185.    Performance  of  conditions  precedent  required  of  railway 
companies. 

The  issue  of  negotiable  bonds  by  public  corporations  to  aid  in 
the  construction  of  railway  lines  through,  into  or  adjoining  them, 
has  been  of  frequent  occurrence  under  lawful  authority,  the  basis 

provisions  of  a  statute  requiring  v.  Coggeshall,  21  R.  I.  1,  41  Atl.  260; 
certain  action  on  their  part  to  pre-  State  v.  Tolly,  37  S.  C.  551.  See, 
serve  the  integrity  of  bonds  issued  also,  cases  cited  under  §  188. 
through  the  authority  of  a  subse-  ssi  Douglas  v.  Town  of  Chatham, 
quent  election.  Schultze  r.  Man-  41  Conn.  211;  Winn  v.  City  Council 
Chester  Tp.,  61  N.  J.  Law,  513,  40  of  Macon,  21  Ga.  2/5;  Town  of  Mid- 
Atl.  589.  dleport  V.  Aetna  Life  Ins.  Co.,  82  111. 
ssoKelley  v.  Milan,  127  U.  S.  139;  562;  Town  of  Eagle  v.  Kohn,  84  111. 
Young  v.  Clarendon  Tp.,  132  U.  S.  292;  Hutchinson  &  S.  R.  Co.  v.  King- 
340;  Hill  v.  City  of  Memphis,  134  man  County  Com'rs,  48  Kan.  70,  15 
U.  S.  198;  Ter.  v.  Steele,  4  Dak.  78;  L.  R.  A.  401;  Schultze  v.  Manchester 
Dunbar  v.  Canyon  County  Com'rs,  Tp.,  61  N.  J.  Law,  513,  40  Atl.  589; 
5  Idaho,  407,  49  Pac.  409;  Locke  v.  Clarke  v.  City  of  Rochester,  24 
Davison,  111  111.  19;  Hull  v.  Mar-  Barb.  (N.  Y.)  446;  Town  of  Duanes- 
shall  County,  12  Iowa,  142;  Casady  burgh  v.  Jenkins,  46  Barb.  (N.  Y.) 
v.  Woodbury  County,  13  Iowa,  113;  294.  See,  also,  Id.,  40  Barb.  (N.  Y.) 
Steines  v.  Franklin  County,  48  Mo.  574;  Starin  v.  Town  of  Genoa,  23  N. 
167;  Cotton  v.  Inhabitants  of  New  Y.  439;  Simpson  County  v.  Louis- 
Providence,  47  N.  J.  Law,  401;  Me-  ville  &  N.  R.  Co.,  14  Ky.  L.  R.  673, 
Cless  v.  Meekins,  117  N.  C.  34;  Trus-  19  S.  W.  665;  Ball  v.  Presidio  Coun- 
tees  of  Goldsboro  Graded  School  v.  ty,  88  Tex.  60. 
Broadhurst,  109  N.  C.  228;  Ecroyd  382  See  post,  §§  206-212. 


§   185  ISSUANCE    OF    SECURITIES.  415 

of  the  legality  of  such  issue  being  the  supposed  public  advantage 
and  benefit  derived  by  the  community  issuing  such  bonds  from 
the  construction  of  such  enterprises.383  Railway  lines  are 
broadly  regarded  by  the  courts  quasi  public  highways  affording 
facilities  for  the  rapid  and  economical  transportation  of  the  pro- 
duets  of  the  country  and  its  inhabitants.  They  are  considered 
works  of  internal  improvement  of  such  a  character  and  of  such 
public  utility  and  advantage  as  to  authorize  the  issue  of  nego- 
tiable bonds  considered  with  reference  to  use  of  public  funds,384 
but  this  fact  of  itself  does  not  create  such  legal  right.  Legisla- 
tive or  constitutional  authority  must  exist,  and  when  this  is  want- 
ing, aid  granted  in  the  form  of  a  negotiable  bond  will  be  re- 
garded illegal  and  therefore  void.385  The  basis  of  the  issue  being 
as  suggested  it  follows  that  if  there  is  a  failure  to  perform  the 
conditions  required  by  the  act  giving  authority,  the  bonds  may 
be  regarded  illegally  issued  and  therefore  void  even  in  the  hands 
of  bona  fide  purchasers.388  They  may  be  issued  when  specially 

ass  Massachusetts  &  S.  Const.  Co.  Limestone  County  v.  Rather,  48  Ala. 

v.  Cherokee  Tp.,  42  Fed.  750;  Chilton  433;  Alley  v.  Adams  County  Sup'rs, 

v.    Town   of  Gratton,   82   Fed.   873;  76  111.  101. 

Carpenter  v.  Greene  County,  130  Ala.  Chiniquy  v.  People,  78  111.  570. 
613,  29  So.  194.  See  §§  147,  178,  Where  bonds  are  issued  and  deliver- 
supra,  and  also  Elliott,  Railroads,  c.  ed  before  the  performance  of  requir- 
4,  where  the  subject  is  thoroughly  ed  conditions,  this  will  be  consid- 
and  exhaustively  treated.  ered  a  waiver  by  the  county. 

ss*  City    of    Macon    v.    East    Ten-  Land  Grant  R.  &  T.  Co.  v.  Davis 

nessee,  V.  &  G.  R.  Co.,  82  Ga.  501.  County  Com'rs,  6  Kan.  256.    A  vote 

See  cases  cited  §  147.  by  a  county  to  subscribe  for  stock  of 

ss5  City  of  San  Diego  v.  Higgins,  the  railway  company   and  to  issue 

115  Cal.  170,  following  the  principle  bonds  in  payment  therefor  does  not 

laid  down  in  People  v.  Hulbert,  71  create  a  contract  between  the  coun- 

Cal.  72.  ty    and    the    railway    company    en- 

386  Aspinwall    v.    Daviess    County  forceable  by  a  delivery  of  the  bonds 

Com'rs,  22  How.   (U.  S.)  364;   Gunn  even    when    all    the    conditions    re- 

v.  Barry,  82  U.  S.    (15  Wall.)    610,  quired  had  been  performed  by  the 

623;  Harshman  v.  Bates  County,  92  railway     company.     Harrington     v. 

U.  S.  569,  and  German  Sav.  Bank  v.  Town  of  Plainview,  27   Minn.   224; 

Franklin    County,    128    U.    S.    526;  Bound  v.  Wisconsin  Cent.  R.  Co.,  45 

Green  v.  Dyersburg,  2  Flip.  477,  Fed.  Wis.  543;   Town  of  Duanesburgh  v. 

Cas.    No.    5,756;    Mercer   County   v.  Jenkins,  40  Barb.  (N.  Y.)  574;  Cum- 

Provident  Life  &  Trust  Co.  (C.  C.  A.)  berland  &  O.  R.  Co.  v.  Barren  County 

f2  Fed.  623;   Commissioners  Ct.  of  Ct.,  73  Ky.  (10  Bush)  604. 


416 


POWERS. 


§  185 


authorized  not  only  for  aiding  in  the  construction  of  the  line,*" 
but  for  the  purpose  of  constructing  within  corporate  limits  ter- 
minal yards  and  facilities  consisting  of  engine  houses,  shops,  or 
general  office  buildings,388  or  the  purchase  of  ground  upon  which 
to  locate  them.389  The  extent  of  aid  granted  may  be  dependent 
on  mileage  constructed390  or  upon  the  maintenance  of  terminal 
facilities  within  the  corporate  limits.391  The  condition  most  fre- 


SST  Rogers  v.  Runyan,  9  How.  Pr. 
(N.  Y.)  248;  Coleman  v.  Marin  Coun- 
ty Sup'rs,  50  Cal.  493.  It  is  not 
necessary  to  construct  a  line  upon 
the  route  selected  at  the  time  the 
aid  was  granted.  Com.  v.  Chesa- 
peake &  O.  R.  Co.,  12  Ky.  L.  R.  709, 
15  S.  W.  53;  Oldtown  &  L.  R.  Co.  v. 
Veazie,  39  Me.  571;  Penobscot  &  K. 
R.  Co.  v.  Dunn,  39  Me.  587. 

Smith  v.  County  of  Clark,  54  Mo. 
58.  The  question  of  the  legal  ex- 
istence of  the  railroad  corporation 
to  which  aid  had  been  granted  can- 
not be  raised  in  a  suit  on  aid  bonds. 

Lynch  v.  Eastern,  L.  &  M.  R.  Co., 
57  Wis.  430.  Aid  may  be  granted 
to  that  railway  company  which  shall 
first  complete  its  line  to  a  given 
point.  The  court  said:  "The  town 
was  clearly  authorized  to  aid  either 
of  the  companies  in  the  construction 
of  its  road  from  Monroe  to  Gratiot 
and  it  was  undoubtedly  competent 
for  the  electors  of  the  town  to  make 
it  conditioned  upon  the  event  that 
the  company  receiving  its  aid  should 
build  its  road  from  Monroe  to 
Gratiot  before  a  road  should  be 
built  over  the  same  line  by  the  other 
company.  *  *  *  The  only  object 
of  the  electors  of  the  town  of  Gratiot 
was  to  procure  the  construction  of  a 
line  of  railway  from  Monroe  to 
Gratiot;  they  had  no  peculiar  inter- 
est in  the  construction  of  the  line 
west  of  the  village  of  Gratiot,  and 
consequently  it  was  a  matter  of  in- 
difference to  them  which  of  the  two 


railway  companies  constructed  such 
line.  The  object  of  the  taxpayers  of 
Gratiot  would  be  as  well  accomplish- 
ed by  its  construction  by  one  as  by 
the  otherof  said  companies."  People 
v.  Schenectady  County  Sup'rs,  35 
Barb.  (N.  Y.)  415. 

sss  Trustees  of  Elizabethtown  r. 
Chesapeake,  O.  &  S.  W.  R.  Co.,  94 
Ky.  377,  22  S.  W.  609;  Echols  v. 
City  of  Bristol,  90  Va.  165,  17  S.  B. 
943. 

389  Converse  v.  City  of  Ft.  Scott, 
92  U.  S.  503. 

soo  Nevada  Bank  v.  Steinmitz,  64 
Cal.  301;  Casady  v.  Lowry,  49  Iowa, 
523;  Atchison,  C.  &  P.  R.  Co.  r. 
Phillips  County  Com'rs,  25  Kan.  261. 

89i  Chicago,  K.  &  W.  R.  Co.  Y. 
Chase  County  Com'rs,  49  Kan.  399, 
30  Pac.  456;  Coe  v.  Caledonia  &  M. 
R.  Co.,  27  Minn.  197.  The  condition 
here  being  the  location  of  a  station 
within  the  town,  the  court  say: 
"The  construction  of  a  railway  into 
a  town  or  village  always  and  in- 
evitably operates  to  the  peculiar  ad- 
vantage of  some,  over  and  above  the 
general  advantage,  as  well  as  to 
the  peculiar  disadvantage  of  some. 
Yet,  considerations  of  this  kind  have 
not  prevented  the  legislature  of  this 
and  other  states,  in  a  vast  number 
of  instances  from  authorizing  mu- 
nicipal subscriptions  and  bonds  in 
aid  of  sucL  construction.  This  set- 
tles the  question  of  public  policy. 
It  shows  that  the  legislature  has  not 
regarded  the  existence  of  motives  of 


185 


ISSUANCE    OF    SECURITIES. 


417 


quently  to  be  found  in  acts  authorizing  the  issue  of  bonds  for 
this  purpose  are  those  fixing  the  time392  and  the  manner393  of  the 
construction  and  use  of  the  line  or  the  terminal  facilities  upon 
which  the  issue  is  conditioned.  Both  of  these  elements  may  be 
regarded  as  the  consideration  of  the  transaction  granting  aid.  A 
speedy  or  proper  completion  of  the  enterprise  may  be  necessary 
in  order  that  the  public  corporation  reap  the  advantage  and  bene- 


personal  and  private  advantage  of 
the  kinds  mentioned  as  furnishing 
any  reason  why  such  subscriptions 
and  bonds  should  not  be  authorized 
and  voted.  In  our  opinion  the  con- 
dition as  to  the  location  of  the  depot 
was  a  proper  condition,  and  in  no 
way  invalidated  the  petition  or  the 
vote.  It  may  be  added  that  there  is 
nothing  in  this  condition  which 
binds  the  company  to  refrain  from 
locating  such  other  depots  in,  or  in 
the  vicinity  of  the  village  as  the 
convenience  of  the  public  may  re- 
quire." State  v.  City  of  Minneap- 
olis, 32  Minn.  501. 

392  Buffalo  &  J.  R.  Co.  v.  Falconer, 
103  U.  S.  821;  German  Sav.  Bank  v. 
Franklin  County,  128  U.  S.  526,  and 
cases  cited  by  counsel  on  both  sides. 
The  time  originally  fixed  for  the 
completion  of  the  road  and  which 
was  made  a  condition  precedent  was 
held  to  control  the  validity  of  the 
bonds  issued,  and  the  fact  that  an 
extension  of  this  time  was  made  by 
certain  public  officials  could  not 
change  this.  Grattan  Tp.  v.  Chilton 
(C.  C.  A.)  97  Fed.  145,  and  cases 
cited  in  majority  opinion. 

Eddy  v.  People,  127  111.  428.  The 
power  to  extend  the  time  originally 
fixed  for  the  completion  of  the  road 
in  this  case  it  was  held  did  not  ex- 
ist. 

Tipton  County  Com'rs  v.  Indian- 
apolis, P.  &  C.  R.  Co.,  89  Ind.  101; 
Nixon  v.  Campbell,  106  Ind.  47; 
State  v.  Wheadon,  39  Ind.  520.  The 


time  required  by  Ind.  St.  within 
which  a  railway  company  to  which 
aid  has  been  granted  by  a  public 
corporation  shall  begin  work,  com- 
mences with  the  date  of  the  order  by 
the  county  commissioners  for  the 
levying  of  the  aid  tax. 

McManus  v.  Duluth,  C.  &  N.  R. 
Co.,  51  Minn.  30.  A  delay  in  this 
case,  caused  by  the  neglect  of  the 
railway  company  to  secure  the  right 
to  cross  another  railroad,  held  not 
excusable.  Sawyer  v.  Manchester  & 
K.  R.  Co.,  62  N.  H.  135.  Where  the 
record  failed  to  show  the  time  with- 
in which  the  road  should  be  com- 
pleted, its  subsequent  amendment, 
it  was  held,  could  not  defeat  the 
claim  of  the  road  to  the  aid  granted, 
although  it  was  not  completed  with- 
in the  time  as  originally  intended. 
West  Virginia  &  P.  R.  Co.  v.  Har- 
rison County  Ct,  47  W.  Va.  273,  34 
S.  E.  786.  The  right  to  make  a  sub- 
scription conditional  discussed  and 
determined. 

393  Taylor  v.  City  of  Ypsilanti,  105 
U.  S.  60;  Purdy  v.  Town  of  Lansing, 
128  U.  S.  557.  The  adoption  of  an 
entire  route  held  necessary.  Mercer 
County  v.  Provident  Life  &  Trust 
Co.  (C.  C.  A.)  72  Fed.  623;  Grattan 
Tp.  v.  Chilton  (C.  C.  A.)  97  Fed. 
145;  Bras  v.  McConnell,  114  Iowa, 
401,  87  N.  W.  290;  Falconer  v.  Buf- 
falo &  J.  R.  Co.,  69  N.  Y.  491;  Os- 
wego  County  Sav.  Bank  v.  Town  of 
Genoa,  66  App.  Div.  330,  72  N.  Y. 
Supp.  786. 


Abb.  Corp.— 27. 


POWERS. 


§  185 


fits  supposedly  derived,304  and  if  the  railway  company  fails  in 
either  of  these  respects  the  courts  have  generally  held  that  there 
exists  such  a  failure  to  perform  the  conditions  precedent  pre- 
scribed as  will  render  void  the  bonds  issued.  The  validity  of 
these  bonds,  however,  may  be  sustained  through  the  doctrine  of 
estoppel  or  recitals  to  be  subsequently  considered.  The  courts 
do  not  generally  require  more  than  a  substantial  compliance  with 
such  conditions.  If  by  the  act  the  railway  is  required  to  be 
built  and  in  use  by  a  certain  date,  such  result  at  approximately 
that  time  will  be  considered  sufficient,  and  the  same  principle 
will  apply  so  far  as  the  manner  of  the  construction  of  the  road 
is  concerned.  The  law  in  this  respect  looks  to  the  fact  that  there 
has  been  a  substantial  compliance  with  required  conditions ;  that 
the  public  corporation  has  received  the  benefits  it  expected  and, 
therefore,  although  there  may  be  a  failure  to  technically  comply 
with  conditions  precedent,  yet  such  failure  should  not  be  avail- 
able to  the  public  corporation  as  a  defense  in  an  action  brought 
to  enforce  the  payment  of  either  the  principal  or  interest  of  such 
bonds  in  the  hands  of  bona  fide  holders.395 


»9*City  of  Macon  v.  East  Tennes- 
see, V.  &  G.  R.  Co.,  82  Ga.  501; 
Thomas  v.  County  of  Morgan,  59  111. 
479;  Chicago,  P.  &  S.  W.  R.  Co.  v. 
Town  of  Marseilles,  84  111.  145;  Can- 
tillon  Y.  Dubuque  &  N.  W.  R.  Co. 
(Iowa)  35  N.  W.  620;  Cedar  Rapids, 
I.  F.  ft  N.  W.  R.  Co.  v.  Elseffer,  84 
Iowa,  510,  51  N.  W.  27;  Baltimore 
&  D.  P.  R.  Co.  v.  Pumphrey,  74  Md. 
86,  21  Atl.  559;  Town  of  Birch 
Cooley  v.  First  Nat.  Bank,  86  Minn. 
385;  Clark  v.  Town  of  Rosedale,  70 
Miss.  542;  Midland  Tp.  v.  County 
Board  of  Gage  County,  37  Neb.  582; 
Oswego  County  Sav.  Bank  v.  Town 
of  Genoa,  66  App.  Div.  330,  72  N. 
Y.  Supp.  786 ;  Murf reesboro  R.  Co.  v. 
Hertford  County  Com'rs,  108  N.  C. 
56,  12  S.  E.  952;  State  v.  City  of 
Morristown,  93  Tenn.  239,  24  S.  W. 
13;  Ravenswood,  S.  &  G.  R.  Co.  r. 
Town  of  Ravenswood,  41  W.  Va.  732, 
32  L.  R.  A.  416;  Neale  v.  Wood  Coun- 


ty Ct.,  43  W.  Va.  90,  27  S.  E.  310. 
Conditions  as  approved  by  popular 
vote  cannot  be  subsequently  changed. 

West  Virginia  &  P.  R.  Co.  v.  Har- 
rison County  Ct.,  47  W.  Va,  273,  34 
S.  E.  786;  Town  of  Platteville  v. 
Galena  &  S.  W.  R.  Co.,  43  Wis.  493; 
State  v.  Common  Council  of  Toma- 
hawk, 96  Wis.  73,  71  N.  W.  86. 
Railroad  aid  bonds  held  in  escrow 
awaiting  the  completion  of  a  line  of 
road  in  aid  of  which  they  werei 
granted  should  not  be  considered  an 
indebtedness  of  the  city  until  after 
their  delivery. 

395  Coleman  Y.  Marin  County 
Sup'rs,  50  Cal.  493;  Stockton  &  V.  R. 
Co.  v.  City  of  Stockton,  51  Cal.  334; 
Nevada  Bank  v.  Steinmitz,  64  Cal. 
301;  People  v.  Holden,  82  111.  93; 
Nixon  v.  Campbell,  106  Ind.  47.  The 
court  here  held  that  if  the  prescribed 
expenditure  had  been  made  within 
the  township  limits  a  forfeiture  of 


8  185 


ISSUANCE    OF    SECURITIES. 


The  principles  as  stated  in  this  section  apply  equally  to  do- 
nations of  money  or  subscriptions  to  the  capital  stock  of  the  cor- 
poration and  the  issue  of  negotiable  bonds.  Some  of  the  cases 


the  aid  granted  could  not  be  declared 
although  the  road  had  failed  to  com- 
plete its  line  within  the  time  pre- 
scribed. Earner  v.  Bayless,  134  Ind. 
600. 

To  be  "completed"  means  to  be  in 
a  condition  to  be  operated  and  of 
benefit  to  the  people  who  are  to  pay 
the  bonds.  Pittsburgh,  C.,  C.  &  St. 
L.  R.  Co.  v.  Harden,  137  Ind.  486, 
37  N.  E.  324.  But  see  Lamb  v.  An- 
derson, 54  Iowa,  190,  holding  that  a 
railroad  company  cannot  perform 
the  required  condition  as  to  the  con- 
struction of  its  line  by  the  purchase 
of  another  road  to  complete  it  to  the 
point  specified,  and  also  as  holding 
the  same  Iowa,  M.  &  N.  P.  R.  Co.  v. 
Schenck,  56  Iowa,  626;  Courtright  v. 
Deeds,  37  Iowa,  503;  First  Nat.  Bank 
of  Cedar  Rapids  v.  Hendrie,  49  Iowa, 
403;  Chicago,  K.  &  W.  R.  Co.  v. 
Makepeace,  44  Kan.  676;  Chicago, 
K.  &  W.  R.  Co.  v.  Chase  County 
Com'rs,  49  Kan.  399;  Guillory  v. 
Avoyelles  R.  Co.,  104  La.  11,  28  So. 
899;  State  v.  City  of  Hastings,  24 
Minn.  78;  McManus  v.  Duluth,  C.  & 
N.  R.  Co.,  51  Minn.  30.  A  delay  of 
two  weeks  in  the  completion  of  a 
line  was  not  held  a  substantial  com- 
pliance and  the  aid  granted  was  for- 
feited. 

Town  of  Birch  Cooley  v.  First 
Nat.  Bank  of  Minneapolis,  86  Minn. 
385.  Although  there  was  a  substan- 
tial compliance  with  the  required 
conditions  for  the  granting  of  aid, 
the  court,  quite  contrary  to  the  com- 
monly accepted  rule,  held  the  rail- 
road company  not  entitled  to  the 
aid  bonds  issued. 

Pacific  R.  Co.  v.  Seely,  45  Mo.  212; 


Workman  v.  Campbell,  46  Mo.  306; 
Missouri  Pac.  R.  Co.  v.  Tygard,  84 
Mo.  263.  "The  road  was  fully  com- 
pleted for  all  purposes  of  transpor- 
tation of  passengers  and  freight  and 
put  into  full  operation  and  this  was 
the  evident  object  which  the  parties 
had  in  view.  The  terms  of  the  con- 
tract are  to  'complete  and  put  in 
operation,'  and  this  was  done, 
though  the  company  did  not  own  one 
mile  of  the  track  which  it  then  used. 
This  defense,  we  conclude,  is  with- 
out merit." 

Townsend  v.  Lamb,  14  Neb.  324; 
Virginia  &  T.  R.  Co.  v.  Lyon  County 
Com'rs,  6  Nev.  68.  A  substantial 
compliance  with  the  terms  of  the 
statute  granting  aid  with  reference 
to  the  point  of  construction  of  the 
road  does  not  entitle  the  company 
to  the  aid  granted  even  though  a 
complete  compliance  would  be  im- 
practicable. The  court  say:  "But 
counsel  for  plaintiff  claim  that  the 
condition  has  been  substantially 
complied  with  and  to  that  end  offer 
evidence  to  prove  that  to  have  built 
the  road  on  a  line  passing  the  point 
named  would  have  rendered  it  an 
impracticable  road  for  working  pur- 
poses, in  other  words,  as  is  claimed 
not  a  first-class  road;  and  that  the 
point  touched  is  the  nearest  prac- 
ticable point.  *  *  *  But  it  is  not 
a  substantial  compliance  with  a  con- 
tract to  perform  another  and  dif- 
ferent matter  and  the  fact  that  to 
have  built  a  road  as  directed  would 
have  been  to  ruin  it  simply  proves 
that  the  plaintiff  agreed  to  do  some- 
thing which  it  either  could  not  do  or 
deemed  it  better  not  to  do;  but  it 


420 


POWERS. 


185 


cited  refer  to  such  acts  rather  than  the  issue  of  negotiable  bonds. 
Subscriptions  to  the  capital  stock  of  a  corporation  or  aid  voted 
in  the  form  of  negotiable  bonds  is  not  usually  annulled  by  the 
consolidation  of  the  line  to  which  the  aid  is  granted  with  another 
already  constructed  or  in  process  of  construction.396  In  connec- 
tion with  this  subject  it  is  well  to  distinguish,  however,  between 
a  failure  to  perform  conditions  precedent  as  required  by  the 
terms  of  the  authority,  and  promises  or  oral  conditions  made  by 
officers  or  agents  of  the  railway  at  the  time  when  the  aid  is  so- 
licited and  having  for  their  purpose  the  inducing  of  such  aid. 
The  performance  of  conditions  precedent  required  by  law  is  nec- 
essary to  the  validity  of  the  bonds.  The  fact  that  promises  or 
oral  agreements  are  not  fulfilled  when  not  made  a  part  of  the 
authority  does  not,  necessarily,  affect  their  validity  in  the  hands 
of  bona  fide  holders.397 


was  bound  to  do  that  thing  substan- 
tially before  it  could  claim  any  per- 
formance from  defendants."  Jack- 
son v.  Stockbridge,  29  Tex.  394. 

396  Bates  County  v.  Winters,  112  U. 
S.  325;  Livingston  County  v.  First 
Nat.  Bank,  128  U.  S.  102,  9  Sup.  Ct. 
18;  Chicago,  K.  &  W.  R.  Co.  v.  Staf- 
ford County  Com'rs,  36  Kan.  121,  12 
Pac.  593;  Southern  Kansas  &  P.  R. 
Co.  v.  Towner,  41  Kan.  72;  Vicks- 
burg,  S.  &  P.  R.  Co.  v.  Scott,  52  La. 
Ann.  512;  Tagart  v.  Northern  Cent. 
R.  Co.,  29  Md.  557.  A  consolidation 
of  two  railroad  companies  extin- 
guishes all  previously  existing  ar- 
rangements for  the  conversion  of 
bonds  into  stock  of  one  of  the  roads 
at  the  will  of  the  holder. 

Farnham  v.  Benedict,  107  N.  Y. 
159,  13  N.  E.  784.  Municipal  bonds 
issued  to  aid  the  construction  of  a 
line  of  railway  become  void  when 
the  charter  of  such  corporation  ex- 
pires by  limitation  before  the  de- 
livery of  the  bonds. 

Town  of  Mt.  Morris  v.  Thomas. 
158  N.  Y.  450,  affirming  Town  of  Mt. 
Morris  v.  King,  8  App.  Div.  495,  40  N. 


Y.  Supp.  709;  Wright  v.  Milwaukee 
&  St.  P.  R.  Co.,  25  Wis.  46;  Lynch  v. 
Eastern,  L.  &  M.  R.  Co.,  57  Wis.  430. 

397  Town  of  Brooklyn  v.  Aetna  Life 
Ins.  Co.,  99  U.  S.  362,  where  the  au- 
thorities of  a  town,  duly  authorized, 
subscribed  in  its  behalf  for  stock  in  a 
railroad  company  and  issued  coupon 
bonds  in  payment  therefor,  the  town, 
when  sued  by  a  bona  fide  purchaser 
for  value  of  the  coupon  before  ma- 
turity, cannot  set  up  as  a  defense 
that  the  company  disregarded  its 
promise  to  construct  the  road,  or 
that  the  town  officers  delivered  the 
bonds  in  violation  of  special  condi- 
tions not  required  by  statute  and  of 
which  they  had  no  knowledge  or  no- 
tice. 

Carpenter  v.  Greene  County,  130 
Ala.  613,  29  So.  194;  Town  of  Eagle 
v.  Kohn,  84  111.  292.  The  provision 
of  act  April  16th,  1869,  that  mu- 
nicipal railroad  aid  bonds  or  sub- 
scriptions shall  not  be  valid  and 
binding  until  a  compliance  with  the 
conditions  precedent  prescribed  by 
the  act  does  not  make  a  perform- 
ance of  the  conditions  before  the 


§  186  a 


ISSUANCE    OF    SECURITIES. 


421 


§  186.     Conditions  precedent  to  issue. 

(a)  The  notice  or  order  for  an  election.  The  legal  author- 
ity granting  the  right  to  a  public  corporation  to  issue  nego- 
tiable bonds  for  any  of  the  purposes  considered  in  the  preced- 
ing sections,  as  suggested  in  section  184,  provides,  ordinarily, 
for  its  contingent  exercise  upon  consent  of  the  people  at  a  gen- 
eral or  special  election  held  for  such  purpose.  The  reason,  ap- 
parently the  basis  of  the  provisions  calling  for  a  special  election, 
being  that  the  expression  of  the  taxpayers'  choice  will  be  less 
affected  by  political  or  other  considerations  than  if  the  question 
were  passed  upon  at  a  general  election  involving  the  determina- 
tion of  other  issues  than  that  of  the  granting  of  aid.398  Irrespec- 


subscription  or  issuance  of  the  bonds 
essential  to  their  validity,  a  sub- 
sequent performance  thereof  being 
sufficient. 

Chicago,  K.  &  W.  R.  Co.  v.  Ozark 
Tp.,  46  Kan.  415,  26  Pac.  710;  Kan- 
sas City  &  P.  R.  Co.  v.  Rich  Tp.,  45 
Kan.  275.  In  State  v.  City  of  Minne- 
apolis, 32  Minn.  501,  the  city  voted 
to  issue  bonds  in  aid  of  a  railroad 
provided  the  terminus,  general  of- 
fices, and  headquarters  should  be  lo- 
cated there.  It  was  held  that  the 
location  of  the  operating  headquar- 
ters of  the  road  must  be  there  estab- 
lished before  the  city  could  be  com- 
pelled by  mandamus  to  issue  the 
bonds.  See,  also,  Wullenwaber  v. 
Dunigan,  30  Neb.  877,  13  L.  R.  A. 
811,  where  the  railroad  company  rep- 
resented as  an  inducement  that  it 
would  locate  its  depot  on  a  certain 
section  and  after  the  electors  had 
voted  the  aid  bonds  the  depot  was 
located  on  another  section,  the  court 
restrained  the  issue  of  the  bonds. 
People  v.  Morgan,  55  N.  Y.  587. 

Where  bonds  have  not  been  issued 
or  delivered  and  the  conditions  have 
not  been  performed  as  agreed,  their 
issue  will  be  restrained.  Jackson 
County  Sup'rs  v.  Brush,  77  111.  59; 


Wullenwaber  v.  Dunigan,  30  Neb. 
877,  13  L.  R.  A.  811;  Virginia  &  T. 
R.  Co.  v.  Lyon  County  Com'rs,  6 
Nev.  68;  Simonton,  Mun.  Bonds,  § 
274. 

The  enabling  act  usually  designates 
the  person  or  tribunal  who  shall 
have  the  power  to  determine  when 
conditions  precedent  have  been  per- 
formed. This  is  an  official  trust  and 
its  performance  cannot  be  delegated. 
Jackson  County  Sup'rs  v.  Brush,  77 
111.  59;  Belo  v.  Forsythe  County 
Com'rs  76  N.  C.  489;  Simonton,  Mun. 
Bonds,  p.  375,  §  271. 

Where  the  enabling  act  does  not 
designate  any  person  or  tribunal  to 
determine  whether  the  conditions 
have  been  performed,  the  body  au- 
thorized to  issue  the  bonds  must 
necessarily  determine  the  question. 
Knox  County  Com'rs  v.  Aspinwall,  21 
How.  (U.  S.)  539;  Knox  County 
Com'rs  v.  Nichols,  14  Ohio  St.  260; 
Simonton,  Mun.  Bonds,  p.  376,  §  272. 

398Coler  v.  Wyandot  County,  3 
Dill.  391,  Fed.  Cas.  No.  2,987;  State 
v.  Benton,  29  Neb.  460;  Town  of 
Duanesburgh  v.  Jenkins,  46  Barb. 
(N.  Y.)  294.  Where  bonds  have 
have  been  issued  by  a  town  without 
the  consent  of  the  persons  required 


422 


POWERS. 


186a 


tive,  however,  of  this  fact,  the  statutes  require  that  notice  shall 
be  given  in  the  form  prescribed,  of  the  purpose  of  the  election, 
and  the  questions  to  be  submitted  to  the  voters  at  such  election.398 
We  have  in  connection  with  this  subject,  contrary  opinions  as  to 
the  effect  of  an  insufficient  notice  upon  the  validity  of  bondi 
voted  to  be  issued  at  the  election  held  pursuant  thereto,  the  su- 
preme court  of  the  United  States  holding  that  the  law  will  pre- 
sume the  giving  of  proper  notices  in  such  cases  under  the  rule 
that  where  the  performance  of  a  prior  act  is  necessary  to  the 
legality  of  a  subsequent  act  proof  of  the  latter  carries  with  it  a 
presumption  of  the  due  performance  of  the  former.400  The  de- 
termination of  the  question  may,  apparently,  turn  upon  the  fact 
of  the  actual  delivery  of  the  bonds  to  bona  fide  purchasers,  the 
cases  holding  uniformly  that  where  the  aid  has  been  voted  and 
pursuant  to  such  authority  the1  proper  officials  have  executed  and 


by  statute,  they  are  void,  at  least  in 
the  hands  of  those  to  whom  they 
are  issued  if  not  in  the  hands  of 
every  subsequent  holder. 

Starin  v.  Town  of  Genoa,  23  N.  Y. 
439.  A  special  statute  authorized  a 
town  to  borrow  money,  but  provided 
that  the  officers  should  have  no  pow- 
er to  borrow  until  they  had  first 
filed  the  written  assent  of  two-thirds 
of  the  resident  taxpayers  named  in 
the  last  tax  list,  with  an  affidavit 
that  the  persons  whose  assents  are 
attached  are  two-thirds,  etc.  Held 
that  these  prerequisites  not  being 
strictly  complied  with,  the  bonds  is- 
sued for  money  so  borrowed  were 
void. 

389  Thompson  Houston  Elec.  Co.  v. 
City  of  Newton,  42  Fed.  723;  Brown 
v.  Ingalls  Tp.,  81  Fed.  485;  People 
v.  Baker,  83  Cal.  149;  People  v. 
Counts,  89  Cal.  15;  Derby  v.  City  of 
Modesto,  104  Cal.  515;  Cullen  v. 
Glendora  Water  Co.  113  Cal.  503; 
Murphy  v.  City  of  San  Luis  Obispo, 
119  Cal.  626;  Bowen  v.  Town  of 
Greenesboro,  79  Ga.  709;  Ponder  v. 
City  of  Forsyth,  96  Ga.  572.  Code 


of  Georgia  1895  requiring  notice  of 
a  municipal  election  for  the  issue  of 
bonds  to  specify  "what  amount  of 
bonds  are  to  be  issued,  for  what  pur- 
pose, *  *  *  how  much  principal 
and  interest  to  be  paid  annually  and 
when  to  be  fully  paid  off"  does  not 
require  that  the  notice  shall  state 
the  precise  sum  to  be  annually  paid 
as  interest,  when  the  facts  stated 
furnish  a  basis  by  which  a  calcula- 
tion can  be  readily  made  of  the  exact 
amount  of  interest  to  be  so  paid. 

City  of  Perry  v.  Norwood,  99  Ga. 
300;  Callaghan  v.  Town  of  Alexan- 
dria, 52  La.  Ann.  1013;  Hubbard  T. 
Woodsum,  87  Me.  88;  Truelsen  v. 
City  of  Duluth,  61  Minn.  48;  State  v. 
Babcock,  21  Neb.  599;  North  v. 
Platte  County,  29  Neb.  447;  Cook  v. 
City  of  Beatrice,  32  Neb.  80; 
Schultze  v.  Manchester  Tp.,  61  N.  J. 
Law,  513;  Baker  v.  City  of  Seattle, 
2  Wash.  St.  576;  Packwood  v.  Kit- 
titas  County,  15  Wash.  88,  33  L.  R. 
A.  673;  McVichie  v.  Town  of  Knight, 
82  Wis.  137. 

4<x>  Knox  County  v.  Ninth  Nat. 
Bank,  147  U.  S.  91. 


186b 


ISSUANCE    OF    SECURITIES. 


423 


delivered  the  bonds  to  bona  fide  purchasers,  independent  of  the 
doctrines  of  estoppel  or  recitals  the  insufficiency  or  invalidity  of 
the  notice  will  not  affect  their  legality.401  If,  however,  they  still 
remain  undelivered  in  the  hands  of  the  public  officials,  their  de- 
livery may  be  restrained  by  proper  proceedings.402  The  legality 
of  all  subsequent  proceedings,  including,  of  course,  the  validity 
of  bonds  issued,  has  been  sustained  in  an  indirect  attack  upon  the 
sufficiency  of  the  notice  either  as  to  its  form  or  the  manner  of  its 
service  or  publication,  upon  the  ground  that  the  regularity  or 
sufficiency  of  the  notice  could  not  be  raised  in  a  collateral  way, 
the  suit  in  question  being  upon  the  bonds  issued  at  the  election 
called  by  such  notice.403 

(b)     Its  form.     Statutes  generally  prescribe  the  form  of  the 
notice  or  order  calling  for  an  election.    Their  provisions  are  con- 


401  Knox  County  Com'rs  v.  Aspin- 
wall,    21   How.    (U.   S.)    539,  is  the 
leading  case  on  this  question.   Here 
bonds  were  issued  in  payment  of  a 
railroad  aid  subscription  and  in  an 
action  by  a  bona  fide  holder  the  de- 
fense was  urged  that  notice  of  elec- 
tion was  given  by  the  board  of  com- 
missioners instead  of  by  the  sheriff 
of  the  county  as  required  by  the  en- 
abling   act.    The    court    held    them 
valid  in  the  hands  of  bona  fide  hold- 
ers.    In    New   Jersey   and   Missouri 
it  has  been  held  that  in  absence  of 
recitals  of  any  kind  the  bonds  are 
good  in  the  hands  of  bona  fide  hold- 
ers.    Flagg  v.   City  of  Palmyra,  33 
Mo.  440;  Barrett  v.  Schuyler  County 
Ct.,   44   Mo.   197;    Mutual  Ben.  Life 
Ins.  Co.  v.  City  of  Elizabeth,  42  N. 
J.  Law,  235;    Cotton  v.  Inhabitants 
of  New  Providence,   47  N.   J.  Law, 
401.     Simonton,  Mun.  Bonds,  §§  194, 
195,  and  notes. 

402  Knox    County    v.    Ninth    Nat. 
Bank,  147  U.  S.  91;   Skinner  v.  City 
of  Santa  Rosa,  107  Cal.  464,  40  Pac. 
742,   29  L.  R.  A.  512.     A  notice  of 
election    provided    for   an    issue    of 
bonds    "payable    in   gold    or   lawful 


money"  and  with  interest  payable 
"annually";  the  bonds  as  issued  were 
payable  in  "gold  coin  of  the  present 
standard  of  weight  and  fineness" 
and  with  interest  "semi-annually." 
The  court  held  the  bonds  invalid 
when  the  question  was  raised  before 
their  delivery  to  purchasers. 

City  of  Athens  v.  Hemerick,  89  Ga. 
674;  Hauswirth  v.  Mueller,  25  Mont. 
156,  64  Pac.  324.  The  notice  in  this 
case  failed  to  state  the  place  c€ 
holding  the  election  and  it  was  held 
insufficient  when  attacked  before  the 
issue  of  the  bonds  authorized  at  the 
election  held  thereunder. 

403  Knox  County  Com'rs  v.  Aspin- 
wall,  21  How.  (U.  S.)  539;  Knox 
County  Com'rs  v.  Wallace,  21  How. 
(U.  S.)  546;  Thatcher  v.  People,  91 
111.  240.  When  an  election  was  held 
purporting  to  authorize  the  issue  of 
bonds  for  the  purpose  of  building  a 
school  house,  but  the  notice  of  such 
election  omitted  to  state  or  give 
any  information  that  such  question 
was  to  be  voted  on,  it  was  held  that 
a  levy  of  taxes  based  upon  such 
pretended  election  was  without  au- 
thority and  void. 


424 


POWERS. 


186b 


sidered  mandatory,  at  least  so  far  as  the  essentials  of  the  notice 
are  concerned,404  but  not  the  precise  wording  or  phraseology. 
The  test  of  the  sufficiency  or  validity  of  a  notice  is  not  whether 
the  words  and  punctuation  as  prescribed  by  the  statutes  were 
used,  unless  so  required,  but  whether  the  voters  at  the  election 
held  pursuant  to  such  notice  understood  the  questions  submitted 
to  them.405  If  this  is  clearly  expressed  in  unmistakable  language 


*o*  Baltimore  &  D.  P.  R.  Co.  v. 
Pumphrey,  74  Md.  86,  21  Atl.  559. 

405  in  National  Bank  of  Commerce 
r.  Town  of  Grenada,  41  Fed.  87,  the 
notice  published  called  for  an  elec- 
tion on  the  proposition  to  issue  wa- 
terworks bonds.  The  ordinance  the 
basis  of  the  notice  showed  that  the 
question  to  be  submitted  was  one 
relative  to  refunding  the  floating  in- 
debtedness of  the  municipality.  The 
court  held  the  bonds  valid.  Brown 
v.  Ingalls  Tp.,  81  Fed.  485.  Here 
the  court  said  that  the  notice  was 
sufficient  if  it  contained  the  informa- 
tion necessary  to  enable  the  electors 
to  pass  upon  and  determine  intelli- 
gently the  question  submitted. 

People  v.  Counts,  89  Cal.  15,  26 
Pac.  612;  City  of  San  Luis  Obispo 
v.  Haskin,  91  Cal.  549.  See  Brown 
v.  Carl,  111  Iowa,  608,  82  N.  W.  1033, 
for  a  proposition  submitted  to  the 
electors  which  was  held  misleading. 
Derby  v.  City  of  Modesto,  104  Cal. 
515;  Bowen  v.  Town  of  Greensboro, 
79  Ga.  709,  4  S.  E.  159.  Notice  held 
Insufficient  in  not  stating  the  amount 
of  bonds,  the  rate  of  interest,  the 
proportion  of  principal  and  interest 
to  be  paid  annually,  and  further  be- 
cause not  published  for  thirty  days 
prior  to  the  election,  as  required  by 
Ga.  Code,  §  508i.  See,  also,  City  of 
Athens  v.  Hemerick,  89  Ga.  674. 

Smith  T.  City  of  Dublin,  113  Ga. 
833,  39  S.  E.  327.  The  notice  here 
held  insufficient  under  Georgia  Code. 


Burges  v.  Mabin,  70  Iowa,  633,  27 
N.  W.  464,  followed  by  Yarish  v. 
Cedar  Rapids,  I.  F.  &  N.  W.  R.  Co., 
72  Iowa,  556,  34  N.  W.  417.  Tha 
court  also  held  in  this  case  that  a 
notice  specifying  the  point  to  which 
the  railway  company  shall  have  its 
line  of  road  "ironed  and  cars  run- 
ning thereon"  complies  with  the' 
Iowa  statutes  requiring  the  notice  to 
specify  to  what  point  ihe  road  shall 
be  "fully  completed." 

Stone  v.  Gregory,  23  Ky.  L.  R.  1, 
61  S.  W.  1002;  Hamilton  v.  Village 
of  Detroit,  83  Minn.  119,  85  N.  W. 
933;  State  v.  School  Dist.  No.  1  of 
Cascade  County,  15  Mont.  133,  38 
Pac.  462.  A  notice  of  election  not 
stating  the  rate  of  interest  at  the 
time  when  the  proposed  bonds  were 
to  become  payable  and  redeemable 
held  insufficient  under  Comp.  St.  § 
1950  as  amended  by  Act  Feb.  14, 
1893. 

Chicago,  B.  &  Q.  R.  Co.  v.  Village 
of  Wilber,  63  Neb.  624,  88  N.  W.  660. 
The  notice  was  held  sufficiently 
definite  where  a  maximum  amount  of 
bonds  was  named  but  giving  the  vil- 
lage the  option  to  issue  less. 

Weston  v.  City  of  Newburgh,  67 
Hun,  127,  22  N.  Y.  Supp.  22;  Cart- 
wright  v.  Village  of  Sing  Sing,  46 
Hun  (N.  Y.)  548;  Taylor  v.  Green- 
ville County  Sup'rs,  86  Va.  506; 
Neale  v.  Wood  County  Ct,  43  W.  Va. 
90,  27  S.  E.  370;  McBryde  v.  City  of 
Montesano,  7  Wash.  69.  It  is  not 


§  186c 


ISSUANCE    OF    SECURITIES. 


425 


in  the  notice,  it  will  be  held  sufficient,  and,  therefore,  all  subse- 
quent proceedings  had  thereunder,  valid.  The  notice  or  order, 
unless  required  by  statute,  need  not  contain  the  name  of  the  cor- 
poration to  which  the  proposed  aid  is  to  be  given,406  though  a 
notice  calling  for  alternative  aid  in  favor  of  several  roads  has 
been  held  insufficient  and  the  election  void.407  In  Kansas,  how- 
ever, the  authorities  hold  that  some  existing  corporation  must  be 
named  in  the  election  proceedings  as  the  recipient  of  the  proposed 
aid.408 

(c)  Its  service.  The  service  or  publication  of  the  notice  or 
order  calling  the  election  must  be  made  in  the  manner  and  for  the 
time  required  by  law  if  such  provisions  are  to  be  found.  If  there 
is  a  failure  to  publish  or  serve  for  the  time  required,  the  election 
held  in  pursuance  may  not  be  regarded  as  legal,  though  the  pre- 
sumption that  it  is  legal  usually  exists.409  This  presumption,  how- 


necessary  that  the  ordinance  itself 
providing  for  the  purchase  of  water- 
works should  be  set  out  in  full  in 
the  election  notice  where  the  latter 
contains  a  fair  statement  of  the 
matters  to  be  voted  upon. 

Seymour  v.  City  of  Tacoma,  6 
Wash.  138,  32  Pac.  1077.  Under  the 
provisions  of  a  city  charter  requir- 
ing all  ordinances  to  be  published 
for  three  days  consecutively,  a  notice 
of  an  election  required  to  be  publish- 
ed for  thirty  days  need  not  contain 
such  ordinance  but  only  a  fair  state- 
ment of  its  contents. 

406  Block      v.      Bourbon      County 
Com'rs,    99   U.    S.    686;    Ninth   Nat. 
Bank  v.   Knox   County,  37  Fed.   75. 
The  court  here  held  that  where  the 
proposed   route  was  described   with 
reasonable  certainty  it  would  be  suf- 
ficient. 

National  Life  Ins.  Co.  v.  Board  of 
Education  of  Huron  (C.  C.  A.)  62 
Fed.  778;  Clapp  v.  Otoe  County  (C. 
C.  A.)  104  Fed.  473. 

407  Christian  County  Ct.  v.  Smith, 
11   Ky.   L.  R.   834,  12   S.  W.  134,  13 
S.  W.  276,  an  election  at  which  the 


question  of  subscribing  to  the  capital 
stock  of  two  different  railroad  com- 
panies was  submitted:  held  null  and 
void. 

State  v.  Roggen,  22  Neb.  118,  34 
N.  W.  108;  Williams  v.  People,  132 
111.  574,  24  N.  E.  647.  Bonds  in  the 
hands  of  innocent  purchasers  held 
good  though  authorized  at  an  elec- 
tion where  the  question  submitted  to 
the  voters  was  the  issuing  of  rail- 
road aid  bonds  to  any  railroad  that 
may  be  built  within  two  certain 
points  within  the  next  five  years. 

408  Lewis      v.     Bourbon      County 
Com'rs,  12  Kan.  186. 

409  in  Humboldt  Tp.  v.  Long,  92  U. 
S.  642,  where  notice  was  not  given 
the  required  length  of  time,  the  court 
says:     "It  is  plain  that   the  bonds 
are  not  invalid,  because  all  the  no- 
tice of  the  popular  election  was  not 
given  which  the  legislative  act  di- 
rected.    The  election  was  a  step  in 
the  process  of  execution  of  the  pow- 
er  granted  to   issue  bonds   in   pay- 
ment of  a  municipal  subscription  to 
the  stock  of  a  railroad  company.     It 
did    not    itself     confer    the    power. 


426 


POWERS. 


§  186c 


ever,  does  not  follow  when  there  is  a  failure  to  publish  or  post  the 
notice.410  Some  cases  hold  that  the  burden  of  proof  rests  upon 
the  purchaser  of  bonds  issued  by  authority  of  such  election  to 
prove  the  sufficiency  of  the  notice  both  as  to  its  form  and  the 


Whether  that  step  had  been  taken 
or  not,  and  whether  the  election  had 
been  regularly  conducted  with  suffi- 
cient notice  and  whether  the  requi- 
site majority  of  votes  had  been  cast 
in  favor  of  a  subscription  and 
consequent  bond  issue,  were  ques- 
tions which  the  law  submitted  to 
the  board  of  county  commission- 
ers and  which  it  was  necessary 
for  them  to  answer  before  they 
could  act.  In  the  present  case,  the 
board  passed  upon  them  and  issued 
the  bonds,  asserting  by  the  recitals 
that  they  were  issued  'in  pursuance 
of  and  in  accordance  with  the  act  of 
the  legislature.'  Thus,  the  plaintiff 
below  took  them  without  knowledge 
of  any  irregularities  in  the  process 
through  which  the  legislative  author- 
ity was  exercised,  and  relying  upon 
the  assurance  given  by  the  board, 
that  the  bonds  had  been  issued  in 
accordance  with  the  law.  In  his 
hands,  therefore,  they  are  valid  in- 
struments." 

Knox  County  v.  Ninth  Nat.  Bank, 
147  U.  S.  91;  Village  of  Highland 
Park  v.  McAlpine,  117  Mich.  666; 
Warsop  v.  City  of  Hastings,  22  Minn. 
438.  An  ordinance  designated  the 
15th  day  of  May  as  the  time  for 
holding  an  election,  and  directed 
the  city  clerk  to  give  ten  days'  no- 
tice thereof  by  publication.  It  was 
first  published  May  5th  when  it  took 
effect.  The  notice  of  election  being 
published  simultaneously  with  the 
publication  of  the  ordinance  was 
held  sufficient. 

Hamilton  v.  Village  of  Detroit,  83 
Minn.  119,  85  N.  W.  933.  Notice  of 


the  election,  required  by  statute  to 
be  either  published  or  posted,  was 
posted.  This  was  held  sufficient  al- 
though the  village  council  ordered 
the  notice  both  printed  and  publish- 
ed; the  failure  to  publish  in  accord- 
ance with  the  resolution  not  being 
held  fatal  to  validity,  the  statutes  of 
the  state  being  fully  complied  with 
by  the  proper  posting  of  the  notice. 

Kemp  v.  Town  of  Hazlehurst,  80 
Miss.  443,  31  So.  908;  State  v.  Bab- 
cock,  25  Neb.  500.  A  statutory  re- 
quirement of  submission  by  publi- 
cation is  jurisdictional  and  a  single 
publication  not  held  sufficient  where 
the  statutes  require  this  for  at  least 
four  weeks  in  some  newspaper  pub- 
lished in  the  county.  Mittag  v. 
Borough  of  Park  Ridge,  61  N.  J. 
Law,  151,  38  Atl.  750.  Less  notice 
than  that  required  by  statute  renders 
void  an  election  held  pursuant  to 
such  notice. 

Culver  v.  Village  of  Ft.  Edward,  8 
Hun  (N.  Y.)  340;  People  v.  Trustees 
of  Village  of  Ft.  Edward,  70  N.  Y. 
28;  Cleveland  v.  City  Council  of 
Spartanburg,  54  S.  C.  83,  31  S.  E. 
871.  A  statutory  provision  that  "at 
least  three  weeks  notice  by  advertise- 
ment in  one  of  the  papers  of  such 
city  of  the  time  and  of  the  names 
of  managers  appointed  to  conduct 
the  election"  is  satisfied  by  a  single 
publication  appearing  three  weeks 
previous  to  the  election.  Baker  v. 
City  of  Seattle,  2  Wash.  St.  576,  27 
Pac.  462. 

410  Town  of  Clarksdale  v.  Broad- 
dus,  77  Miss.  667,  28  So.  954. 


187 


ISSUANCE    OF    SECURITIES. 


427 


time  and  manner  of  its  service  or  publication,  but  these  form 
an  exception  to  the  general  rule.411 

§  187.    Petition. 

The  holding  of  an  election  at  which  is  submitted  the  question 
of  granting  railroad  aid  bonds  is  frequently  contingent,  not  upon 
the  giving1  of  the  notice  required  by  the  statute  or  action  by 
public  officials,  but  upon  the  filing  of  a  petition  signed  by  a  requi- 
site number  of  qualified  voters  or  electors  of  the  taxing  dis- 
trict.412 The  requirements  of  such  petition  and  the  right  of  in- 
dividuals to  sign  is  generally  prescribed  by  statute  and  no  gen- 
eral rule  can  be  stated  which  will  apply  in  all  cases.  Its  filing, 
however,  signed  by  the  proper  number  of  qualified  petitioners,  is 
held  to  be  jurisdictional  and  the  basis  of  the  validity  of  all  sub- 
sequent proceedings.413 


411  Post  v.  City  of  Pulaski,  47  Fed. 
282;    City   of  Santa   Cruz   v.    Waite 
(C.  C.  A.)  98  Fed.  387;  Williams  v. 
People,   132   111.   574,  24  N.   E.   647; 
Choisser  v.  People,  140  111.  21,  29  N. 
E.  546. 

412  Kline  v.  City  Council  of  Strea- 
tor,  78  111.  App.  42.     If  a  proposition 
to  build  a  bridge  and  issue  bonds 
for  the  same  is  sanctioned  by  a  ma- 
jority of  the  legal  voters  of  the  city, 
either  by  a  petition  signed  by  them 
or  at  an  election  duly  called,  it  is 
sufficient. 

Young  v.  Webster  City  &  S.  W.  R. 
Co.,  75  Iowa,  140;  Berkley  v.  Board 
of  Education  of  Lexington,  22  Ky. 
L.  R.  638,  58  S.  W.  506;  Hamilton 
v.  Village  of  Detroit,  85  Minn.  83. 
One  not  owning  real  estate  in  his 
own  name  in  a  village  and  residing 
on  land  owned  by  his  wife,  held  not 
a  freeholder  within  the  meaning  of 
Minn.  Laws  1893,  c.  200. 

State  v.  School  Dist.  No.  9,  10  Neb. 
544;  Hoxie  v.  Scott,  45  Neb.  199; 
Town  of  Cherry  Creek  v.  Becker,  50 
Hun,  601,  2  N.  Y.  Supp.  514;  People 


v.  Sawyer,  52  N.  Y.  296.  A  signer 
has  the  right  to  withdraw  his  name 
from  such  petition.  Town  of  Solon 
v.  Williamsburgh  Sav.  Bank,  114  N. 
Y.  122;  State  v.  Town  of  Newberry, 
47  S.  C.  418;  Cleveland  v.  City  Coun- 
cil of  Spartanburg,  54  S.  C.  83. 

413  Chicago,  K.  &  W.  R.  Co.  v. 
Chase  County  Com'rs,  43  Kan.  760. 
In  Craig  v.  Town  of  Andes,  93  N.  Y. 
405,  it  was  held  that  the  consent  of 
the  taxpayers  must  be  unqualified 
and  unconditional  and  their  petition 
absolute  in  form,  in  order  to  confer 
jurisdiction  upon  a  county  judge. 
In  this  case  about  one-fourth  of  the 
petitioners  inserted  a  condition  in 
the  petition  that  the  road  should  be 
located  in  a  certain  place.  The  court 
said:  "The  statute  confers  no  power 
upon  the  taxpayer  to  indicate  or  se- 
cure a  railroad  location  to  suit  his 
convenience  or  benefit  his  property, 
but  for  the  advantage  of  all  the 
town." 

Hoxie  v.  Scott,  45  Neb.  199;  Cum- 
mings  v.  Hyatt,  54  Neb.  35.  A  mar- 
ried woman  may  be  a  freeholder  and 


428 


POWERS. 


187 


If  a  petition  is  lacking  or  is  deficient,  either  in  form  or  sig- 
natures, it  will  not  be  held  as  giving  the  right  to  public  officials 
to  call  an  election  at  which  the  question  of  proposed  aid  is  to  be 
.passed  upon.  The  petition  is  the  basis  of  official  action  regard- 
ing the  proposed  election.414  Although  official  action  upon  such 
a  petition  for  an  election  is  considered  by  the  courts  discretion- 
ary in  a  large  measure,  yet  'officials  required  to  act  cannot 
arbitrarily  refuse  to  call  the  election  as  petitioned.415  A  liberal 


qualified  under  the  statute  to  sign 
a  petition  for  an  election  to  pass 
upon  an  issue  of  municipal  bonds. 

Simonton,  Mun.  Bonds,  §  65. 
"When  a  taxpayer  has  signed  a  pe- 
tion  he  may  revoke  it  if  he  does  so 
before  the  judge  or  other  officer  to 
whom  it  is  intended  to  be  presented 
acquires  the  right  to  act  upon  it, 
but  the  withdrawal  must  be  made 
before,  and  not  after,  the  hearing  on 
the  petition."  Noble  v.  City  of  Vin- 
cennes,  42  Ind.  125;  People  v.  Hen- 
shaw,  61  Barb.  (N.  Y.)  409;  Town  of 
Springport  v.  Teutonia  Sav.  Bank,  84 
N.  Y.  403.  Contra,  Town  of  Andes 
v.  Ely,  158  U.  S.  312;  Biddle  v. 
Borough  of  Riverton,  58  N.  J.  Law, 
289,  33  Atl.  279;  Calhoun  v.  Millard, 
121  N.  Y.  69,  8  L.  R.  A.  248. 

4"  Rich  v.  Mentz  Tp.,  134  U.  S. 
632.  A  petition  not  complying 
with  the  statute  confers  no  power 
on  the  county  judge  to  issue  rail- 
road aid  bonds.  Town  of  Andes  v. 
Ely,  158  U.  S.  312.  The  fact  that 
some  of  the  signatures  attached  to 
a  petition  to  the  county  judge  are 
conditional  does  not  deprive  him 
of  his  jurisdiction,  and  his  deter- 
mination in  favor  of  the  issue  of 
bonds  is  conclusive  until  legally 
reversed. 

Whiting  v.  Town  of  Potter,  18 
Blatchf.  165,  2  Fed.  517;  People  v. 
Cline,  63  111.  394.  None  of  the  sign- 
ers to  the  petition  in  this  case 


were  legal  voters  as  required  by 
law.  The  company  in  aid  of  which 
the  bonds  were  issued  was  cognizant 
of  this  fact  and  it  was  held  that  the 
municipality  could  not  be  compelled 
to  issue  them. 

Noble  v.  City  of  Vincennes,  42  Ind. 
125.  The  court  held  here  that  a 
remonstrance  to  the  granting  of  aid 
operated  to  withdraw  the  names  of 
the  remonstrants  from  the  petition 
previously  signed  by  them.  Clark 
v.  Town  of  Noblesville,  44  Ind.  83. 
Petitions  not  held  necessary  in  in- 
corporated towns. 

Taxpayers  of  Webster  Parish  v. 
Police  Jury,  52  La.  Ann.  465;  Ham- 
ilton v.  Village  of  Detroit,  85  Minn. 
83;  Schultze  v.  Manchester  Tp.,  61 
N.  J.  Law,  513,  40  Atl.  589;  Biddle 
v.  Borough  of  Riverton,  58  N.  J. 
Law,  289,  33  Atl.  279.  The  with- 
drawal from  the  petition  of  a  suf- 
ficient number  of  the  petitioners  to 
reduce  the  amount  of  taxable  prop- 
erty to  less  than  that  required  by 
law  destroys  the  authority  of  of- 
ficials to  proceed  upon  such  petition. 
People  v.  Smith,  55  N.  Y.  135. 

415  State  v.  Conrad,  147  Mo.  654, 
49  S.  W.  857;  State  v.  Reno  County 
Com'rs,  38  Kan.  317,  16  Pac.  337. 

4i«  Jussen  v.  Lake  County  Com'rs, 
95  Ind.  567;  Claybrook  v.  Rocking- 
ham  County  Com'rs,  114  N.  C.  453, 
19  S.  E.  593;  Kansas  City  &  P.  R. 
Co.  v.  Rich  Tp.,  45  Kan.  275,  25 


g  188 


ISSUANCE    OF    SECURITIES. 


429 


rule  of  construction  will  be  followed  in  determining  the  effect 
of  such  petition,  and  where  it  is  not  so  defective  or  ambiguous 
as  to  mislead  anyone,  subsequent  proceedings  held  thereunder 
will  not  be  invalid.418 

§  188.    The  calling  of  an  election  by  ordinance. 

The  right  existing  in  a  public  corporation  to  issue  negotiable 
bonds  based  upon  a  grant  of  legislative  power  is  usually  exer- 
cised, as  already  suggested  in  a  preceding  section,417  by  the  peo- 
ple at  an  election  held  to  vote  upon  the  questions  submitted, 
including  that  of  the  issue  of  bonds.418  This  election  may  be 
called  by  notice  pursuant  to  an  order  of  a  quasi  judicial  body 
or  upon  the  passage  of  an  ordinance419  or  resolution420  by  the 


Pac.  595;  In  De  Forth  v.  Wisconsin 
&  M.  R.(  52  Wis.  320,  it  was  held 
that  procuring  and  affixing  signa- 
tures on  Sunday  was  "business" 
and  unlawful,  and  conferred  no  au- 
thority upon  the  supervisors  to  is- 
sue bonds. 

*!"  Berkley  v.  Board  of  Education 
of  Lexington,  22  Ky.  L.  R.  638,  58 
S.  W.  506.  See,  also,  cases  cited  un- 
der §  184. 

«s  Calhoun  County  Sup'rs  v.  Gal- 
braith,  99  U.  S.  214;  Brown  v.  Carl, 
111  Iowa,  608,  82  N.  W.  1033;  Tur- 
ner v.  Woodson  County  Com'rs,  27 
Kan.  314;  Turpin  v.  Madison  Coun- 
ty Fiscal  Ct.,  20  Ky.  L.  R.  1131,  48 
S.  W.  1085.  A  second  election  au- 
thorizing the  issue  of  bonds  valid 
although  the  same  question  was 
submitted  to  the  voters  at  a  previ- 
ous election,  the  officials  failing  to 
act  under  the  authority  then  grant- 
ed. 

Callaghan  v.  Town  of  Alexandria, 
52  La.  Ann.  1013;  Kemp  v.  Town  of 
Haslehurst,  80  Miss.  443,  31  So.  908; 
Town  of  Plainview  v.  Winona  &  St. 
P.  R.  Co.,  36  Minn.  505;  Union  Bank 
v.  Town  of  Oxford  Com'rs,  116  N. 
C.  339,  21  S.  E.  410;  Bell  v.  Borough 


of  Waynesboro,  195  Pa.  299.  The 
incurring  of  indebtedness  by  the 
proper  officials  without  authority 
from  the  electors  can  be  subsequent- 
ly ratified  by  them.  Ecroyd  v.  Cog- 
geshall,  21  R.  I.  1,  41  Atl.  260;  Mc- 
Creight  v.  City  of  Camden,  49  S.  C. 
78,  26  S.  E.  984;  State  v.  Tolly,  37 
S.  C.  551,  16  S.  E.  195;  Conklin  v. 
City  of  El  Paso  (Tex.  Civ.  App.) 
44  S.  W.  879;  Estey  v.  Starr,  56  Vt. 
690.  A  town  may  rescind  aid  voted 
a  railroad  when  no  rights  of  third 
parties  have  intervened  and  nothing 
has  been  done.  Davis  v.  Wayne 
County  Ct.,  38  W.  Va.  104.  See, 
also,  cases  in  note,  51  Am.  St.  Rep. 
844-848. 

«9  National  Bank  of  Commerce  v. 
Town  of  Grenada,  44  Fed.  262.  "It 
is  true  that  section  3419  of  the  Col- 
orado statute  which  provides  for  the 
funding  of  the  debts  of  towns  does 
not  in  terms  say  that  the  submission 
to  the  qualified  voters  of  the  ques- 
tions of  funding  and  the  order  di- 
recting the  issue  of  the  bonds  shall 
be  by  ordinance.  But  an  examina- 
tion of  the  whole  statute  concerning 
towns  and  cities  has  satisfied  my 
mind  beyond  a  doubt,  that  it  was  in 


430 


TOWERS. 


188 


proper  legislative  body  of  the  corporation.  Whatever  the  mode 
may  be  as  prescribed  by  law  for  the  calling  of  the  election, 
whether  by  notice,  petition  or  ordinance,  it  will  not  be  considered 
valid  unless  the  statutory  requirements  are  followed.421  The  le- 
gality of  the  election  establishes  the  validity  of  the  bonds  then 
voted,  unless,  through  the  operation  of  the  doctrine  of  recitajs, 
the  corporation  is  estopped  from  denying  this.  Where  the  elec- 
tion is  called  by  ordinance,  the  formalities  required,  so  far  as  of 
record  for  holding  the  election,  must  be  followed  strictly  to  give 
legal  effect  to  subsequent  steps.422 


the  contemplation  of  the  law  mak- 
ers, and  Is  a  necessary  deduction 
from  the  tenor  of  the  whole  act  that 
wherever  the  governing  body  of 
such  municipalities  is  empowered  to 
create  a  debt  on  the  whole  constit- 
uency, or  to  take  action  looking  to 
the  issue  of  municipal  bonds,  it 
should  proceed  in  the  more  formal 
and  solemn  mode  of  an  ordinance." 
Irwin  v.  Lowe,  89  Ind.  540;  Bills 
v.  City  of  Goshen,  117  Ind.  221,  3 
L.  R.  A.  261;  Ranney  v.  Baeder, 
60  Mo.  600. 

420  Atchison  Board  of  Education 
v.  De  Kay,  148  U.  S.  591;  City  of 
Alma  v.  Guaranty  Sav.  Bank  (C.  C. 
A.)  60  Fed.  203.  Where  there  is 
nothing  in  the  statutes  expressly  re- 
quiring the  passage  of  an  ordinance 
as  preliminary  to  an  election,  the 
fact  that  the  question  was  submit- 
ted to  the  electors  by  resolution 
does  not  invalidate  the  bonds.  The 
court  say:  "The  law  is  well  settled 
that  a  municipal  corporation  may 
declare  its  will  as  to  matters  within 
the  scope  of  its  corporate  powers, 
either  by  a  resolution  or  an  ordi- 
nance unless  its  charter  requires  it 
to  act  by  ordinance,  and  generally 
It  is  of  little  significance  whether  a 
legislative  measure  is  couched  in  the 
language  of  an  ordinance  or  of  a 
resolution  where  it  is  enacted  with 


the  same  formalities  which  usually 
attend  the  adoption  of  ordinances. 
If  the  action  taken  by  a  municipal- 
ity amounts  to  prescribing  a  perma- 
nent rule  of  conduct,  which  is  to  be 
thereafter  observed  by  the  inhabi- 
tants of  the  municipality,  or  by  its 
officers  in  the  transaction  of  the 
corporate  business,  then,  no  doubt, 
the  rule  prescribed  may  be  more 
properly  expressed  in  the  form  of 
an  ordinance;  but  it  is  eminently 
proper  to  act  by  resolution  if  the 
action  taken  is  merely  declaratory 
of  the  will  of  the  corporation  in  a 
given  matter  and  is  in  the  nature  of 
a  ministerial  act."  City  of  Lincoln 
v.  Sun  Vapor  Street-Light  Co.,  59 
Fed.  756;  Swan  v.  Arkansas  City,  61 
Fed.  478;  City  of  Paterson  v.  Bar- 
net,  46  N.  J.  Law,  62;  Kline  v.  City 
of  Streator,  78  111.  App.  42. 

421  Force   v.  Town  of  Batavia,   61 
111.  99;   Harmon  v.  Auditor  of  Pub- 
lic Accounts,  22  111.  App.  129,  affirm- 
ed in  123  111.  122,  13  N.  E.  161,  and 
following    Chicago    &    I.    R.    Co.    v. 
Pinckney,  74  111.  277;   Town  of  Mid- 
dleport  v.  Aetna  Life  Ins.  Co.,  82  111. 
562. 

422  National  Bank  of  Commerce  v. 
Town  of  Granada  (C.  C.  A.)  54  Fed. 
100,  affirming  44   Fed.   262,   48  Fed. 
278,  and  following  Dixon  County  v. 
Field,  111  U.  S.  83.     The  court  say: 


§  189 


ISSUANCE    OF    SECURITIES. 


§  189.    The  election. 

Where  negotiable  bonds  are  authorized  to  be  issued  at  an  elec- 
tion, it  may  be  called  especially  to  consider  the  one  question, 
viz.,  the  incurring  of  indebtedness,423  or  this  question  may  be 


"We  entertain  no  doubt  but  that  the 
appropriate  mode  for  the  town  to 
proceed  under  the  act  in  question  is 
by  ordinance  of  its  board  of  trus- 
tees. The  proceeding  involves  the 
appointment  and  holding  of  an  elec- 
tion and  the  conversion  of  a  non- 
negotiable  floating  debt  into  the 
form  of  negotiable  bonds  drawing  a 
high  rate  of  interest,  payable  semi- 
annually  and  which  must  run  five 
and  many  run  fifteen  years.  A 
measure  requiring  an  expression  of 
opinion  from  the  voters  of  the  town 
at  the  ballot  box,  *  *  *  and  of 
so  much  interest  to  the  taxpayers 
of  the  town  and  the  holders  of  its 
securities  though  so  many  years 
ought  not  be  carried  into  effect  ex- 
cept by  the  most  solemn  and  delib- 
erate mode  of  proceeding  known  to 
the  law  for  giving  expression  of  the 
corporate  will.  That  mode  is  by 
ordinance.  This  is  the  mode  that  is 
prescribed  by  the  statute  of  Colora- 
do. *  *  *  The  provision  of  the 
act  (statute)  that  such  ordinances 
shall  not  take  effect  or  be  in  force 
until  they  are  published  in  the  mode 
provided  by  the  act  is  mandatory. 
This  ordinance  never  having  been 
published,  never  went  into  effect. 
Not  being  in  force  it  conferred  no 
authority  on  tne  board  of  trustees 
or  any  officer  of  the  town  to  do  anj 
act  under  it:  and  no  one  could  ac- 
quire any  right  based  on  it,  or  on 
any  act  of  the  officers  of  the  town 
assuming  to  act  under  it.  It  had  no 
more  legal  effect  that  if  it  had  never 
been  passed  by  the  board  of  trus- 
tees." "But  the  learned  counsel  for 


dhe  plaintiff  in  error  contends  that 
the  recitals  in  the  bonds  that  they 
are  'issued  under  an  ordinance'  of 
the  town  relieves  the  plaintiff  from 
the  burdens  of  showing  that  the  or- 
dinance was  published  and  estops 
the  defendant  from  showing  that  it 
was  not.  It  has  never  yet  been  held 
that  a  false  recital  in  a  bond  can 
make  that  a  law  which  never  was  a 
law.  When  an  ordinance  has  been 
duly  enacted,  and  has  taken  effect, 
authorizing  the  officers  of  a  town  to 
issue  its  negotiable  bonds  upon  cer- 
tain precedent  requirements  or  con- 
ditions *  *  *  and  the  officers  is- 
suing the  bonds  are  the  appointed 
tribunal  to  decide  whether  there  has 
been  a  compliance  with  such  prece- 
dent conditions  and  the  bonds  issued 
recite  that  they  are  issued  in  pur- 
suance of  such  ordinance,  it  is  prob- 
ably true  that  such  recital  in  favor 
of  bona  fide  purchasers  for  value 
would  import  a  full  compliance  with 
the  requirements  of  the  ordinance 
and  preclude  inquiry  as  to  whether 
the  precedent  conditions  were  per- 
formed before  the  bonds  were  is- 
sued. But  that  doctrine  has  no  ap- 
plication to  this  case." 

423  Bowen  v.  Town  of  Greensboro, 
79  Ga.  709,  4  S.  E.  159;  Byrne  v. 
Parish  of  East  Carroll,  45  La.  Ann. 
392.  See,  as  to  the  construction  of 
the  statutes  of  Minnesota  on  the 
subject,  Truelson  v.  City  of  Duluth, 
60  Minn.  132,  and  Janeway  v.  Du- 
luth, 65  Minn.  292. 

Baumann  v.  City  of  Duluth,  67 
Minn.  283;  Hamilton  v.  Village  of 
Detroit,  83  Minn.  119,  85  N.  W.  933. 


434 


POWERS. 


§  189 


submitted  to  the  people  for  their  determination  at  a  general  elec- 
tion.42* The  legality  of  an  act  providing  for  such  special  elec- 
tion, although  questioned,  has  never  been  decided  adversely,  and 
as  a  question  of  expediency  it  would  seem  that  the  question  of 
incurring  indebtedness  could  be  considered  more  impartially  and 
upon  its  own  merits  at  such  an  election  than  at  a  general  one 
where  other  influences  and  other  questions  are  submitted  to  be 
decided  and  which  may  influence  the  vote  of  the  electors,  inde- 
pendent of  the  merits.  Occasionally,  the  question  of  incurring 
indebtedness  or  subscribing  to  the  stock  of  a  railway  company 
has  been  submitted  to  the  "male  taxpayers  of  the  county"  alone, 
for  their  decision  instead  of  all  the  electors  who  would,  ordi- 
narily, be  qualified  to  vote  at  a  general  election  or  upon  other 
questions.  The  limitation  imposed  by  such  an  act  has  been  held 
in  such  cases  a  valid  one  as  the  class  named  by  such  act  or  au- 
thority forms  a  large  proportion  and  usually  all  of  those  inter- 
ested in  the  question;  the  taxpayers  of  the  taxing  district  bear- 
ing the  burden  of  indebtedness.425 


A  proposition  embodying  two  differ- 
ent questions  held  not  objectionable 
since  the  issue  of  the  bonds  was  the 
essential  question  to  be  determined 
by  vote  of  the  electors  and  this  was 
clearly  submitted.  Robinson  v.  City 
of  Goldsboro,  122  N.  C.  211,  30  S.  E. 
324;  Baker  v.  City  of  Seattle,  2 
Wash.  St.  576. 

*24Belknap  v.  City  of  Louisville, 
99  Ky.  474,  36  S.  W.  1118,  34  L.  R. 
A.  256;  City  of  Ashland  v.  Culbert- 
son,  103  Ky.  161,  44  S.  W.  441. 

425  Baltimore  &  O.  R.  Co.  v.  Coun- 
ty of  Jefferson,  29  Fed.  305.  The 
court  say:  "By  the  terms  of  the 
fifth  section  of  the  act  in  question, 
power  was  delegated  by  the  legisla- 
ture to  the  supervisors  of  Jefferson 
County  to  submit  the  question  of  a 
subscription  to  the  capital  stock  of 
the  said  railroad  to  all  the  male  tax- 
payers of  the  county,  at  a  special 
election,  above  the  age  of  twenty- 
one  years  not  under  any  of  the  dis- 


abilities mentioned  in  the  act.  It 
is  urged  that  the  power  thus  con- 
ferred by  the  legislature  is  not  war- 
ranted by  the  constitution.  This  is 
a  delegation  of  power  to  local  au- 
thorities for  local  purposes.  There 
is  nothing  in  the  constitution  which 
inhibits  the  legislature  from  the  ex- 
ercise of  such  a  power.  In  the  ab- 
sence of  such  a  restriction  upon 
the  legislative  power,  the  exercise  of 
it  cannot  be  questioned.  It  has  been 
frequently  done  by  the  legislatures 
of  various  states  upon  similar  pro- 
visions in  their  constitution  and  in 
almost  every  instance  where  the 
power  has  been  questioned,  the 
courts  have  sustained  the  legislative 
view  of  its  exercise.  The  power  of 
taxation  for  local  and  municipal 
purposes  has  most  always  been  dele- 
gated. The  reason  for  it  is  founded 
in  necessity  and  the  exercise  of  the 
power  cannot  now  be  questioned." 


§  190 


ISSUANCE    OF    SECURITIES. 


433 


§  190.    Questions  not  necessary  for  submission  to  the  electors. 

Although  the  general  principle  exists  that  before  an  issue  of 
negotiable  bonds  will  be  considered  valid,  the  question  of  the 
issue  must  be  submitted  to  a  vote  of  the  people,  it  does  not  apply 
to  all  issues,  and,  especially,  is  this  true  of  refunding  bonds.  The 
legislative  authority  may  exist  for  the  refunding  of  indebted- 
ness; the  issuing  of  bonds  or  other  evidences  of  debt  to  accom- 
plish this  purpose,  it  has  been  repeatedly  held,  does  not  increase 
or  create  a  debt  but  merely  changes  its  form.  The  authorities 
are  uniform  to  the  effect  that  where  legislative  authority  ex- 
ists, the  proper  officials  have  the  power  to  negotiate  for  an  is- 
sue of  refunding  bonds  without  submitting  the  question  to  the 
electors  of  the  district,426  and  then,  although  their  validity  may 


*26  Boon  Tp.  v.  Cummins,  142  U. 
S.  366;  Howard  v.  Kiowa  County,  73 
Fed.  406;  City  of  Huron  v.  Second 
Ward  Sav.  Bank,  86  Fed.  272,  49  L. 
R.  A.  534;  Pratt  County  Com'rs  v. 
Society  for  Savings  (C.  C.  A.)  90 
Fed.  233.  "The  bonds  from  which 
some  of  the  coupons  in  suit  were  cut 
were  issued  to  refund  debts  of  the 
xcounty  which  were  evidenced  by 
judgments  and  these  bonds  were  is- 
sued without  a  vote  of  the  electors 
of  the  county.  It  is  contended  that 
chapter  fifty  of  the  laws  of -1879 
did  not  authorize  the  issue  of  bonds 
to  refund  judgments  without  a  vote 
of  the  electors  and  that  these  cou- 
pons and  the  bonds  from  which  they 
were  taken,  are  consequently  void. 
*  *  *  The  theory  of  counsel  for 
the  county  is  that  a  judgment  is 
'current  expense'  of  the  year  in 
which  it  is  recovered;  that  by  para- 
graphs 1630  and  1632  the  board  of 
county  commissioners  was  forbidden 
to  borrow  money  to  meet  current  ex- 
penses without  first  submitting  the 
question  of  such  loan  to  a  vote  of 
the  electors;  and  that  therefore,  it 
is  prohibited  from  refunding  a  debt 
evidenced  by  a  judgment  under  the 

Corp. — 28. 


act  of  1879  without  such  a  vote. 
The  argument  is  too  subtle  and  in- 
genious to  be  sound.  *  *  *  The 
refunding  of  a  debt  in  the  legal 
method  *  *  *  is  not  borrowing 
money  nor  is  the  exchange  of  bonds 
for  a  judgment,  the  making  of  a 
loan.  *  *  *  Such  an  exchange 
neither  creates  nor  increases  the 
debt;  it  simply  changes  the  form  of 
it."  Geer  v.  Ouray  County  Com'rs 
(C.  C.  A.)  97  Fed.  435;  Hammond  v. 
City  of  San  Leandro,  135  Cal.  450, 
67  Pac.  692;  Chicago  &  I.  R.  Co.  v. 
Mallory,  101  111.  583;  Common  Coun- 
cil of  Muskegon  v.  Gow,  94  Mich. 
453.  Following  the  city  charter  the 
court  here  held  that  the  state  coun- 
cil of  Michigan  has  power  to  issue 
bonds  without  a  vote  of  the  electors 
when  the  total  amount  of  bonds  and 
the  general  tax  levy  for  the  year  is 
less  than  3  per  cent  of  the  assessed 
valuation. 

Le  Tourneau  v.  City  of  Duluth,  85 
Minn.  219,  88  N.  W.  529.  Under 
Laws  1899,  c.  351,  §  10,  a  city  coun- 
cil may  issue  bonds  in  amount  less 
than  $100,000  for  the  particular  pub- 
lic purpose  without  the  approval  of 
the  electors  of  the  city.  But  see  the 


434 


POWERS. 


§    191 


be  questioned,  the  bonds  thus  issued  will  be  considered  valid 
outstanding  obligations  of  the  corporation  issuing  them  and 
subject  to  all  the  rules  and  principles  of  law  controlling  and  gov- 
erning such  instruments. 

§  191.    The  election;  time  and  manner  of  holding. 

The  election  authorized  by  statutory  authority  at  which  the 
question  of  an  issue  of  negotiable  bonds  is  submitted  to  the  elect- 
ors for  their  determination  should  be  held  in  the  manner  and  in 
accordance  with  laws  controlling  general  elections,427  unless  the 
authority  specially  provides  otherwise.428  The  hours  during 
which  the  polls  shall  be  kept  open,  the  manner  of  balloting,  the 
form  of  ballots  and  the  questions  submitted,  are  all  regulated  in 
the  manner  suggested.429  The  recitals  of  officers  authorized  by 


dissenting  opinion  of  Judge  Collins. 
Bryan  v.  City  of  Lincoln,  50  Neb. 
620,  35  L.  R.  A.  752. 

McCreight  v.  City  of  Camden,  49 
8.  C.  78,  26  S.  E.  984,  where  a  sub- 
mission to  the  electors  was  not  con- 
sidered necessary  under  the  special 
authority  granted  the  city  of  Cam- 
den  to  borrow  money  by  issuing 
bonds.  Murry  v.  Fay,  2  Wash.  St. 
352,  26  Pac.  533;  Knight  v.  Town  of 
West  Union,  45  W.  Va,  194,  32  S.  E. 
163. 

42751  Am.  St.  Rep.  853-854;  Town 
of  Oregon  v.  Jennings,  119  U.  S.  74; 
Town  of  Concord  v.  Robinson,  121 
U.  S.  165;  Post  v.  Pulaski  County, 
47  Fed.  282;  People  v.  Town  of 
Berkeley,  102  Cal.  298,  36  Pac.  591, 
23  L.  R.  A.  838;  Bowen  v.  Town  of 
Greenesboro,  79  Ga.  709 ;  Edwards  v. 
People,  88  111.  340;  Cedar  Rapids  & 
M.  R.  Co.  v.  Boone  County,  34  Iowa, 
45;  Union  Bank  of  Richmond  v. 
Town  of  Oxford,  116  N.  C.  339,  21 
8.  E.  410. 

*28  Humboldt  Tp.  v.  Long,  92  U.  S. 
642.  Bonds  not  void  where  the 


election  was  held  in  less  than  thir- 
ty days  after  the  order  calling  it, 
the  law  requiring  thirty  days'  no- 
tice, the  holder  being  a  bona  fide 
purchaser  and  the  bonds  reciting 
that  the  election  was  regularly  held. 
Knox  County  v.  Ninth  Nat.  Bank, 
147  U.  S.  91;  Harding  v.  Rockford, 
R.  I.  &  St.  JU  R.  Co.,  65  111.  90; 
Bras  v.  McConnell,  114  Iowa,  401, 
87  N.  W.  290;  Pritchard  v.  Magoun, 
109  Iowa,  364,  46  L.  R.  A.  381;  Peo- 
ple v.  Caruthers  bchool  Dist.,  102 
Cal.  184,  36  Pac.  396;  Seymour  v. 
City  of  Tacoma,  6  Wash.  427,  33  Pac. 
1059;  Phillips  v.  Town  of  Albany, 
28  Wis.  340. 

429  Hammond  v.  City  of  San  Le- 
andro,  135  Cal.  450,  67  Pac.  692;  City 
of  Denver  v.  Hayes,  28  Colo.  110,  63 
Pac.  311;  Bras  v.  McConnell,  114 
Iowa,  401,  87  N.  W.  290;  Kline  v. 
City  of  Streator,  78  111.  App.  42; 
People  v.  Seaman,  59  App.  Div.  76, 
69  N.  Y.  Supp.  55;  Murphy  v.  City 
of  San  Luis  Obispo,  119  Cal.  624,  51 
Pac.  1085,  39  L.  R.  A.  444. 


§  102 


ISSUANCE    OF    SECURITIES. 


435 


law  in  regard  to  the  legality  of  the  election  as  affected  by  the 
time,  notice  and  manner  of  holding,  are  regarded  as  conclusive.430 

§  192.    Voters  and  their  qualifications. 

The  qualification  of  electors  at  such  an  election  is  fixed  by  leg- 
islative action,431  and  the  findings  or  conclusions  of  officials  au- 
thorized to  pass  upon  all  matters  of  fact  in  connection  with  such 
qualifications,  the  number  of  votes  cast  or  the  questions  submit- 
ted, is  generally  regarded  as  conclusive  and  the  public  corpora- 
tion estopped  to  deny  such  findings  or  conclusions;432  this  prin- 
ciple of  law  is  especially  true  in  regard  to  those  matters  dehors 
the  record.433  The  presumption  of  law  exists  that  electors  voting 


430  See  post,  §§  209  et  seq.;   Town 
of  Coloma  v.  Eaves,  92  U.  S.  484; 
Marcy  v.  Oswego  Tp.,  92  U.  S.  637; 
Humboldt  Tp.  v.  Long,  92  U.  S.  642; 
Roberts  v.  Bolles,  101  U.  S.  119;  An- 
derson County  Com'rs  v.  Beal,  113 
U.    S.    227;    Madison   County  Sup'rs 
v.  Brown,  67  Miss.  684. 

431  Harshman  v.  Bates  County,  92 
U.  S.  569;  Walnut  Tp.  v.  Wade,  103 
U.  S.  695;  McGraw  v.  Greene  County 
Com'rs.     S9     Ala.     407;     People     v. 
Counts,  89  Gal.  15;  Stockton  v.  Pow- 
ell, 29  Fla.  1,  10  So.  688,  15  L.  R.  A. 
42;    Kaigler  v.  Roberts,  89  Ga.  476, 
15   S.   E.   542;    Heilbron   v.  City  of 
Cuthbert,    96    Ga.    312;     Howell    v. 
City  of  Athens,  91  Ga.  139;  Murdoek 
v.  Weimer,  55  111.  App.  527;  MacKen- 
zie   v.   Wooley,   39   La.   Ann.   944,   3 
So.  128:  Everett  v.  Smith,  22  Minn. 
53;    Webb   v.  Lafayette   County,   67 
Mo.    354;     Cummings    v.    Hyatt,    54 
Neb.   35,    74   N.   W.   411;    Spitzer  v. 
Village  of  Fulton,   33   Misc.  257,   68 
N.  Y.  Supp.  660;    McDowell  v.  Mas- 
sachusetts &  S.  Const.  Co.,  96  N.  C. 
514;    Smith  v.  City  of  Wilmington, 
98  N.  C.  343;  Claybrook  v.  Rocking- 
ham  County  Com'rs,  117  N.  C.  456; 
Hendrick  v.  Culberson,  23  Tex.  Civ. 
App.  409,  56  S.  W.  616;  Day  v.  City 


of  Austin  (Tex.  Civ.  App.)  22  S.  W. 
757;  29  Am.  Law.  Reg.  873-920. 
Acts  authorizing  women  to  vote  at 
such  elections  have  been  held  con- 
stitutional. See  Kimball  v.  Hendee, 
57  N.  J.  Law,  307,  30  Atl.  894; 
Woodley  v.  Town  Council  of  Clio, 
44  S.  C.  374,  22  S.  E.  410;  Wilson  v. 
City  of  Florence,  39  S.  C.  397,  20 
L.  R.  A.  720;  Id.,  40  S.  C.  290.  But 
see  Baltimore  &  O.  R.  Co.  v.  County 
of  Jefferson,  29  Fed.  305. 

«2  County  of  Moultrie  v.  Rocking- 
ham  Ten-Cent  Sav.  Bank,  92  U.  S. 
636;  Livingstone  County  v.  First 
Nat.  Bank  of  Portsmouth,  128  U.  S. 
127;  Reynolds  &  H.  Const.  Co.  v.  City 
of  Monroe,  45  La.  Ann.  1024,  13  So. 
400.  The  official  and  public  an- 
nouncement of  the  result  of  a  mu- 
nicipal election  is  essential  to  the 
validity  of  the  taxes  voted.  State 
v.  School  Dist.  No.  13,  13  Neb.  466; 
McDowell  v.  Massachusetts  &  S. 
Const.  Co.,  96  N.  C.  514,  2  S.  E.  351; 
Cleveland  v.  City  of  Spartanburg,  54 
S.  C.  83,  31  S.  E.  871;  Nelson  v. 
Haywood  County,  89  Tenn.  781,  11 
S.  W.  885. 

483  Citizens'  Sav.  &  Loan  Ass'n  v. 
Perry  County,  156  U.  S.  692.  The 
court  say:  "We  have  seen  that  the 


436 


POWERS. 


possess  the  right  to  exercise  the  franchise,  that  the  votes  received 
were  legal  and  that  no  undue  influence  was  exercised  by  those 
affirmatively  interested  in  the  issue  of  bonds.434  Allegations  in 
proceedings  raising  questions  concerning  the  legality  of  the  elec- 
tion either  as  to  its  time,  place  or  manner  of  holding,  the  number 
of  votes  cast  or  the  right  of  those  voting  to  vote  must  be  definite 
and  point  out  with  particularity  the  alleged  illegal  acts  or  con- 
ditions.436 


§  193.    Canvass  of  election  returns. 

The  election  returns,  unless  otherwise  provided,  should  be  can- 
vassed by  those  officials  upon  whom  the  duty  usually  devolves.439 


county  court  at  its  special  terra  in 
November,  1871,  not  only  certified, 
upon  its  record,  that  all  the  condi- 
tions prescribed  by  its  order  at  the 
January  term,  1870,  had  been  com- 
plied with  by  the  railroad  company 
but  authorized  the  county  judge  to 
make  a  similar  certificate  under 
oath.  It  even  certified  upon  its  rec- 
ords that  the  subscription  had  been 
voted  for  by  a  majority  of  the  qual- 
ified voters  taking  as  the  standard 
the  vote  cast  at  the  preceding  gen- 
eral election  for  county  officers. 
The  number  of  such  voters  who,  at 
the  time  of  election  lived  in  the 
county  was  a  fact  dehors  any  official 
record  of  votes  and  was  to  be  ascer- 
tained by  the  county  court  or  county 
judge  upon  examination.  *  *  * 
It  would  be  rank  injustice  to  per- 
mit the  county,  after  the  lapse  of  so 
many  years  to  say  that  a  majority 
of  the  voters  living  in  the  county 
at  the  time  of  election — a  matter  not 
determinable  by  any  public  record — 
did  not  vote  for  the  subscription." 
Louisville  &  N.  R.  Co.  v.  Davidson 
County  Ct,  33  Tenn.  (1  Sneed)  638. 
43*  Woolley  v.  Louisville  S.  R.  Co., 
93  Ky.  223.  "It  is  clear  that  it  could 
have  been  ascertained  with  judicial 


certainty  how  many  legal  votes  were 
cast  for  and  against  this  subscrip- 
tion and  the  appellants'  silence  upon 
that  subject  creates  the  presumption 
that  the  subscription  obtained  a  ma- 
jority of  the  legal  votes  and  the  de- 
clared result  was  in  accordance  with 
the  vote."  Hendrick  v.  Culberson, 
23  Tex.  Civ.  App.  409,  56  S.  W.  616. 
But  where  the  tax  rolls  fail  to  show 
that  persons  who  voted  at  such  elec- 
tion were  qualified,  the  election  was 
held  prima  facie  illegal. 

435  George  v.  Oxford  Tp.,  16  Kan. 
72.  Woolley  v.  Louisville  S.  R.  Co., 
93  Ky.  223.  In  this  case  the  allega- 
tion contained  the  statement  "that 
the  majority  of  those  voting  in  favor 
of  the  subscription  were  not  un- 
bribed."  The  court  said  that  such  a 
statement  "is  not  equivalent  to  an 
allegation  that  a  majority  of  those 
voting  in  favor  of  the  subscription 
were  bribed.  The  allegation  is  only, 
at  most,  an  implied  or  indirect 
charge.  It  is  not  equivalent  to  di- 
rect charge  of  bribery  made  in  plain 
and  concise  language,  as  the  Civil 
Code  requires."  Luzader  v.  Sar- 
geant,  4  Wash.  299,  30  Pac.  142. 

«6  Brown  v.  Ingalls  Tp.,  81  Fed. 
485.  "Was  it  essential  to  the  valid- 


§  193 


ISSUANCE    OF    SECURITIES. 


437 


The  purpose  of  laws  requiring  the  canvass  of  retuins  within  a 
prescribed  period  after  the  election  is  to  secure  promptness  of 
action  on  the  part  of  the  returning  board  in  order  not  to  deprive 
the  electors  of  the  rights  authorized  to  be  exercised,  through  the 
casting  of  the  necessary  affirmative  votes.437  Such  regulations 
as  well  as  those  providing  for  the  record  of  the  official  returns 
are,  usually,  considered  directory.438  A  canvass,  therefore,  of 
election  returns,  although  made  shortly  after  the  time  limited  or 
prescribed  by  law  has  expired,  does  not,  necessarily,  invalidate 
the  result  of  such  election.439 


Ity  of  the  bonds  that  the  votes 
should  be  canvassed  by  the  county 
commissioners  and  by  them  only? 
If  under  the  laws  of  Kansas  a  board 
of  county  commissioners  is  the  only 
body  which  can  legally  canvass  and 
declare  the  result  of  an  election 
held  for  the  purpose  of  authorizing 
the  issue  of  refunding  bonds  then 
these  bonds  are  void;  for  there 
would  be  no  authority  in  the  town- 
ship board  to  estop  the  township  by 
certifying  to  a  state  of  facts,  the 
determination  of  which  was  not  in- 
trusted to  it  by  law.  Northern 
Bank  of  Toledo  v.  Porter  Tp.,  110 
U.  S.  608;  Dixon  County  v.  Field, 
111  U.  S.  83.  The  act  itself  does 
not  make  any  provision  by  whom 
the  votes  of  such  an  election  should 
be  canvassed  or  the  result  declared. 
*  *  *  Paragraph  442  of  the  Gen- 
eral Statutes  of  1889  (Laws  1875) 
provides  that  before  the  issuing  of 
such  funding  bonds  (as  provided  for 
by  the  act  of  1875)  an  election 
should  be  held  'to  be  conducted  and 
the  returns  thereof  ascertained  in 
the  manner  provided  by  law  for 
holding  general  elections.'  The 
votes  at  general  elections  for  town- 
ship offices  must  be  canvassed  by 
the  board  of  county  commissioners. 
The  act  of  1875  was  in  force  at  the 
time  of  the  passage  of  the  act  of 


1879  under  which  these  bonds  were 
issued.  The  fact  that  no  provision 
was  made  in  the  later  act  as  to 
whom  the  returns  of  the  election 
should  be  made  *  *  *  raises  a 
strong  presumption  that  the  legis- 
lature deemed  the  provisions  of  the 
act  of  1875,  which  related  to  the 
same  subject-matter  and  was  pe- 
culiarly applicable  to  the  objects  for 
which  the  act  of  1879  was  enacted, 
sufficient  without  additional  legis- 
lation. Such  is  the  construction 
adopted  by  the  Kansas  Court  of 
Appeals  in  Faulkenstein  Tp.  v. 
Fitch,  2  Kan.  App.  193."  Board  of 
Education  of  Topeka  v.  Welch,  51 
Kan.  792,  33  Pac.  654;  Allison  v. 
Louisville,  H.  C.  &  W.  R.  Co.,  72 
Ky.  (9  Bush)  247;  City  of  Louis- 
ville v.  Board  of  Park  Com'rs,  112 
Ky.  409,  65  S.  W.  860. 

«7  Stockton  v.  Powell,  29  Fla,  1, 
10  So.  688,  15  L.  R.  A.  42. 

*38  Claybrook  v.  Rockingham 
County  Com'rs,  117  N.  C.  456,  cit- 
ing Wilmington,  O.  &  E.  C.  R.  Co. 
v.  Onslow  County  Com'rs,  116  N.  C. 
563. 

Knight  v.  Town  of  West  Union, 
45  W.  Va.  194,  32  S.  E.  163,  but  see 
Deland  v.  Platte  County,  54  Fed. 
823. 

*39  Syracuse  Tp.  v.  Rollins  (C.  C. 
A.)  104  Fed.  958;  Turpin  v.  Madison 


438 


POWERS. 


194 


§  194.    Necessary  votes. 

The  affirmative  vote  necessary  to  the  authority  secured  at  an 
election  for  an  issue  of  negotiable  bonds  may  be  determined, 
either  in  the  constitution,  the  general  statutes  of  the  state  or  the 
special  authority  providing  for  the  issue  of  bonds  and  calling  the 
election.440  These  provisions  may  require  either  a  certain  pro- 
portion of  the  legal  electors  voting  at  the  election,  of  the  total 
number  registered  and  qualified  to  vote  or  of  the  vote  cast  at 
the  election  upon  the  particular  question,  viz.,  the  issue  of  bonds 
without  regard  to  the  total  vote  upon  other  propositions  or  for 
candidates  for  public  offices.  The  greater  number  of  authorities 
hold  that,  unless  required  by  law,  the  prescribed  proportion  of 
the  legal  voters  necessary  to  carry  the  question  need  not  be  of 
the  total  number  of  registered  or  qualified  voters,  but  such  pro- 
portion of  those  who  actually  voted  at  the  election  and  upon  the 
question  submitted,  namely,  the  issue  of  negotiable  bonds.441 


County  Fiscal  Ct.,  105  Ky.  226,  48 
S.  W.  1085;  Claybrook  v.  Rocking- 
ham  County  Com'rs,  117  N.  C.  456. 

440  Henry  County  v.  Nicolay,  95  U. 
S.  619;  Cass  County  v.  Gillett,  100 
U.  S.  585.  The  constitutional  pro- 
vision requiring  a  two-thirds  vote 
does  not  apply  to  public  charters 
granted  prior  to  the  adoption  of 
the  constitution. 

Post  v.  Pulaski  County  (C.  C.  A.) 
49  Fed.  628;  Office  Specialty  Mfg. 
Co.  v.  County  of  Elbert,  73  Fed. 
324;  Pacific  Imp.  Co.  v.  City  of 
Clarksdale  (C.  C.  A.)  74  Fed.  528; 
Jordan  v.  Cass  County,  3  Dill.  185, 
Fed.  Gas.  No.  7,517;  Town  of  De- 
catur  v.  Wilson,  96  Ga.  251. 

"I  St.  Joseph  Tp.  v.  Rogers,  83 
U.  S.  (16  Wall.)  644;  Cass  County  v. 
Johnston,  95  U.  S.  360.  "All  quali- 
fied voters  who  absent  themselves 
from  an  election  duly  called  are  pre- 
sumed to  assent  to  the  expressed 
will  of  the  majority  of  those  voting 
unless  the  law  providing  for  the 
election  otherwise  declares.  Any 


other  rule  would  be  productive  of 
the  greatest  inconvenience  and 
ought  not  to  be  adopted  unless  the 
legislative  will  to  that  effect  is 
clearly  expressed." 

Carroll  County  v.  Smith,  111  U. 
S.  556;  Madison  County  v.  Priestly, 
42  Fed.  817,  following  Carroll  Coun- 
ty v.  Smith,  111  U.  S.  556. 

Rowland  v.  San  Joaquin  County 
Sup'rs,  109  Cal.  152;  Fritz  v.  City 
&  County  of  San  Francisco,  132  Cal. 
373,  64  Pac.  566;  Howell  v.  City  of 
Athens,  91  Ga.  139;  City  of  South 
Bend  v.  Lewis,  138  Ind.  512,  37  N. 
E.  986.  The  court  in  a  very  elab- 
orate opinion  examines  the  leading 
cases  and  from  them  deduces  "four 
leading  principles  may  be  considered 
as  fully  established,  namely:  First. 
Where  a  measure  is  proposed  to  the 
people  and  its  adoption  made  to 
depend  on  a  vote  of  the  majority, 
those  who  do  not  vote  are  considered 
as  acquiescing  in  the  result  declared 
by  those  who  do  vote  even  though 
those  voting  constitute  a  minority 


194 


ISSUANCE    OF    SECURITIES. 


439 


Where,  however,  the  law  provides  that  the  required  proportion 
shall  be  of  the  total  number  of  registered  and  qualified  voters, 
such  total  number  must  then  be  considered  in  determining  the 
question  whether  the  required  number  voted  affirmatively  in 
favor  of  the  issue  of  bonds.442  This  rule  is  also  true  where  stat- 


of  those  entitled  to  vote.  Second. 
Where  a  question  is  required  to  be 
submitted  at  a  certain  regular  elec- 
tion and  is  made  to  depend  upon  a 
majority  of  the  votes  cast  at  'such 
election*  a  majority  of  all  the  votes 
cast  at  the  election  is  meant  and 
not  merely  a  majority  of  the  votes 
cast  on  that  particular  question. 
Third.  Where  at  a  general  election 
a  proposition  is  submitted  to  the 
voters,  the  result  of  the  vote  on  the 
proposition  will  be  determined  by 
the  votes  cast  for  and  against  it,  in 
the  absence  of  a  provision  in  the 
law,  under  which  it  is  submitted, 
to  the  contrary.  Fourth.  Where  a 
legislative  body  provides  that  a 
proposition  shall  be  submitted  to 
the  voters,  that  those  in  favor  of  the 
proposition  shall  cast  an  affirmative 
vote  and  that  those  electors  op- 
posed to  the  proposition  shall  cast 
a  negative  vote,  and  that  a  'major- 
ity of  the  votes  given'  shall  be 
requisite  to  the  adoption  of  the  pro- 
posed measure,  then  the  only  votes 
to  be  counted  and  considered  in  de- 
termining whether  the  measure  Is 
adopted  or  not,  are  those  which  are 
given  on  the  particular  question  in- 
volved Of  the  correctness  of  these 
four  principles,  we  think  there  can 
be  no  dispute." 

Cutler  v.  Madison  County  Sup'rs, 
56  Miss.  115;  May  v.  Bermel,  20 
Misc.  515,  45  N.  Y.  Supp.  913;  Louis- 
ville &  N.  R.  Co.  v.  County  Ct.  of 
Davidson,  33  Tenn.  (1  Sneed)  638. 
"How  can  we  know  how  many  legal 
voters  there  are  in  a  county  at  any 


given  time?  We  cannot  judicially 
know  it.  If  it  were  proved  that 
the  vote  was  much  larger  in  the  last 
preceding  political  election,  or  by 
the  last  census  by  the  official  re- 
turns, or  the  examination  of  the 
witnesses,  it  would  only  be  a  cir- 
cumstance, certainly  not  conclusive 
that  such  was  the  case  at  the  time 
of  this  election.  *  *  *  When  a 
question  or  an  election  is  put  to  the 
people,  and  is  made  to  depend  on 
the  vote  of  a  majority,  there  can  be 
no  other  test  of  the  number  entitled 
to  vote  but  the  ballot  box.  If  in 
fact,  there  be  some  or  many  who  do 
not  attend  and  exercise  the  priv- 
ilege of  voting,  it  must  be  presumed 
that  they  concur  with  the  majority 
who  do  attend,  if  indeed  they  can 
be  known  at  all  to  have  an  ex- 
istence." 

Faulkner  v.  City  of  Seattle,  19 
Wash.  320,  53  Pac.  365;  Miller  v. 
School  Dist.  No.  3,  5  Wyo.  217,  39 
Pac.  879. 

442  Floyd  County  v.  State,  112  Ga. 
794;  Smith  v.  City  of  Dublin,  113 
Ga,  833,  39  S.  E.  327;  Onstott  v. 
People,  123  111.  489,  15  N.  E.  34. 
"By  the  terms  of  the  fourth  section 
of  the  act  under  which  the  election 
was  held  the  county  authorities 
were  not  empowered  to  issue  the 
bonds  unless  a  majority  of  the  quali- 
fied voters  of  the  county  voted  in 
favor  of  issuing  bonds,  taking  as  a 
standard  the  number  of  votes  cast 
at  the  last  general  election  held  in 
the  county  next  before  this  vote  was 
had.  This  was  not  done.  *  *  * 


440 


POWERS. 


§  194 


utory  provisions  require  the  affirmative  vote  of  a  prescribed  num- 
ber of  all  the  legal  electors  voting  at  the  election ;  then  the  whole 
number  of  votes  cast  at  the  election  must  be  taken  into  considera- 
tion in  ascertaining  whether  or  not  the  necessary  affirmative  vote 
has  been  cast  without  considering  the  vote  on  the  question  of  a 
bond  issue.4*3 


We  are  of  opinion  as  the  proposition 
to  issue  the  bonds  did  not  receive  the 
vote  required  by  statute,  the  coun- 
ty court  had  no  right  to  issue  the 
bonds,  and  the  bonds  being  illegal, 
taxes  could  not  properly  be  levied 
and  collected  to  pay  interest  there- 
on." 

Kentucky  Union  R.  Co.  v.  Bour- 
bon County,  85  Ky.  98;  Hawkins 
v.  Carroll  County  Sup'rs,  50  Miss. 
735;  Kemp  v.  Town  of  Hazlehurst, 
80  Miss.  443,  31  So.  908;  State  v. 
Harris,  96  Mo.  29,  8  S.  W.  794.  It 
was  here  held  that  under  Mo.  Const. 
1865,  art.  11,  §  14,  requiring  an 
assenting  vote  of  two-thirds  of  all 
the  qualified  voters  of  the  corpora- 
tion, "two-thirds  of  the  qualified 
voters  voting  at  an  election  was 
not  sufficient;  mere  inaction  of  vot- 
ers in  failing  to  vote  did  not  ex- 
press assent." 

State  v.  Winkelmeier,  35  Mo.  103; 
State  v.  Renick,  37  Mo.  270;  State 
T.  Curators  of  State  University,  57 
Mo.  178;  State  v.  Brassfield,  67  Mo, 
331;  Lane  v.  Schomp,  20  N.  J.  Eq, 
(5  C.  E.  Green)  82;  McDowell  v. 
Massachusetts  &  S.  Const.  Co.,  96  N. 
C.  514;  Duke  T.  Brown,  96  N.  C. 
127;  Lynch  burg  &  D.  R.  Co.  v.  Per- 
son County  Com'rs,  109  N.  C.  159; 
Wilson  v.  City  Council  of  Florence, 
89  S.  C.  397,  17  S.  E.  835,  20  L.  R. 
A.  720,  but  see  Citizens'  Sav.  &  Loan 
Ass'n  v.  Perry  County,  156  U.  S. 
692. 

The  Federal  courts  usually  fol- 
low the  decisions  of  the  state  courts 


construing  such  provisions.  See 
Cass  County  v.  Johnston,  95  U.  S. 
360;  Cass  County  v.  Jordan,  95  U. 
S.  373. 

443  St.  Joseph  Tp.  v.  Rogers,  83 
U.  S.  (16  Wall.)  644;  Cass  County 
v.  Johnston,  95  U.  S.  360,  overrul- 
ing Harshman  v.  Bates  County,  92 
U.  S.  569.  So  far  as  it  declares  the 
law  to  be  unconstitutional,  the  court 
here  said  that  a  condition  requiring 
the  consent  of  a  prescribed  propor- 
tion of  the  legal  voters  was  satis- 
fied by  a  majority  of  those  voting, 
upon  the  principle  that  all  quali- 
fied voters  who  absented  themselves 
from  an  election  held  on  public  no- 
tice duly  given  are  presumed  to  as- 
sent to  the  expressed  will  of  the  ma- 
jority of  those  voting  unless  the  law 
providing  for  the  election  otherwise 
expressly  declares. 

Carroll  County  v.  Smith,  111  U. 
S.  556,  disapproving  Hawkins  v. 
Carroll  County  Sup'rs,  50  Miss.  735; 
Cronly  v.  City  of  Tucson  (Ariz.)  56 
Pac.  876;  People  v.  Town  of  Berke- 
ley, 102  Cal.  298,  23  L.  R.  A.  838; 
People  v.  Garner,  47  111.  246;  People 
v.  Winant,  48  111.  263;  City  of  South 
Bend  v.  Lewis,  138  Ind.  512;  Brown 
v.  Tinsley,  14  Ky.  L.  R.  745,  21  S. 
W.  535;  Slack  v.  Maysville  &  L.  R. 
Co.,  52  Ky.  (13  B.  Mon.)  1;  Steb- 
bins  ,v.  Judge  of  Superior  Ct.,  108 
Mich.  693 ;  Taylor  v.  Taylor,  10  Minn. 
107  (Gil.  81);  Everett  v.  Smith,  22 
Minn.  53;  State  v.  Linn  County  Ct., 
44  Mo.  504;  Ranney  v.  Baeder,  50 
Mo.  600;  State  v.  Benton,  29  Neb. 


§   195  ISSUANCE    OP    SECURITIES. 

§  195.    Negotiable  securities;  delivery. 


441 


Delivery  to  purchasers  by  the  proper  officials,  and  when  duly 
authorized,  of  negotiable  bonds  issued  by  public  corporations,  is 
essential  to  their  validity.444  So  long  as  the  bonds  remain  un- 


460,  45  N.  W.  794;  Bryan  v.  City  of 
Lincoln,  50  Neb.  620,  35  L.  R.  A. 
752;  State  v.  Rube,  24  Nev.  251,  52 
Pac.  274;  City  of  Asbland  v.  Cul- 
bertson,  19  Ky.  L.  R.  1812,  44  S. 
W.  441;  Day  v.  City  of  Austin  (Tex. 
Civ.  App.)  22  S.  W.  757. 

**•*  Lewia  v.  Barbour  County 
Com'rs,  105  U.  S.  739.  The  certifi- 
cate of  delivery  to  the  proper  offi- 
cial is  conclusive  as  to  such  fact. 

Young  v.  Clarendon  Tp.,  132  U. 
S.  340.  Where  bonds  are  never  in- 
dorsed or  delivered  by  the  treasurer 
they  never  become  operative. 

Bergen  County  Freeholders  v. 
Merchants'  Exch.  Nat.  Bank,  21 
Blatchf.  13,  12  Fed.  743;  State  v. 
Suwannee  County  Com'rs,  21  Fla.  1; 
Lake  County  Com'rs  v.  Linn,  29  Colo. 
446,  68  Pac.  839.  The  exchange  of 
invalid  warrants  for  bonds  duly  au- 
thorized does  not  invalidate  such 
bonds  in  the  hands  of  bona  fide  pur- 
chasers. 

Thomas  v.  Morgan  County,  39  111. 
496;  Town  of  Prairie  v.  Lloyd,  97 
111.  180.  Where  a  town  has  ample 
authority  for  issuing  its  bonds  to 
a  certain  railroad  company  as  a 
donation  or  subscription,  and  the 
bonds  are  executed  in  proper  form 
and  made  payable  to  the  proper 
company,  but  are  delivered  to  the 
secretary  of  a  new  company  and 
there  is  nothing  pertaining  to  them, 
or  which  could  have  been  ascer- 
tained from  the  record,  indicating 
their  delivery  to  one  not  entitled  to 
receive  them,  the  bonds  cannot  be 
held  invalid  by  reason  of  such  al- 
leged improper  delivery  after  they 


have  passed  into  the  hands  of  in- 
nocent holders. 

Thompson  v.  Village  of  Mecosta, 
127  Mich.  522,  86  N.  W.  1044;  Ports- 
mouth Sav.  Bank  v.  Village  of  Ash- 
ley, 91  Mich.  670.  A  resolution  of 
the  village  council  authorizing  the 
president  and  clerk  to  sign  water- 
works bonds  confers  no  authority 
upon  those  officers  to  issue  and  dis- 
pose of  the  bonds  and  if  issued  and 
disposed  of  without  such  authority 
they  are  not  binding  on  the  vil- 
lage. 

Town  of  Lexington  v.  Union  Nat. 
Bank,  75  Miss.  1,  22  So.  291;  Wash- 
ington County  v.  David,  2  Neb. 
Unoff.  649,  89  N.  W.  737.  "We  have 
no  doubt  that  if  there  was  an  entire 
want  of  power  to  issue  these  bonds 
the  subsequent  conduct  of  the  offi- 
cers of  the  county  towards  the  bonds, 
so  issued  could  not  create  an  es- 
toppel which  would  supply  their 
want  of  original  authority.  We 
are  inclined  to  the  view  that  a 
more  liberal  rule  is  indulged  in 
resolving  doubts  as  to  the  existence 
of  power  to  issue  bonds  when  the 
consideration  for  the  bonds  has  been 
received  by  the  municipality  and  the 
bonds,  even  though  non-negotiable, 
have  passed  into  the  hands  of  pur- 
chasers for  value  and  their  validity 
is  not  seasonably  questioned  than 
would  be  indulged  in  if  the  ques- 
tion of  the  want  of  power  is  chal- 
lenged before  or  even  immediately 
after  the  issue  of  the  bonds." 

In  Ledwich  v.  McKim,  53  N.  Y. 
314,  the  court  in  speaking  of  the 
implied  authority  of  an  agent  to 


442 


POWERS. 


§  195 


delivered,  it  has  been  held  repeatedly,  equities  between  parties 
who  may  be  entitled  to  receive  them  and  the  public  corporation 
can  be  investigated  and  determined  by  the  courts  which  could 
not  be  so  considered  after  delivery.445  In  some  cases  the  word  "is- 
sue" or  "issuance"  is  held  to  include  delivery,  and  the  issue  is 
not  regarded  complete  until  delivery  is  made.446  Though  other 


deliver  or  put  in  circulation  a  ne- 
gotiable instrument,  said:  "But 
this  authority  is  not  Implied  from 
the  fact  alone,  that  the  paper  is  in 
hands  other  than  those  of  him  who 
is  to  be  bound,  but  from  that  fact 
joined  with  this  other  fact,  that  it 
has  been  by  him  intrusted  to  those 
hands  for  the  purpose  and  with  the 
intent  that  it  shall  go  into  use  and 
circulation." 

Prairie  School  Tp.  v.  Haseleu,  3 
N.  D.  328,  55  N.  W.  938;  City  of 
Jefferson  v.  Marshall  Nat.  Bank,  18 
Tex.  Civ.  App.  539;  Jones  v  City 
of  Seattle,  19  Wash.  669;  Germania 
Sav.  Bank  v.  Village  of  Suspension 
Bridge,  73  Hun  (N.  Y.)  590.  A 
municipality  is  not  liable  on  bonds 
stolen  and  put  on  the  market  be- 
fore they  were  delivered  by  the 
municipal  corporation,  even  in  the 
hands  of  a  bona  fide  holder.  See, 
however,  Cooke  v.  United  States,  12 
Blatchf.  49,  Fed.  Cas.  No.  3,178, 
where  the  treasurer  of  a  city  who 
had  negotiable  bonds  lawfully  in 
his  hands,  embezzled  the  bonds  and 
coupons  and  absconded  with  the  pro- 
ceeds, the  city  was  held  liable  to  the 
bona  fide  holder.  Copper  v.  Jersey 
City,  44  N.  J.  Law,  634. 

*45  Alessandro  Irr.  Dist.  v.  Sav- 
ings &  Trust  Co.,  88  Fed.  928.  Where 
corporate  bonds  recite  their  issue 
under  a  valid  statute  in  pursuance 
of  its  provisions  and  nothing  upon 
their  face  indicates  their  invalidity 
a  defendant  to  a  bill,  seeking  their 
sale  in  part  satisfaction  of  certain 


liens,  may  by  cross  bill  show  that 
they  are  in  reality  void  and  thus 
prevent  the  court  from  decreeing  a 
sale,  whereby  they  may  pass  for 
value  to  innocent  purchasers. 

D'Esterre  v.  City  of  New  York, 
104  Fed.  605.  "If  the  power  exists 
in  the  municipality  to  issue  nego- 
tiable bonds  the  bona  fide  holder  is 
protected  against  irregularities  on 
the  part  of  its  agents  in  negotiating 
them  with  the  public.  The  com- 
plainant, as  well  as  the  original  pur- 
chasers, was  bound  to  know  that  the 
supervisor  had  no  authority  to  sell 
the  bonds  on  credit;  but  he  was  not 
bound  to  know  that  the  supervisor 
had  made  such  a  sale  and  when  he 
found  that  they  had  been  negotiated 
with  the  public  and  delivered  he  was 
entitled  to  assume  in  the  absence  of 
notice  to  the  contrary  that  the  super- 
visor had  negotiated  them  regularly 
and  legitimately."  Citing  Mercer 
County  v.  Racket,  68  U.  S.  (1  Wall.) 
83;  Town  of  Grand  Chute  v.  Wine- 
gar,  82  U.  S.  (15  Wall.)  355;  and 
Stewart  v.  Lansing,  104  U.  S.  505; 
McCurdy  v.  School  Dist.  No.  1,  127 
Mich.  210,  86  N.  W.  803;  Schmid  v. 
Village  of  Frankfort,  131  Mich.  197, 
91  N.  W.  131;  People  v.  Walter,  68 
N.  Y.  403;  Satterlee  v.  Strider,  31 
W.  Va.  781. 

**e  Corning  v.  Meade  County 
Com'rs,  102  Fed.  57.  "The  word  'is- 
sued' ordinarily  means  'emitted'  or 
'sent  forth'  and  in  the  absence  of 
other  definition,  that  must  be  taken 
to  be  the  sense  in  which  it  was  used 


§  195 


ISSUANCE    OF    SECURITIES. 


443 


authorities  hold  to  the  contrary  and  still  others  hold  that  the 
term  "issue"  applies  only  to  delivery.447  It  is  not  necessary  that 
the  formal  issue,  namely,  the  mechanical  making  of  the  bonds  or 
their  delivery,  should  be  done  at  the  precise  time  authorized  by 
law;  a  substantial  variance  from  this  date  will  not  invalidate 
them.448  If  certain  conditions  are  required  to  be  fulfilled  or  per- 
formed by  those  who  are  entitled  to  the  bonds,  the  delivery  can 
be  delayed  until  such  conditions  or  obligations  are  performed  and 
this  delay,  unless  otherwise  provided  by  law,  does  not  render  void 
such  bonds  upon  the  performance  of  the  conditions;  then  deliv- 


in  the  legislation  of  Kansas."  And 
the  court  further  say:  "Any  other 
construction  would  have  rendered 
the  act  impracticable  and  useless, 
because  it  was  only  in  reliance  upon 
a  favorable  vote  already  cast,  and 
upon  a  subscription  actually  made 
that  railroad  companies  could  be  in- 
duced to  build  their  roads  into  many 
of  the  counties  of  Western  Kansas. 
No  reason  occurs  to  us  why  the  word 
'issued'  in  the  former  limitation 
should  be  given  a  meaning  so  dif- 
ferent, so  unique  and  so  broad  as 
to  make  it  cover  the  presentation 
of  the  petition  and  call  for  the  elec- 
tion, while  in  the  latter  it  retains 
its  ordinary  significance,  moreover, 
if  the  meaning  of  this  word  was  am- 
biguous, the  practical  construction 
given  to  it  and  to  the  proviso  in 
which  it  occurs  by  the  officers  of  the 
state  and  county  and  the  purchasers 
of  the  bonds  while  they  were  acting 
and  contracting  under  it  is  entitled 
to  great  consideration  and  ought 
not  to  be  modified  or  avoided  to  the 
destruction  of  rights  resting  upon  it, 
unless  that  construction  was  clearly 
and  palpably  erroneous." 

«7  Perkins  County  v.  Graff,  114 
Fed.  441.  The  verb  "issue"  means 
to  emit  or  send  forth  and  it  does  not 
embrace  the  preliminary  acts  of 


signing  and  dating  but  is  confined  to 
the  delivery  of  bonds. 

Moller  v.  City  of  Galveston,  23 
Tex.  Civ.  App.  693,  57  S.  W.  1116. 
City  bonds  legally  executed,  certified 
by  the  attorney  general  and  regis- 
tered by  the  comptroller,  though  not 
yet  sold  are  issued. 

4*8  in  Chickaming  v.  Carpenter, 
106  U.  S.  663,  the  court  said:  "We 
see  nothing  in  the  statutes  which 
takes  away  from  the  township  au- 
thorities the  right  to  execute  and 
deliver  the  bonds  if  for  any  reason 
It  Is  not  done  within  the  time 
named.  The  word  'shall'  as  used  in 
the  statute  undoubtedly  gives  the 
township  officers  the  whole  of  sixty 
days  to  get  the  bonds  out,  but  it  cer- 
tainly does  not  imply  that  if  they 
fail  to  do  it  voluntarily  within  the 
time  they  cannot  be  compelled  to  do 
so  afterwards.  And  if  they  can  be 
compelled  to  do  so,  it  necessarily 
follows  that  they  should  do  it  vol- 
untarily." School  Dist.  No.  40  v. 
Gushing,  8  Kan.  App.  728,  54  Pac. 
924;  State  v.  Lake  City,  25  Minn. 
404;  Woodbridge  v.  City  of  Duluth, 
57  Minn.  256;  Town  of  Lexington  v. 
Union  Nat.  Bank,  75  Miss.  1,  22  So. 
291;  Moller  v.  City  of  Galveston,  23 
Tex.  Civ.  App.  693,  57  S.  W.  1116. 
Municipal  bonds  issued  more  than 


444 


POWERS. 


§  196 


ery  should  be  made  and  can  be  demanded  from  the  corporate 
officials."9 

§  196.    Necessity  for  registration. 

As  one  of  the  required  formalities  that  negotiable  bonds  when 
issued  may  become  valid  and  enforceable  obligations  outstanding 
against  the  public  corporations  issuing  them,  there  may  be  pro- 
visions, either  in  the  general  statutes  or  in  the  special  act  grant- 
ing authority,  requiring  their  registration  in  some  designated 
office  and  by  some  designated  officer.45*  If  bonds  contain  re- 


two  years  after  passage  of  ordinance 
providing  for  their  payment  held 
valid. 

*«  County  of  Henry  v.  Nicolay,  95 
U.  S.  619.  "But  under  the  decisions 
of  this  court  the  purchasers  of  the 
bonds  were  not  bound  to  know 
whether  or  not  the  proceedings  of 
the  company  were  regular.  The 
charter  of  the  Tebo  and  Neosho  Com- 
pany contained  the  power  to  con- 
struct the  branch  and  gave  the  coun- 
ty court  power  to  subscribe  stock 
for  it;  and  the  Act  of  1868  author- 
ized such  branch  and  stock  to  be 
an  independent  interest  and  the 
bonds  on  their  face  simply  showed 
that  they  were  made  to  the  parent 
company,  'to  the  use  and  in  the  name 
of  the  Clinton  and  Memphis  Branch,' 
to  'aid  in  building  said  branch.'  The 
purchaser  therefore  was  appraised 
by  the  law  that  power  existed  in  the 
county  court  to  issue  such  bonds, 
without  any  election  of  the  people 
and  there  was  nothing  on  their  face 
to  show  that  they  were  not  regularly 
issued.  It  was  not  incumbent  on 
him  to  inquire  whether  the  rail- 
road company  had  pursued  all  the 
regular  steps  necessary  to  entitle 
it  to  receive  the  bonds.  Its  agents, 
that  is,  the  agents  of  the  branch 
road,  had  them  for  sale  and  he  had 


a  right  to  presume  that  they  were 
lawfully  entitled  to  them." 

Perkins  County  v.  Graff,  114  Fed. 
441;  Thomas  v.  County  of  Morgan, 
59  111.  479;  Town  of  Eagle  v.  Kohn, 
84  111.  292.  It  is  not  essential  to 
the  validity  of  the  subscription  or 
bonds  issued  thereunder  that  the 
conditions  annexed  shall  have  first 
been  performed.  If  performed  after- 
wards the  bonds  will  be  valid. 

Gardner  v.  Haney,  86  Ind.  17. 
Bonds  issued  to  build  a  school- 
house  are  not  necessarily  void  be- 
cause the  schoolhouse  was  not  con- 
structed within  the  corporation  lim- 
its. 

«o  Rock  Creek  Tp.  v.  Strong,  96 
U.  S.  271;  Anthony  v.  Jasper  Coun- 
ty, 101  U.  S.  693;  Coler  v.  City  of 
Cleburne,  131  U.  S.  162;  Douglass  v. 
Lincoln  County,  2  McCrary,  449,  5 
Fed.  775.  Municipal  bonds  are  not 
duly  "issued"  under  the  laws  of 
Missouri  unless  the  same  have  been 
duly  registered  in  the  office  of  the 
state  auditor. 

Prickett  v.  City  of  Marceline,  65 
Fed.  469;  D'Esterre  v.  City  of  Brook- 
lyn, 90  Fed.  586;  Wood  v.  City  of 
Louisiana,  5  Dill.  122,  Fed.  Gas.  No. 
17,948;  First  Nat.  Bank  of  North 
Bennington  v.  Town  of  Arlington, 
16  Blatchf.  57,  Fed.  Cas.  No.  4,806. 


196 


ISSUANCE    OF    SECURITIES. 


445 


citals  to  the  effect  that  they  have  been  duly  registered,  if  they 
contain  such  statement  or  if  a  certificate  of  registration  is  en- 


Validity  of  bonds  not  affected  by 
the  omission  to  register  them  in  the 
town  clerk's  office.  The  provision 
being  held  directory  merely  as  it 
did  not  provide  that  the  bonds  should 
not  be  binding  until  registered. 

St.  Louis  County  Com'rs  v.  Nettle- 
ton,  22  Minn.  356.  The  failure  to 
register  railroad  aid  bonds  with  the 
auditor  of  the  city  as  required  by 
law  does  not  prevent  county  offi- 
cials from  providing  for  the  pay- 
ment of  interest. 

State  v.  Babcock,  19  Neb.  223.  In 
this  case  the  court  said:  "There  is 
a  plain  provision  of  the  constitution 
applicable  to  bonds  issued  as  dona- 
tions for  railroads  and  other  works 
of  internal  improvement  and  neither 
the  city  nor  the  defendants  can  dis- 
regard it  with  impunity.  Who  is  to 
blame  for  the  failure  to  have  such 
bonds  properly  certified  does  not  ap- 
pear, but  until  so  certified  it  was 
the  duty  of  the  defendants  to  re- 
fuse to  certify  refunding  bonds  to 
take  their  place."  The  constitutions 
of  Nebraska,  North  Dakota  and  Wy- 
oming contain  provisions  to  the  ef- 
fect that  bonds  shall  be  invalid  un- 
less certified  by  a  designated  offi- 
cer. 

State  v.  Roggen,  22  Neb.  118;  Ben- 
well  v.  City  of  Newark,  55  N.  J. 
Eq.  260;  Whann  v.  Coler,  159  N.  Y. 
535;  Flagg  v.  School  Dist.  No.  70, 
4  N.  D.  30,  58  N.  W.  499;  Ter.  v. 
Hopkins,  9  Okl.  133.  The  officer 
required  by  law  to  register  bonds 
has  no  power  to  pass  upon  or  deter- 
mine their  validity. 

Walker  v.  State,  12  S.  C.  200; 
Lackawana  Iron  &  Coal  Co.  v.  Town 
of  Little  Wolf,  38  Wis.  152.  The 
court  said:  "The  act  fails  to  pro- 


vide who  shall  obtain  such  certifi- 
cate, when  it  shall  be  made  or  what 
shall  be  its  effect.  It  does  not  pro- 
vide that  the  certificate  shall  be  an- 
nexed to  the  bonds  before  they  are 
issued  or  that  without  it  the  bonds 
shall  be  invalid.  It  contains  no 
language  which  raises  a  presump- 
tion that  the  legislature  intended 
that  the  annexing  of  such  certifi- 
cate to  the  bonds  should  precede  the 
delivery  thereof  or  be  essential  to 
their  validity.  The  certificate  af- 
fords the  town  no  protection  what- 
ever and  it  seems  to  be  of  no  conse- 
quence to  the  town  whether  it  is 
annexed  to  the  bonds  or  not.  Under 
these  circumstances  it  seems  very 
clear  to  our  minds  that  the  provi- 
sion for  annexing  the  certificate  of 
the  county  clerk  was  enacted  for  the 
purpose  of  facilitating  the  negotia- 
tion of  the  bonds  by  stamping  upon 
them  additional  evidence  that  they 
were  executed  by  the  proper  town 
officers;  and  that  the  legislature  did 
not  intend  that  the  certificates 
should  be  essential  to  a  valid  exe- 
cution and  issue  of  the  bonds." 

451  Converse  v.  City  of  Ft.  Scott, 
92  U.  S.  503;  Rock  Creek  Tp.  v. 
Strong,  96  U.  S.  271.  A  municipal 
bond  on  the  back  of  which  is  in- 
dorsed the  certificate  of  the  auditor 
of  the  state  that  it  has  been  duly 
registered  in  his  office  according  to 
law  is  not  invalid  because  he  failed 
to  make  in  his  office  an  entry  of  his 
action. 

In  German  Sav.  Bank  v.  Franklin 
County,  128  U.  S.  526-540,  Mr.  Jus- 
tice Blatchford  said:  "The  regis- 
tration of  the  bonds  by  the  state 
auditor  has  nothing  to  do  with  any 
of  the  terms  or  conditions  on  which 


446 


POWERS. 


§  196 


dorsed  upon  them,  this  will  be  held  conclusive  of  the  facts  recited 
in  such  statement  or  endorsement  irrespective  of  the  true  facts.453 
Some  authorities  hold  that  a  registration  does  not  deprive  bonds 
of  their  negotiable  character  or  quality.458 


the  stock  was  voted  and  subscribed, 
neither  the  registration  nor  the  cer- 
tificate of  registry  covers  or  certi- 
fies any  fact  as  to  compliance  with 
the  conditions  prescribed  in  the 
vote  on  which  alone  the  bonds  were 
to  be  issued." 

Comanche  County  v.  Lewis,  133 
U.  S.  198.  The  certificate  of  the  au- 
ditor of  the  state  thereon  that  the 
bonds  were  regularly  issued,  that 
the  signatures  were  genuine  and 
that  the  bond  had  been  duly  regis- 
tered, is  conclusive  upon  the  munici- 
pality when  the  officer  so  certifying 
is  charged  with  that  duty. 

City  of  Cairo  v.  Zane,  149  U.  3. 
122;  Flagg  v.  School  Dist.  No.  70, 
4  N.  D.  30,  58  N.  W.  499,  25  L.  R. 
A.  363.  The  decision  of  the  offi- 
cer evidenced  by  registering  and 
certifying  the  bonds  that  conditions 
had  been  complied  with  was  final, 
as  against  the  district,  in  favor  of 
a  bona  fide  purchaser  without  no- 
tice. 

Priestly  v.  Watkins,  62  Miss.  798. 
"Where  an  act  of  the  legislature  re- 
quires that  the  holders  of  all  out- 
standing bonds  of  a  specified  coun- 
ty shall  present  the  same  for  regis- 
tration by  the  clerk  of  the  board  of 
supervisors  within  a  prescribed  time 
and  shall  simultaneously  file  an  affi- 
davit— 'stating  the  number  of  each 
bond,  the  date  of  its  issuance,  the 
amount  thereof  and  the  names  of 
the  different  persons  through  whom 
the  holder  derives  his  title'  and  pro- 
vides that,  'unless  such  affidavit  is 
filed  the  said  clerk  shall  not  regis- 
ter the  same,  and  payment  of  all 
Interest  or  principal  thereof  shnll  be 


stopped,'  such  act  is,  as  to  valid 
bonds  of  the  county,  payable  to  bear- 
er and  not  due,  unconstitutional  and 
void  because  it  violates  in  two  par- 
ticulars, that  provision  in  the  state 
and  Federal  constitutions,  respect- 
ively which  protects  from  impair- 
ment the  obligations  of  contracts, 
viz.,  First,  in  creating  a  statute  of 
limitations  against  bonds  not  due 
and  upon  which  no  cause  of  action 
has  arisen,  and  second,  in  requir- 
ing an  affidavit  showing  the  hold- 
er's chain  of  title  to  bonds  payable 
to  bearer,  thus  engrafting  condi- 
tions and  imposing  burdens  upon 
the  contract  not  contained  in  it  nor 
contemplated  by  the  parties  to  it." 
In  the  case  of  Hardeman  County  v. 
Foard  County,  19  Tex.  Civ.  App.  212, 
47  S.  W.  30,  536,  the  exact  phrase- 
ology of  the  registration  entry  im- 
material since  statute  does  not  pre- 
scribe what  the  registration  shall 
contain. 

452  D'Esterre  v.  City  of  Brooklyn, 
90  Fed.  586;  Manhattan  Sav.  Inst. 
v.  New  York  Nat.  Exch.  Bank,  170 
N.  Y.  58.  Municipal  coupon  bonds 
with  the  corporate  seal  affixed,  reg- 
istered in  the  city  clerk's  office,  as 
required  by  statute  and  delivered  to 
the  purchaser  with  the  space  for  the 
name  of  the  payee  left  blank,  are 
negotiable.  The  court  said:  "The 
provision  for  registration  appears 
to  be  designed  to  exhibit  the  regu- 
larity and  the  authority  of  the  is- 
sue and  not  to  prescribe  the  form 
of  the  obligation."  But  see  the  fol- 
lowing cases  and  authorities  to  the 
contrary. 

In    Cronin    v.    Patrick    County,   4 


§  197 


ISSUANCE    OF    SECURITIES. 


447 


§  197.    Official  signatures  and  seals. 

The  validity  of  negotiable  bonds  depends,  originally,  upon  the 
authority  to  issue  and  the  manner  of  its  execution  as  granted  to 
public  corporations  by  legislative  or  constitutional  authority. 
Assuming  their  legality  in  this  respect,  it  is  still  necessary  to  their 
validity  that  they  be  signed  by  such  officers  or  persons  as  are 
legally  capable  of  binding  the  corporation.  These  may  be  either 
those  especially  designated  by  the  special  authority  for  the  issue 
of  bonds  or  general  officials,  the  scope  of  whose  authority  and 
power  would  include  the  performance  of  such  an  act.453  The 


Hughes,  524-530,  89  Fed.  79,  where 
the  court  say:  "There  are  two 
classes  of  public  bonds  known  to 
the  stock  markets  essentially  dis- 
tinct in  character  and  intended  to 
be  so.  They  are  negotiable  bonds  and 
registered  bonds.  Those  of  the  first 
class,  the  negotiable  bonds,  are  made 
payable  to  some  payee  or  his  order; 
in  which  case  they  are  transferable 
by  indorsement  and  delivery;  or. 
they  are  made  payable  to  a  payee 
or  bearer,  or  simply  to  bearer  in 
which  case  they  are  transferable 
by  mere  delivery.  The  other  class, 
the  registered  bonds,  are  made  pay- 
able to  an  obligee  or  his  assigns  and 
they  are  only  transferable  by  regu- 
lar assignment  on  books  of  the 
obligor." 

In  Savannah  &  M.  R.  Co.  v.  Lan- 
caster, 62  Ala.  555-563,  the  court 
said:  "The  provision  that  the 
bonds  might  be  'registered  and  made 
payable  by  transfer  only  on  the 
books  of  the  company,'  did  not  itself 
make  them  non-negotiable  by  mere 
manual  transfer;  it  was  only  a  prom- 
ise which  entitled  those  who  should 
become  holders  of  them  at  any  time 
to  have  them  changed  from  that 
character  and  converted  into  regis- 
tered bonds."  Simonton,  Mun.  Bonds, 
§  115. 

453  Town  of  Grand  Chute  v.  Wine- 


gar,  82  U.  S.  (15  Wail.)  355;  Lynde 
v.  County  of  Winnebago,  83  U.  S. 
(16  Wall.)  6.  In  the  absence  of 
the  county  judge,  the  county  clerk 
acting  in  such  capacity  may  do  cer- 
tain ministerial  acts  such  as  execut- 
ing and  issuing  bonds,  etc. 

Town  of  Aroma  v.  Auditor  of 
State,  15  Fed.  843.  Bonds  signed 
by  supervisors  but  not  by  county 
clerk  sufficiently  executed.  Swan  v. 
Arkansas  City,  61  Fed.  478;  Thayer 
v.  Montgomery  County,  3  Dill.  389, 
Fed.  Gas.  No.  13,870;  Phelps  v. 
Town  of  Lewiston,  15  Blatchf.  132, 
Fed.  Cas.  No.  11,076.  Commission- 
ers having  power  to  issue  coupons, 
a  statement  in  the  bonds  that  they 
have  caused  one  of  their  number  to 
sign  the  coupons  is  equivalent  to 
a  signing  of  the  coupons  by  all. 

First  Nat.  Bank  of  North  Ben- 
nington  v.  Town  of  Arlington,  16 
Blatchf.  57,  Fed.  Cas.  No.  4,806. 
Where  a  statute  requires  that  bonds 
shall  be  signed  by  the  selectmen,  if 
signed  by  two  they  are  valid. 

Currie  v.  Town  of  Lewiston,  21 
Blatchf.  236,  15  Fed.  377.  The  term 
"officers  of  a  town"  includes  the 
supervisors,  and  bonds  having  been 
executed  by  four  of  the  officers  so 
named,  though  the  supervisor  was 
not  one  of  them,  are  valid. 

Dent   v.   Cook,  45  Ga.   323;    Nian- 


448 


POWERS. 


197 


courts  require,  usually,  only  a  substantial  compliance  with  pro- 
visions of  the  law  relating  to  ministerial  or  mechanical  acts  in 
connection  with  the  issue  of  bonds.  From  this  statement  it  must 
not  be  inferred,  however,  that  gross  irregularities  in  their  formal 
execution  can  be  overlooked.454  The  rule  of  law  controlling  this 


tic  Sav.  Bank  v.  Town  of  Douglas, 

5  111.  App.  579;   Houston  v.  People, 
55  111.  398.     An  official  required  by 
law  to  countersign  bonds  cannot  re- 
fuse to  do  so  because  of  matters  af- 
fecting, in  his  opinion,  the  legality 
of  the  steps  required  by  law  to  be 
taken    before   the    bonds    could    be 
properly  issued. 

Melvin  v.  Lisenby,  72  111.  63.  The 
omission  of  the  treasurer  to  counter- 
sign bonds  held  a  mere  defect  in 
their  execution. 

Town  of  Lexington  v.  Union  Nat. 
Bank,  75  Miss.  1,  22  So.  291.  Bonds 
recognized  as  valid  by  the  town  and 
the  legislature  were  signed  by  the 
mayor  and  attested  by  the  clerk  as 
required  by  the  enabling  act,  but 
the  coupons  though  signed  by  the 
mayor  were  not  attested  by  the 
clerk.  The  court  held  that  this  fact 
did  not  render  them  invalid. 

Bank  of  Statesville  v.  Town  of 
Statesville,  84  N.  C.  169.  A  stat- 
ute provided  that  bonds  should  be 
signed  by  the  town  magistrate,  treas- 
urer and  commissioner.  It  was  held 
that  the  requirement  was  directory 
and  the  omission  of  the  commission- 
er to  sign  did  not  invalidate  them. 

Coler  v.  Santa  Fe  County  Com'rs, 

6  N.    M.   88,    27    Pac.    619.     Where 
legislative    act    provides    that    "the 
powers  of  a  county  as  a  body  poli- 
tic and  corporate  shall  be  exercised 
by  a   board  of   county   commission- 
ers" the  fact  that  bonds  were  signed 
by    the   county    commissioners    and 
the  probate  judge  of  the  county  was 
not  sufficient  notice  of  irregularity 


in  their  issue  to  put  a  purchaser 
on  inquiry,  as  the  act  of  the  com- 
missioners was  the  act  of  the  county 
in  its  corporate  capacity,  and  the 
signature  of  the  probate  judge  was 
a  mere  surplusage. 

Yesler  v.  City  of  Seattle,  1  Wash. 
St.  308.  An  act  requiring  bonds 
to  be  signed  by  the  mayor  is  suffi- 
ciently complied  with  if  signed  by 
the  person  occupying  the  office  at 
date  of  negotiation  and  delivery 
though  he  was  elected  after  the  day 
of  their  date. 

When  the  legislative  act  is  silent 
in  regard  to  officials  who  shall  exe- 
cute bonds,  it  should  be  done  by  the 
usual  municipal  officers.  Walnut 
Tp.  v.  Wade,  103  U.  S.  683;  Kanka- 
kee  County  v.  Aetna  Life  Ins.  Co., 
106  U.  S.  668;  Middleton  v.  Mul- 
lica  Tp.,  112  U.  S.  433;  Town  of 
Windsor  v.  Hallett,  97  111.  204;  Lane 
v.  Inhabitants  of  Embden,  72  Me. 
354. 

«4  Bissell  v.  Spring  Valley  Tp., 
110  U.  S.  162.  Bonds  requiring  the 
signature  of  the  countv  clerk  are 
incomplete  and  insufficiently  exe- 
cuted without  it. 

Coler  v.  City  of  Cleburne,  131  U. 
S.  162.  Even  bona  fide  holders  of 
municipal  bonds  must  take  the  risk 
of  the  official  character  of  those  who 
execute  them.  A  statute  provided 
that  bonds  should  be  signed  by  the 
mayor.  Mr.  Justice  Blatchford  said: 
"This  clearly  means  that  they  shall 
be  signed  by  the  person  who  is  may- 
or of  the  city  when  they  are  signed, 
and  not  by  any  other  person.  The 


§  197 


ISSUANCE    OF   SECURITIES. 


449 


subject,  however,  is  not  the  strict  and  technical  one,  but  that 
which  requires  a  substantial  compliance  with  ordinary  rules  af- 
fecting the  making  of  negotiable  instruments  by  corporate  offi- 
cials,455 and  the  acts  of  de  facto  officers  as  to  third  persons  are 
binding  upon  the  public  corporation.466  It  must  also  be  remem- 


'egislature  having  declared  who 
shall  sign  them,  it  was  not  open  to 
the  city  council  to  provide  that  tney 
should  be  signed  by  some  other  per- 
son." 

Lehman  v.  City  of  San  Diego,  83 
Fed.  669;  State  v.  Babcock,  19  Neb. 
223.  The  provision  of  the  Nebraska 
Constitution  requiring  the  certifi- 
cate of  the  state  auditor  and  secre- 
tary on  municipal  internal  improve- 
ment bonds  is  regarded  as  impera- 
tive and  cannot  be  disregarded. 
Peck  v.  City  of  Hempstead,  27  Tex. 
Civ.  App.  80,  65  S.  W.  653. 

In  the  signing  of  coupons  it  is  not 
signed  in  the  most  informal  or  me- 
chanical way.  Lithographed  signa- 
ities  required  in  the  execution  of 
bonds  should  be  followed.  The 
names  of  the  proper  officials  may  be 
necessary  that  even  the  same  formal- 
tures  will  be  good.  See  Phelps  v. 
Town  of  Lewiston,  15  Blatchf.  131, 
Fed.  Gas.  No.  11,076;  Blair  v.  Cum- 
ing  County,  111  U.  S.  363;  Penning- 
ton  v.  Baehr,  48  Cal.  565;  Town  of 
Lexington  v.  Union  Nat.  Bank,  75 
Miss.  1;  Davis  v.  Shields,  26  Wend. 
(N.  Y.)  341. 

455  Curtis  v.  County  of  Butler,  24 
How.  (U.  S.)  435.  The  county  com- 
missioners consisted  of  a  board  of 
three;  two  of  whom  were  author- 
ized to  transact  business;  bonds 
signed  by  two  out  of  three  held 
binding  upon  the  county. 

German  Ins.  Co.  v.  City  of  Man- 
ning, 78  Fed.  900.  A  municipality 
is  estopped  to  deny  the  authority  of 


city  officials  who  have  in  fact  signed" 
municipal  bonds. 

First  Nat.  Bank  of  North  Benning- 
ton  v.  Town  of  Arlington,  16  Blatchf. 
57,  Fed.  Cas.  No.  4,806;  Clarke  v. 
Hancock  County  Sup'rs,  27  111.  305; 
Lane  v.  Inhabitants  of  Embden,  72 
Me.  354.  In  construing  town  records 
evidentiary  of  the  action  of  the 
town,  the  words  used  are  to  receive 
their  ordinary  and  popular  significa- 
tion, rather  than  their  technical 
meaning. 

Thompson  v.  Village  of  Mecosta, 
127  Mich.  522,  86  N.  W.  1044;  Peo- 
ple v.  White,  54  Barb.  (N.  Y.)  622. 
Officers  may  be  compelled  by  man- 
damus to  execute  bonds  duly  au- 
thorized. People  v.  Mead,  24  N.  Y. 
114;  Alexander  v.  McDowell  County 
Com'rs,  70  N.  C.  208;  Bank  of  States- 
ville  v.  Town  of  Statesville,  84  N. 
C.  169 ;  Edward  C.  Jones  Co.  v.  Town 
of  Guttenberg,  66  N.  J.  Law,  659, 
51  Atl.  274;  Carriger  v.  Town  of 
Morristown,  69  Tenn.  (1  Lea)  243; 
State  v.  Common  Council  of  Madi- 
son, 7  Wis.  688.  Where  the  common 
council  had  passed  a  valid  ordinance 
for  the  issuing  of  city  bonds,  filing 
and  dating  them  are  ministerial  acts 
and  a  mistake  in  the  date  does  not 
render  them  invalid. 

*»6  Anthony  v.  Jasper  County,  101 
U.  S.  693;  Rails  County  v.  Douglass, 
105  U.  S.  728.  County  bonds  issued 
by  de  facto  county  officials  cannot 
be  impeached  by  showing  that  the 
officers  signing  were  not  such  de 
jure. 


Abb.  Corp.— 29. 


450 


POWERS. 


§   197 


bered  that  the  authority  of  an  official  of  a  public  corporation  is 
special  and  limited,  differing  in  this  respect  in  its  legal  character 
from  a  like  official  of  a  private  corporation.457 

The  failure  to  fix  the  official  seal  of  the  public  corporation  to 
the  bonds  does  not  necessarily  invalidate  them,457*  neither  does  the 


Waite  v.  City  of  Santa  Cruz,  89 
Fed.  619.  Bonds  signed  by  de  facto 
municipal  officers  are  as  binding  as 
though  they  had  been  officers  de 
jure.  See,  also,  Waite  v.  City  of 
Santa  Cruz,  184  U.  S.  302,  revers- 
ing 98  Fed.  387. 

The  same  principle  applies  to  de 
facto  councils  or  other  legislative 
bodies  of  municipal  corporations. 
National  Life  Ins.  Co.  v.  Board  of 
Education  of  Huron,  62  Fed.  778; 
Coler  v.  Dwight  School  Tp.,  3  N. 
D.  249,  55  N.  W.  587,  28  L.  R.  A. 
649.  But  there  can  be  no  officer  de 
facto  where  no  legal  office  exists. 

Norton  v.  Shelby  County,  118  U. 
S.  426;  Gage  v.  McCord  (Ariz.)  51 
Pac.  977.  Bonds  properly  executed 
by  an  official  during  his  term  of 
office  may  be  sold  by  his  successor. 
Town  of  Decorah  v.  Bullis,  25  Iowa, 
12. 

«7  The  Floyd  Acceptances,  74  U. 
S.  (7  Wall.)  666;  Marsh  v.  Fulton 
County,  77  U.  S.  (10  Wall.)  676; 
Peirce  v.  United  States,  1  Ct.  Cl. 
270.  The  secretary  of  war  has  no 
general  or  unlimited  power  to  bind 
the  government  by  indorsing  or  ac- 
cepting commercial  paper.  In  An- 
thony v.  Jasper  County,  101  U.  S. 
693,  Chief  Justice  Waite  said:  "The 
public  can  act  only  through  its  au- 
thorized agents  and  it  is  not  bound 
until  all  who  are  to  participate  in 
what  is  to  be  done  have  performed 
their  respective  duties.  The  author- 
ity of  a  public  agent  depends  on  the 
law  as  it  is  when  he  acts.  He  has 
only  such  powers  as  are  specifically 


granted.  *  *  *  Purchasers  of 
municipal  securities  must  always 
take  the  risk  of  the  genuineness  of 
the  official  signatures  of  those  who 
execute  the  paper  they  buy." 

City  of  Louisville  v.  Bank  of 
Louisville,  174  U.  S.  439,  19  Sup. 
Ct.  753.  In  Hull  v.  Marshall  Coun- 
ty, 12  Iowa,  142-149,  the  court  said: 
"A  county  judge  is  an  officer  of  lim- 
ited powers.  His  authority  is  de- 
fined by  statute,  which  every  one 
is  bound  to  know  and  comprehend. 
No  one  need  be  deceived  or  injured 
by  such  a  rule;  if  the  act  is  legal 
and  within  the  power  of  the  county 
judge,  it  is  easy  to  allege  and  show 
it." 

Smith  v.  Town  of  Epping,  69  N. 
H.  558,  45  Atl.  415;  McDonald  v. 
City  of  New  York,  68  N.  Y.  23-27. 
"It  is  fundamental  that  those  seek- 
ing to  deal  with  a  municipal  cor- 
poration through  its  officials  must 
take  great  care  to  learn  the  nature 
and  extent  of  their  power  and  au- 
thority." 

*57a  San  Antonio  v.  Mehaffy,  96  U. 
S.  312;  Draper  v.  Springport,  104  U. 
S.  501.  Mr.  Justice  Bradley  said: 
"The  technical  form  of  the  obliga- 
tion was  a  matter  of  form  rather 
than  that  of  substance.  The  issue 
of  the  bonds  xmder  seal,  as  contra- 
distinguished from  bonds  or  obliga- 
tions without  seal,  was  merely  a 
directory  requirement."  See,  also, 
Wiley  v.  Board  of  Education,  11 
Minn.  371  (Gil.  268) ;  Gould  v.  Town 
of  Venice,  29  Barb.  442;  People  v. 
Mead,  24  N.  Y.  114. 


§   197  ISSUANCE    OF    SECURITIES.  451 

failure  of  officials  whose  signatures  are  necessary  to  affix  their 
own  seals  where  required  by  law,  after  their  signature.458  The 
date  of  the  signing  and  sealing,  as  determined  by  inspection  of 
the  face  of  a  bond  is  conclusive,459  and  evidence  showing  or  tend- 
ing to  show  that  signatures  and  seals  were  affixed  on  a  date  sub- 
sequent to  that  required  by  law  or  that  which  is  shown  by  the 
face  of  the  bonds  is  inadmissible  to  establish  their  invalidity. 
The  use  of  engraved  or  lithographic  signatures  does  not  invali- 
date bonds  where  the  use  of  such  signatures  has  been  formally 
adopted  by  the  officials  signing.460  An  official  signature  written 
by  one  duly  authorized,  though  not  such  an  official,  will  be  held 
sufficient.461 

Sealing.  It  is  not  necessary,  unless  the  statute  expressly  re- 
quires it,  to  affix  the  corporate  seal,  and^this  is  particularly  true 
where  a  corporation  has  no  official  seal.462  The  authorities  are 

Bernards   v.    Stebbins,    109   U.   S.  dating  of  bonds  eight  days  held  not 
341.     So  held  of  a  seal  adopted  tern-  to  affect  their  validity.     Brown   v. 
porarily.      Solon   v.   Ulmsberg   Sav-  Bon  Homme  County,  1  S.  D.  216. 
ings  Bank,  35  Hun  (N.  Y.)  1;  Morton  <8°  McKee    v.    Vernon    County,    3 
v.  Carlin,  51  Neb.  202;   City  of  San  Dill.  210,  Fed.  Cas.  No.  8,851;   Pen- 
Antonio  v.  Gould,  24  Tex.  42.     Seal  nington  v.  Baehr,  48  Cal.  565;  Town 
necessary  to  validity.     Thornburgh  of  Lexington  v.  Union   Nat.   Bank, 
v.    City   of    Tyler    (Tex.)    43   S.    W.  75  Miss.  1,  22  So.  291. 
1054.     But  see  Avery  v.  Springport,  461  Montgomery  v.  St.  Mary's  Tp., 
14  Blatchf.  272,  holding  that  coupon  43  Fed.  362;  Chadbourne  v.  St.  Mary's 
bonds   not    sealed,    but   showing   by  Tp.,  43   Fed.  362;    Ring  v.   Johnson 
their  wording  that  sealing  was  in-  County,  6  Iowa,  265. 
tended,  are  void.  *62  City  of  San  Antonio  v.  Mehaffy, 

«8Armfield  v.  Town  of  Solon,  64  96  U.  S.  312.  Draper  v.  Town  of 
Hun,  633,  19  N.  Y.  Supp.  44.  Af-  Springport,  104  U.  S.  501,  where  Mr. 
fixing  of  wafers  by  a  stranger  op-  Justice  Bradley  said:  "The  technical 
posite  names  of  officers  signing  the  form  of  the  obligations  was  a  mat- 
bonds  held  not  to  invalidate  them,  ter  of  form  rather  than  of  substance. 
Town  of  Solon  v.  Williamsburgh  The  issue  of  bonds  under  seal,  as 
Sav.  Bank,  114  N.  Y.  122.  contradistinguished  from  bonds  or 

459  Town  of  Weyauwega  v.  Ayling,  obligations  without  seal,  was  mere- 

99    U.    S.    112;    Anthony    v.    Jasper  ly   a   directory    requirement."     Ber- 

County,    101    U.   S.   693;    Village   of  nards  Tp.  v.  Stebbins,  109  U.  S.  341. 

Kent  v.   Dana   (C.  C.  A.)    100   Fed.  So  held  of  a  seal  adopted  tempora- 

56;     Inhabitants     of     Stoughton    v.  rily.     Jefferson  County  v.  Lewis,  20 

Paul,   173  Mass.   148,  53  N.  E.  272;  Fla.    980;     Stockton    v.    Powell,    29 

School    Dist.    No.    42    v.    First    Nat.  Fla.    1,    15    L.    R.    A.    42;    Wiley   v. 

Bank  of  Xenia,  19   Neb.   89;    State  Board    of    Education    of    Minneapo- 

v.    Moore,    46   Neb.    590.     The   ante-  lis,  11  Minn.  371    (Gil.  268);  Gould 


452  POWERS.  §    198 

divided  upon  the  question  of  the  validity  of  bonds  issued  and  in 
the  hands  of  bona  fide  purchasers  without  a  corporate  seal  af- 
fixed where  the  statute  requires  this  to  be  done.463 

§  198.    Form. 

The  necessary  authority  for  an  issue  of  negotiable  bonds  by  a 
public  corporation  may  contain  provisions  prescribing  their  for- 
mal wording.  As  stated  in  the  preceding  section,  their  validity 
does  not,  except  in  a  slight  degree,  depend  upon  the  mere  me- 
chanical process  involved  in  their  making,  but  upon  the  authority 
derived  from  the  legislature  and  exercised  by  the  bond  issu- 
ing district.  Bonds  after  their  issue  pass,  as  a  rule,  immediate- 
ly into  the  hands  of  bona  fide  purchasers.  If  in  form  they  com- 
ply with  the  requirements  of  general  rules  of  law  fixing  the 
form  of  valid  instruments  of  such  a  character,  it  will  be  consid- 
ered sufficient.464  Where  statutory  authority  does  not  require  or 
prescribe  a  certain  form,  general  rules  of  law  will  apply  and 
bonds  that  may  be  defective  in  form  when  compared  with  others 
issued  by  the  same  corporation  of  a  prescribed  form  will  not  be 

v.  Town  of  Venice,  29  Barb.  (N.  Y.)  App.  439;  City  of  San  Antonio  v. 
442;  People  v.  Mead,  24  N.  Y.  114;  Gould,  34  Tex.  49. 
Town  of  Solon  v.  Williamsburgh  *64  Anthony  v.  Jasper  County,  101 
Sav.  Bank,  35  Hun  (N.  Y.)  1;  Mor-  U.  S.  693;  Atchison  Board  of  Edu- 
ton  v.  Carlin,  51  Neb.  202.  But  see  cation  v.  De  Kay,  148  U.  S.  591; 
Avery  v.  Town  of  Springport,  14  D'Esterre  v.  City  of  New  York  (C. 
Blatchf.  272,  Fed.  Cas.  No.  676,  as  C.  A.)  104  Fed.  605.  General  stat- 
holding  that  coupon  bonds  not  utory  provisions  fixing  the  form  of 
sealed,  but  by  their  wording  show-  bonds  are  superseded  by  a  special 
ing  that  sealing  was  intended,  were  act  prescribing  this, 
void.  Merced  County  v.  California  Uni- 
ces Phelps  T.  Town  of  Yates,  16  versity,  66  Cal.  25.  But  one  en- 
Blatchf.  192,  Fed.  Cas.  No.  11,082;  titled  to  receive  bonds  cannot  be 
Humboldt  Tp.  v.  Long,  92  U.  S.  642;  compelled  to  take  them  when  not 
Draper  v.  Town  of  Springport,  104  in  the  form  prescribed  by  statute, 
U.  S.  501;  Bernards  Tp.  v.  Stebbins,  even  though  valid.  Wilson  v.  City 
109  U.  S.  341;  Rondot  v.  Rogers  Tp.,  of  Shreveport,  29  La.  Ann.  673.  A 
99  Fed.  202;  Augusta  Bank  v.  City  negotiable  form  does  not  impart 
of  Augusta,  49  Me.  507;  Lane  v.  In-  validity  in  the  absence  of  power  to 
habitants  of  Embden,  72  Me.  354;  issue. 

Town    of    Solon    v.    Williamsburgh        Barrett  v.  County  Ct.  of  Schuyler, 

Sav.   Bank,   114   N.   Y.   122;    Thorn-  44   Mo.   197.      Bonds  not   containing 

burgh  v.  City  of  Tyler,  16  Tex.  Civ.  the  words  "value  received,  negotia- 


§  198 


ISSUANCE    OF    SECURITIES. 


453 


held  invalid  because  of  such  deficiencies.465  To  protect  bona  fide 
holders,  the  courts  are  inclined  to  extend  this  principle  further 
and  to  hold  that  bonds,  where  the  form  is  prescribed  by  the  leg- 
islative authority  for  their  issuance,  although  not  complying 
technically  with  the  form  as  thus  required  but  yet  which  in  their 
substantial  features  follow  the  law,  will  not  be  considered  invalid 
on  account  of  such  variation.468 


ble  and  payable  without  defalca- 
tion," as  required  by  the  statutes, 
considered  commercial  and  negotia- 
ble paper.  Catron  v.  Lafayette 
County,  106  Mo.  659. 

465  Wood  v.  Allegheny  County,  3 
Wall.  Jr.  267,  Fed.  Cas.  No.  17,937. 

"e  City  of  New  Orleans  v.  Clark, 
95  U.  S.  644.  The  ordinance  of  a 
city  authorizing  the  issue  of  bonds 
provided  the  company  should  "guar- 
antee the  said  bonds  and  assume 
the  payment  of  the  principal  there- 
of at  maturity,"  the  indorsement  on 
the  bonds  by  the  president  of  the 
company,  guaranteeing  "the  pay- 
ment of  the  principal  and  interest" 
was  held  a  sufficient  compliance. 

Calhoun  County  Sup'rs  v.  Gal- 
braith,  99  U.  S.  214.  Bonds  issued 
payable  to  the  railroad  company  or 
bearer  was  not  held  a  sufficient  vari- 
ance to  invalidate  them  where  the 
act  provided  that  they  should  be 
made  payable  to  the  president  or 
the  directors  of  the  company,  their 
successors  or  assigns.  In  Board  of 
Education  of  Atchison  v.  De  Kay, 
148  U.  S.  591,  the  validity  of  bonds 
issued  under  general  statute,  Kan- 
sas 1868,  held  not  to  be  affected 
where  in  reciting  the  title  of  that 
act  the  word  "organize"  is  substi- 
tuted for  the  word  "incorporate." 
D'Esterre  v.  City  of  Brooklyn,  90 
Fed.  586;  Roberts  &  Co.  v.  City  of 
Paducah,  95  Fed.  62;  Village  of 
Kent  v.  Dana  (C.  C.  A.)  100  Fed. 
56;  D'Esterre  v.  City  of  New  York, 


104  Fed.  605.  An  erroneous  cita- 
tion of  statutory  authority  is  imma- 
terial; statutory  provisions  serving 
no  purpose  in  safeguarding  a  mu- 
nicipality held  directory  only  and 
a  departure  therefrom  is  not  a  de- 
fect of  substance  which  renders 
bonds  invalid. 

Murphy  v.  City  of  San  Luis  Obispo 
(Cal.)  48  Pac.  974.  The  statutory 
authority  gave  power  to  issue  bonds 
payable  "in  gold  coin  or  lawful 
money  of  the  United  States."  The 
bonds  were  issued  payable  in  "gold 
coin  of  the  United  States."  Held  a 
sufficient  variance  to  invalidate 
them.  This  case  was  reversed,  how- 
ever, in  Murphy  v.  City  of  San  Luia 
Obispo,  119  Cal.  624,  51  Pac.  1086.. 
where  it  was  held  that  under  such 
conditions  the  trustees  of  the  city 
could,  at  their  option,  make  the 
bonds  payable  in  either  gold  coin  of 
the  United  States  or  lawful  money 
of  the  United  States. 

Hadley  v.  Dague,  130  Cal.  207,  62 
Pac.  500;  Woodward  v.  Reynolds, 
58  Conn.  486;  Middleton  v.  City  of 
St.  Augustine,  42  Fla.  287,  29  So. 
421.  Bonds  and  coupons  providing 
for  their  payment  at  a  place  differ- 
ent from  the  one  specified  in  legis- 
lative authority  is  a  material  vari- 
ance and  departure  from  such  au- 
thority. 

School  Dist.  No.  40  v.  Gushing,  8 
Kan.  App.  728,  54  Pac.  924;  Stato 
v.  School  Dist.  No.  3,  34  Kan.  237; 
Oswego  Tp.  v.  Anderson,  44  Kan. 


454 


POWERS. 


198 


Times  of  issue  and  maturity.  The  rule  of  law  that  a  substan- 
tial compliance  with  the  provisions  of  legal  authority  also  ap- 
plies to  the  dating  of  the  bond  and  the  term  of  its  maturity  so 
long  as  the  life  of  the  bond  comes  substantially  within  the  law 
merely  because  it  may  have  been  executed  at  a  different  time 
from  that  contemplated  by  legal  authority,  does  not  make  it  in- 
valid.467 


214;  Wiley  v.  Board  of  Education 
of  Minneapolis,  11  Minn.  371  (Gil. 
268);  Town  of  Lexington  v.  Union 
J^&t.  Bank,  75  Miss.  1,  22  So.  291. 
Refunding  bonds  issued  in  differ- 
ent denominations  from  the  old  in- 
debtedness not  invalid. 

Bogart  v.  Lamotte  Tp.,  79  Mich. 
294;  State  v.  Roggen,  22  Neb.  118, 
34  N.  W.  108.  The  absence  of  a  re- 
quired certificate  by  certain  officials 
invalidates  bonds.  Starin  v.  Town 
of  Genoa,  23  N.  Y.  439;  Allen  v.  City 
of  Davenport,  107  Iowa,  90,  77  N. 
W.  532.  Misrecital  of  authority 
held  immaterial. 

Barker  v.  Town  of  Oswegatchie, 
10  N.  Y.  Supp.  834;  Oswego  City 
Sav.  Bank  v.  Board  of  Education 
of  Union  Free  School,  70  App.  Div. 
538,  75  N.  Y.  Supp.  417.  Where 
printed  bonds  are  issued  to  replace 
original  typewritten  ones  surren- 
dered at  the  time  of  such  substitu- 
tion, the  corporation  is  liable  on  the 
substituted  bonds.  State  v.  Village 
of  Perrysburg,  14  Ohio  St.  472.  Bonds 
issued  in  the  name  of  "The  town  of 
Perrysburg"  instead  of  "the  incor- 
porated village  of  Perrysburg"  held 
valid. 

State  v.  Anderson  County,  67  Tenn. 
(8  Baxt.)  249;  Shelby  County  v. 
Jarnagin  (Tenn.)  16  S.  W.  1040; 
Brownson  v.  Smith,  93  Tex.  614. 
School  district  bonds  not  required 
to  be  certified  by  the  Atty.  General 
under  Rev.  St.  art.  918d.  City  of 


Memphis  v.  Memphis  Sav.  Bank,  99 
Tenn.  104. 

467  Gilchrist  v.  City  of  Little  Rock, 
1  Dill.  261,  Fed.  Gas.  No.  5,421. 
Bonds  made  payable  at  an  earlier 
date  than  directed  by  the  city  or- 
dinance relating  to  the  mode  of  ex- 
ecuting them  are  not  void  in  the 
hands  of  bona  fide  purchasers.  City 
of  South  St.  Paul  v.  Lamprecht 
Bros.  Co.  (C.  C.  A.)  88  Fed.  449; 
Syracuse  Tp.  v.  Rollins,  104  Fed. 
958;  Prettyman  v.  Tazewell  County 
Sup'rs,  19  111.  406;  Woodruff  v. 
Town  of  Okolona,  57  Miss.  806.  A 
bond  payable  at  a  longer  period 
from  the  date  of  issuance  than  au- 
thorized by  law  is  void  although 
containing  a  recital  that  it  is  is- 
sued in  pursuance  of  law. 

McMullen  v.  Ingham  Circuit  Judge, 
102  Mich.  608,  61  N.  W.  260.  When 
statute  provides  that  payment  of 
loans  obtained  by  boards  of  county 
supervisors  "shall  in  all  cases  be 
made  within  fifteen  years  from  date 
of  such  loan,"  an  issue  of  county 
bonds  is  limited  to  fifteen  years. 
Syracuse  Sav.  Back  v.  Town  of 
Seneca  Falls,  21  Hun  (N.  Y.)  304; 
Brownell  v.  Town  of  Greenwich,  114 
N.  Y.  518,  4  L.  R.  A.  685.  Holder 
not  bound  to  examine  entire  issue 
to  see  that  no  more  bonds  come 
due  in  a  single  year  than  the  stat- 
ute permits. 

Hoag  v.  Town  of  Greenwich,  133 
N.  Y.  152.  Where  municipal  bonds 


199 


ISSUANCE    OF    SECURITIES. 


455 


Rate  of  interest.  The  rate  of  interest,  however,  as  authorized, 
it  is  held,  is  not  a  directory  provision,  but  mandatory,  and  a  bond 
issued  bearing  interest  at  a  different  rate  from  that  authorized, 
may  be  held  invalid  even  in  the  hands  of  a  bona  fide  holder  or  at 
least  to  the  extent  of  such  excess  of  interest  rate.468 

§  199.    Recitals  of  authority. 

The  recitals  in  a  bond  as  to  statutory  authority  need  not  re- 
peat the  precise  phraseology  employed  in  such  authority ;  the 


are  void  because  payable  at  a  dif- 
ferent time  than  that  authorized  by 
law,  but  the  bonds  were  issued  and 
purchased  in  good  faith  and  the 
municipality  had  a  legal  right  to 
issue  such  bonds,  except  as  to  time 
of  payment,  the  law  will  imply  a 
promise  by  the  municipality  to  re- 
pay to  the  purchaser  the  amount 
paid  for  such  bonds  at  the  time  and 
according  to  the  terms  which  should 
have  been  inserted  in  the  bonds. 

Morrill  v.  Smith  County  (Tex. 
Civ.  App.)  33  S.  W.  899;  First  Nat. 
Bank  of  St.  Johnsbury  v.  Town  of 
Concord,  50  Vt.  257.  The  selectmen 
and  treasurer  whose  duty  it  was  to 
issue  the  bonds  were  the  ones  to 
decide  when  to  perform  that  duty, 
and  defendant  knowing  that  they 
were  being  issued  but  taking  no 
steps  to  prevent  it  could  not  there- 
after raise  the  objection  that  the 
bonds  were  prematurely  issued, 
against  a  bona  fide  holder. 

Yesler  v.  City  of  Seattle,  1  Wash. 
St.  308;  State  v.  Common  Council 
of  Madison,  7  Wis.  688.  Where  the 
common  council  has  passed  a  valid 
ordinance  for  the  issuing  of  city 
bonds,  filling  up  and  dating  them 
is  a  ministerial  act  and  a  mistake 
in  the  date  does  not  render  them 
invalid. 

468  Lewis  v.  Clarendon,  5  Dill.  329, 


Fed.  Gas.  No.  8,320.  A  city  was  au- 
thorized to  issue  bonds  "bearing  in- 
terest at  the  rate  of  6%  per  annum"; 
they  were  issued  bearing  interest 
at  the  rate  of  10% — held  valid  to 
the  extent  of  6%  and  principal.  E. 
M.  Derby  &  Co.  v.  City  of  Modesto, 
104  Cal.  515.  Where  statutory  limit- 
as  to  rate  of  interest  is  not  exceed- 
ed, the  bonds  are  not  invalid  because 
they  provide  for  semi-annual  pay- 
ment of  interest. 

City  of  Quincy  v.  Warfield,  25  111. 
317.  Bonds  authorized  to  bear  in- 
terest at  the  rate  of  8%  when  issued 
at  the  rate  of  12%  will  be  valid  to 
the  extent  of  8%  only.  Sherlock 
v.  Village  of  Winnetka,  68  111.  530. 
Bonds  sold  disregarding  statutory 
authority  as  to  rate  of  interest,  held 
valid  but  the  authorities  considered 
personally  liable.  Beattie  v.  An- 
drew County,  56  Mo.  42.  Where  no 
rate  is  specified  in  the  authority,  any 
rate  not  prohibited  by  law  may  be 
fixed.  Parkinson  v.  City  of  Parker, 
85  Pa.  313.  A  bofld  calling  for  in- 
terest in  excess  of  the  legal  rate, 
void  only  as  to  such  excess. 

Nelson  v.  Haywood  County,  87 
Tenn.  781,  11  S.  W.  885,  4  L.  R.  A. 
648.  The  fact  that  the  act  author- 
ized the  bonds  to  be  issued  bearing 
interest  at  the  legal  rate  where  they 
were  payable  in  another  state  where 


456 


POWERS. 


200 


substance  is  the  desired  end ;  the  intent  or  meaning  of  the  statute 
is  to  be  followed — not  its  technicalities  unless  mandatory  in  their 
character.469  Bonds  containing  provisions  or  requirements  void 
under  the  laws  of  the  state  do  not  become  invalidated  by  reason 
of  such  provisions  if  otherwise  legal.470 

§  200.    The  ratification  of  void  securities. 

In  a  preceding  section,471  the  question  of  ratification  of  a  void 
issue  of  negotiable  bonds  has  been  considered  to  a  certain  extent. 
In  this  section  additional  authorities  and  principles  are  given 
bearing  upon  the  subject.  The  general  rule  of  law  applying  to 
the  ratification  of  an  issue  of  bonds  void  for  the  want  of  author- 
ity, seems  to  be  that  to  the  extent  the  legislature  could,  con- 
stitutionally, authorize  the  bonds  of  public  corporations,  bonds 
issued  without  sufficient  statutory  authority  may  be  cured  or 
ratified  by  subsequent  legislation  and  this  ratification  by  the 
legislature,  it  has  been  held,  is,  in  all  respects,  equal  to  original 
authority  and  cures  all  defects  in  power  to  issue  and  all  irregu- 
larities in  the  execution  of  the  bonds.472  A  ratification  also, 


the  legal  rate  Is  greater  than  in 
the  state  where  they  were  issued 
does  not  render  them  invalid. 

469  Johnson  County  Com'rs  v.  Jan- 
uary, 94  IT.  S.  202.     The  fact  that 
the  act  under  which  the  bonds  were 
issued  was  erroneously  referred  to 
in    their    recitals    does    not    render 
them  void.    Atchison  Board  of  Edu- 
cation  v.   De  Kay,   148   U.    S.    591. 
The  use  of  the  word  "organize"  does 
not  affect  the  validity  of  the  bonds 
where    the    authority    required    the 
•word    "incorporate."     D'Esterre    v. 
City  of  New  York,  104  Fed.  605. 

470  Town  of  Enfleld  v.  Jordan,  119 
U.  S.  680. 

«i  See  §  171. 

472  Bissell  v.  City  of  Jefferson- 
ville,  24  How.  (U.  S.)  287.  "Mis- 
takes and  irregularities  in  the  pro- 
ceedings of  municipal  corporations 
are  of  frequent  occurrence  and  the 
state  legislatures  have  often  had 


occasion  to  pass  laws  to  obviate 
such  difficulties.  Such  laws  when 
they  do  not  impair  any  contract  or 
injuriously  affect  the  rights  of  third 
persons  are  generally  regarded  as 
unobjectionable  and  certainly  are 
within  the  competency  of  the  legis- 
lative authority." 

Campbell  v.  City  of  Kenosha,  72 
U.  S.  (5  Wall.)  194;  Beloit  v.  Mor- 
gan, 74  U.  S.  (7  Wall.)  619;  St. 
Joseph  Tp.  v.  Rogers,  83  U.  S.  (16 
Wall.)  664;  Jasper  County  v.  Bal- 
lou,  103  U.  S.  745;  Town  of  Thomp- 
son v.  Perrine,  103  U.  S.  806;  Read 
v.  City  of  Plattsmouth,  107  U.  S. 
568;  Otoe  County  v.  Baldwin,  111 
U.  S.  1;  Bolles  v.  Town  of  Brim- 
field,  120  U.  S.  759;  Cooper  v.  Town 
of  Thompson,  13  Blatchf.  434,  Fed. 
Gas.  No.  3,202;  Dows  v.  Town  of 
Elmwood,  34  Fed.  114;  Deyo  v.  Otoe 
County,  37  Fed.  246;  City  of  Co- 
lumbus v.  Dennison  (C.  C.  A.)  69 


200 


ISSUANCE    OF    SECURITIES. 


457 


it  has  been  held,  relates  back  to  the  time  of  issuance  of  the  bonds. 
It  may  apply,  as  already  suggested,  to  informalities  or  defects 
in  the  execution  or  delivery,473  or  to  defects  and  deficiencies  in 


Fed.  58;  Lehman  v.  City  of  San 
Diego  (C.  C.  A.)  83  Fed.  669,  af- 
firming 73  Fed.  105;  but  to  render 
bonds  valid,  they  must  be  issued 
according  to  the  manner  provided 
by  the  original  authority  as  rati- 
fied. 

Yavapai  County  v.  McCord  (Ariz.) 
59  Pac.  99.  The  act  of  1896  having 
validated  railroad  aid  bonds  there- 
tofore issued,  no  original  invalidity 
in  such  bonds  or  the  enactment  un- 
der which  they  were  issued,  is  avail- 
able to  prevent  their  being  refund- 
ed. Town  of  Duanesburgh  v.  Jenk- 
ins, 57  N.  Y.  177. 

In  Coleman  v.  Broad  River  Tp., 
50  S.  C.  321,  the  court  said:  "That 
act  could  only  legalize  and  validate 
the  contracts  or  obligations  that 
were  legal;  and  no  contract  could 
be  legal  that  was  not  constitutional, 
no  act  of  the  old  company  could  be 
legal  or  valid  which  in  its  incipi- 
ency  and  at  its  completion  was  clear- 
ly unconstitutional  and  void;  there- 
fore, this  act  to  declare,  if  that  had 
been  its  purpose,  that  such  bonds 
issued  in  pursuance  of  it  was  legal 
and  valid,  would  be  beyond  the  scope 
of  the  legislature  itself." 

Shell  v.  Carter  County  (Tenn.  Ch. 
App.)  42  S.  W.  78.  An  order  of  a 
county  court  authorizing  the  pay- 
ment of  coupons  was  not  considered 
here  a  ratification  of  the  bonds  from 
which  the  coupons  were  detached. 
Cumberland  County  Sup'rs  v.  Ran- 
dolph, 89  Va.  614;  Knapp  v.  Grant, 
27  Wis.  147.  The  fact  that  a  city 
council  was  proceeding  to  levy  and 
assess  a  tax  to  pay  bonds,  and  re- 
sisted plaintiff's  application  for  an 
injunction  to  restrain  such  tax,  was 


held  sufficient  evidence  of  a  ratifica- 
tion by  the  city  of  the  issue  of  the 
bonds. 

Stated  negatively,  the  rule  is  that 
the  legislature  cannot,  "by  retro- 
spective act  exercise  greater  power 
than  they  could  prospectively."  See 
the  following  cases:  Elmwood  Tp. 
v.  Marcy,  92  U.  S.  289;  Katzenberger 
v.  City  of  Aberdeen,  121  U.  S.  172; 
Quaker  City  Nat.  Bank  v.  Nolan 
County,  59  Fed.  660;  Marshall  v. 
Silliman,  61  111.  218;  Cairo  &  St.  L. 
R.  Co.  v.  City  of  Sparta,  77  111.  505; 
Barnes  v.  Town  of  Lacon,  84  111. 
461;  Gaddis  v.  Richland  County,  92 
111.  119;  Choisser  v.  People,  140  111. 
21. 

Shawnee  County  Com'rs  v.  Carter, 
2  Kan.  115.  "The  act  differs  from 
those  retrospective  laws  which  are 
frequently  passed  supplying  defects 
and  curing  informalities  in  the  pro- 
ceedings of  officers  and  tribunals 
acting  within  the  scope  of  their 
authority.  The  County  commission- 
ers were  not  acting  within  the  scope 
of  their  authority  in  issuing  these 
bonds.  They  did  not  conform  to 
the  law  only  in  an  irregular  way 
but  they  broke  down  the  barriers 
which  the  law  had  raised  in  a  very 
regular  way,  and  their  acts  in  the 
premises  were  void  not  for  want 
of  any  formality  or  regularity  or 
mistake  as  to  time  or  otherwise 
but  for  want  of  power  under  the 
law."  Sykes  v.  Town  of  Colum- 
bus, 55  Miss.  115;  Hasbrouck  v. 
City  of  Milwaukee,  13  Wis.  37. 

*"3  Town  of  Duanesburgh  v.  Jenk- 
ins, 57  N.  Y.  177,  191.  The  court 
say:  "How  the  consent  of  a  town 
shall  be  given  is  clearly  in  the  dis- 


458 


POWERS. 


200 


the  legal  authority  to  issue,474  whether  such  defect  of  power 
arises  from  the  fact  that  there  was  no  legally  incorporated  organ 
ization  capable  of  issuing  bonds,475  or  granting  the  existence  of 


cretion  of  the  legislature.  It  has 
often  given  it  to  the  majority  in 
number  and  amount  of  taxpayers; 
it  may  give  it  to  the  supervisor,  or 
any  other  officer,  since  the  whole 
power  is  of  its  creation,  and  since 
the  consent  of  all  the  taxpayers  or 
inhabitants  but  one  is  powerless  to 
bind  the  single  dissentient,  except 
upon  the  theory  of  the  complete  and 
plenary  power  of  the  legislature  in 
the  premises.  In  this  case  a  com- 
missioner has  been  regularly  ap- 
pointed under  the  statute,  by  whom 
bonds  were  to  be  issued  and  stock 
subscribed  for,  provided  certain 
consents  were  obtained  and  proofs 
filed  according  to  the  requirements 
of  the  several  acts  upon  the  subject. 
Consents  were  obtained  and  proofs 
were  made  and  filed  which  are  now, 
on  the  one  side,  claimed  to  be,  and 
on  the  other  are  denied  to  be,  in 
conformity  to  the  law.  The  com- 
missioner, meanwhile,  executed  the 
bonds,  subscribed  for  stock  and  de- 
livered the  bonds  to  the  company 
in  payment  of  the  subscription; 
complying  with  the  requirements  of 
the  statute  in  all  respects,  if  the 
requisite  consents  had  been  given 
and  proofs  made.  The  only  officer 
of  the  town  who  had  any  duty  in 
the  premises,  acted  by  giving  the 
bonds,  and  the  legislature,  seeing 
the  whole  matter,  released  the  con- 
ditions which  it  had  imposed,  and 
declared  his  assent  binding  upon 
the  town,  if  the  bonds  had  been  is- 
sued and  the  road  had  been  built, 
and  the  bonds  in  that  case  obliga- 
tory. As  it  might  have  authorized 
action  in  this  way  and  on  these  con- 


ditions, by  the  town,  originally,  I 
seen  no  objections  to  giving  effect  to 
its  ratification  of  the  action  of  the 
town  and  holding  its  consent,  thus 
expressed,  effectual." 

*T4  steele  County  v.  Erskine  (C. 
C.  A.)  98  Fed.  215,  affirming  judg- 
ment in  Erskine  v.  Steele  County, 
87  Fed.  630;  Campbell  v.  City  of 
Indianapolis,  155  Ind.  186;  Nolan 
County  v.  State,  83  Tex.  182,  17  S. 
W.  823;  Knapp  v.  Grant,  27  Wis.  147. 

*-5Beloit  v.  Morgan,  74  U.  S.  (7 
Wall.)  619;  Comanche  County  v. 
Lewis,  133  U.  S.  198;  Harper  Coun- 
ty Com'rs  v.  Rose,  140  U.  S.  71; 
Ashley  v.  Presque  Isle  County  Sup'rr; 
60  Fed.  55;  Cornell  University  v. 
Village  of  Maumee,  68  Fed.  418. 
Bonds  duly  and  lawfully  issued  by 
a  municipal  corporation  cannot  be 
rendered  invalid  in  the  hands  of  a 
bona  fide  holder  by  the  fact  that 
such  corporation,  though  properly  a 
city,  has  issued  such  bonds  under  the 
name  of  a  village,  having  previously 
been  recognized  as  a  village  in  an 
act  of  the  legislature  changing  its 
name,  and  having  levied  and  col- 
lected taxes,  passed  ordinances  and 
otherwise  acted  as  such. 

New  York  Life  Ins.  Co.  v.  Cuya- 
hoga  County  Com'rs  (C.  C.  A.)  106 
Fed.  123;  School  Dist.  No.  25  v. 
State,  29  Kan.  57.  A  corporation 
de  facto  authorized  to  issue  bonds. 
Riley  v.  Garfield  Tp.,  54  Kan.  463. 
Although  the  original  organization 
of  Garfield  County  was  without  au- 
thority from  the  constitution  con- 
taining an  area  of  less  than  432 
square  miles  by  actual  survey,  yet 
as  the  statute  creating  the  county 


200 


ISSUANCE    OF    SECURITIES. 


459 


a  legal  corporation  that  such  corporation  did  not,  possess  the 
legal  power  to  issue  the  bonds  or  to  issue  them  for  the  precise 
purpose.476  Again  the  defect  of  power  may  arise  because  of  a 
total  lack  of  such  authority  or  because  of  an  issue  of  bonds  in 
excess  of  an  amount  authorized.  Curative  acts  which  ratify  or 
attempt  to  ratify  void  bonds  are  not  usually  held  constitu- 
tional because  in  violation  of  provisions  to  the  effect  that  special 
laws  shall  not  be  passed  where  a  general  law  can  be  made  ap- 
plicable, nor  are  such  acts  held  in  violation  of  constitutional  pro- 
visions prohibiting  the  legislature  from  passing  special  laws  con- 
ferring corporate  powers.477 

Neither  do  such  acts  violate  a  prohibition  in  the  constitution 
against  retroactive  lawTs.478  Where  irregularities  in  the  manner 
of  the  exercise  of  a  power  exist,  a  municipal  corporation  may, 
upon  a  full  knowledge  of  all  the  circumstances  in  the  case,  ratify 


did  not  show  that  its  area  was  less, 
and  was  not  void  upon  its  face,  the 
county  had  a  de  facto  organization. 
The  records  of  such  organization  ap- 
peared regular  and  valid,  state  offi- 
cials proclaimed  the  organization, 
and  its  validity  was  subsequently 
recognized  by  them  and  the  legisla- 
ture. All  of  the  bonds  issued  by 
Garfield  County  under  the  provi- 
sions of  the  statute  and  in  regular 
form  while  its  organization  as  a 
county  was  in  existence  are  valid 
obligations  in  the  hands  of  bona 
fide  purchasers. 

«6  utter  v.  Franklin,  172  U.  S. 
416;  Schneck  v.  City  of  Jefferson- 
ville,  152  Ind.  204,  52  N.  E.  212. 

477  In  Read  v.  City  of  Plattsmouth, 
107  U.  S.  568,  coupon  bonds  were 
issued  without  authority  of  law  and 
the  legislature  passed  an  act  legal- 
izing them.  This  was  held  not  to  be 
a  violation  of  that  provision  in  the 
constitution  which  provides  that 
"the  legislature  shall  pass  no  spe- 
cial act  conferring  corporate  pow- 
ers" as  the  act  merely  recognized 
the  existence  of  an  obligation  and 


provided  a  medium  for  enforcing 
payment  according  to  the  original 
intention  of  the  parties.  No  new  cor- 
porate powers  were  thereby  con- 
ferred. Springfield  Safe  Deposit  & 
Trust  Co.  v.  City  of  Attica  (C.  C. 
A.)  85  Fed.  387. 

478  in  the  case  of  City  of  New  Or- 
leans v.  Clark,  95  U.  S.  644,  Mr.  Jus- 
tice Field  said:  "A  law  requiring 
a  municipal  corporation  to  pay  a 
demand  which  is  without  legal  ob- 
ligation but  which  is  equitable  and 
just  in  itself,  being  founded  upon 
a  valuable  consideration  received  by 
the  corporation  is  not  a  retroactive 
law, — no  more  so  than  an  appro- 
priation act  providing  for  the  pay- 
ment of  a  pre-existing  claim.  The 
constitutional  inhibition  does  not 
apply  to  legislation  recognizing  or 
affirming  the  binding  obligation  of 
the  state,  or  of  any  of  its  subordi- 
nate agencies  with  respect  to  past 
transactions.  It  is  designed  to  pre- 
vent retrospective  legislation  in- 
juriously affecting  individuals  and 
thus  protect  vested  rights  from  in- 
vasion." 


460 


POWERS. 


§  201 


an  illegal  issue  of  bonds  by  the  payment  of  interest,479  their  de- 
livery or  other  act480  that  will  be  regarded  by  the  courts  as  tan- 
tamount to  a  ratification.  The  doctrine  of  ratification  will  only 
apply,  however,  in  cases  where  the  party  ratifying  possesses  the 
original  power  to  perform  the  act  ratified.  If  the  bonds  are  void 
because  of  want  of  authority,  the  doctrine  cannot  apply.481 

§  201.    Negotiable  bonds;  their  validity. 

The  presumption  of  law  at  all  times  exists  in  favor  of  the  valid- 
ity of  negotiable  bonds,  both  as  to  the  sufficiency  of  power  and 
the  existence  of  all  conditions  and  requirements  necessary  to  and 
attendant  upon  their  formal  execution  and  delivery.  This  pre- 
sumption throws  upon  the  party  attacking  their  validity,  the 
burden  of  proof  as  to  all  questions  raised.482  This  presumption 


479  Cass  County  v.  Gillett,  100  U. 
S.  585;  Inhabitants  of  Pompton  v. 
Cooper  Union,  101  U.  S.  196;  Irwin 
v.  Town  of  Ontario,  3  Fed.  49; 
Portsmouth  Sav.  Bank  v.  City  of 
Springfield,  4  Fed.  276;  First  Nat. 
Bank  of  Oswego  v.  Town  of  Wal- 
cott,  7  Fed.  892;  Denison  v.  City  of 
Columbus,  62  Fed.  775,  affirming  69 
Fed.  58;  Treadway  v.  Schnauber,  1 
Dak.  236;  Johnson  v.  County  of 
Stark,  24  111.  75;  Keithsburgh  v. 
Frick,  34  111.  405;  Jones  v.  Cullen. 
142  Ind.  335;  Leavenworth,  L.  &  G. 
R.  Co.  v.  Douglas  County  Com'rs, 
18  Kan.  170;  Town  of  Lexington  v. 
Union  Nat.  Bank,  75  Miss.  1,  22  So. 
291;  State  v.  Van  Home,  7  Ohio  St. 
327;  Kellogg  v.  Ely,  15  Ohio  St.  64. 

*8o  City  of  Hannibal  v.  Fauntle- 
roy,  105  U.  S.  408. 

48i  See  authorities  cited  under 
note  472  of  this  section.  Citizens' 
Sav.  &  Loan  Ass'n  v.  City  of  To- 
peka,  87  U.  S.  (20  Wall.)  655.  "We 
do  not  attach  any  importance  to 
the  fact  that  the  town  authorities 
paid  one  installment  of  interest  on 
these  bonds.  Such  a  payment  works 
no  estoppel.  If  the  legislature  was 


without  power  to  authorize  the  issue 
of  these  bonds  and  its  statute  at- 
tempting to  confer  such  authority 
is  void,  the  mere  payment  of  inter- 
est which  was  equally  unauthorized 
cannot  create  of  itself  a  power  to 
levy  taxes  resting  on  no  other  found- 
ation than  the  fact  that  they  have 
once  been  illegally  levied  for  that 
purpose."  Commercial  Nat.  Bank 
v.  lola  City,  22  L.  Ed.  463;  City  of 
Parkersburg  v.  Brown,  106  U.  S. 
487;  Daviess  County  v.  Dickinson, 
117  U.  S.  657;  Doon  Tp.  v.  Cum- 
mins, 142  U.  S.  366;  Thomas  v.  Town 
of  Lansing,  14  Fed.  618;  Cowdrey  v. 
City  of  Caneadea,  16  Fed.  532;  Steb- 
bins  v.  Perry  County,  167  111.  567; 
Falkenstein  Tp.  v.  Fetch,  2  Kan. 
App.  193;  Weismer  v.  Village  of 
Douglas,  4  Hun  (N.  Y.)  201;  Union 
Bank  v.  Oxford  Com'rs,  119  N.  C. 
214,  34  L.  R.  A.  487. 

*82  Meyer  v.  City  of  Muscatine, 
68  U.  S.  (1  Wall.)  384;  Murray  v. 
Lardner,  69  U.  S.  (2  Wall.)  110. 
Coupon  bonds,  of  the  ordinary  kind, 
payable  to  bearer,  pass  by  delivery 
and  a  purchaser  of  them,  in  good 
faith,  is  unaffected  by  want  of  title 


201 


ISSUANCE    OP    SECURITIES. 


461 


of  validity  applies  equally  to  the  extent  of  necessary  legal  au- 
thority, the  performance  of  all  necessary  acts  by  public  officials 


in  the  vendor.  The  burden  of  proof, 
on  a  question  of  such  faith,  lies  on 
the  party  who  assails  the  possession. 
Marshall  County  Sup'rs  v.  Schenck, 
72  U.  S.  (5  Wall.)  772;  City  of  Lex- 
ington v.  Butler,  81  U.  S.  (14  Wall.) 
282.  "Issued  by  authority  of  law, 
as  the  bonds  purport  to  have  been, 
and  being,  by  the  regular  indorse- 
ment thereof,  made  payable  to  bear- 
er, they  lawfully  circulated  from 
holder  to  holder  by  delivery,  and  the 
plaintiff  having  purchased  four  of 
the  number  in  market  overt,  be- 
came the  lawful  indorsee  and  hold- 
er of  the  same,  together  with  the 
coupons  annexed,  and  the  interest 
secured  by  the  coupons  being  un- 
paid he  instituted  the  present  suit 
to  recover  the  amount.  Evidently, 
the  prima  facie  presumption  in  such 
a  case  is  that  the  holder  acquired 
the  bonds  before  they  were  due, 
that  he  paid  a  valuable  considera- 
tion for  the  same,  and  that  he  took 
them  without  notice  of  any  defect 
which  would  render  the  instruments 
invalid."  County  of  Henry  v.  Nico- 
lay,  95  U.  S.  619;  City  of  San  An- 
tonio v.  Mehaffy,  96  U.  S.  312;  Cum- 
mins v.  District  Tp.  of  Boon,  42 
Fed.  644;  Keene  Five-Cent  Sav. 
Bank  v.  Lyons  County,  90  Fed.  523; 
Lake  County  Com'rs  v.  Keene  Five- 
Cent  Sav.  Bank  (C.  C.  A.)  108  Fed. 
505;  Washington  County  v.  Wil- 
liams (C.  C.  A.)  Ill  Fed.  801;  Fi- 
delity Trust  &  Guaranty  Co.  v.  Fowl- 
er Water  Co.,  113  Fed.  560;  Ger- 
man Sav.  &  Loan  Soc.  v.  Ramish, 
138  Cal.  120,  69  Pac.  89,  70  Pac. 
1067;  Lake  County  Com'rs  v.  Stand- 
ley,  24  Colo.  1,  49  Pac.  23;  Lake 
County  Com'rs  v.  Linn,  29  Colo. 
446,  68  Pac.  839;  Brand  v.  Town  of 


Lawrenceville,  104  Ga.  486,  30  S.  E. 
954. 

In  Choisser  v.  People,  140  111.  21, 
and  in  Sampson  v.  People,  140  111. 
466,  the  burden  of  proof,  it  is  held, 
is  upon  the  party  asserting  the  val- 
idity of  bonds;  see,  however,  Hutch- 
inson  v.  Self,  153  111.  542,  decided 
subsequently  holding  the  rule  given 
in  the  text. 

People  v.  Town  of  Harp,  67  111. 
62;  City  of  Aberdeen  v.  Sykes,  59 
Miss.  236;  Coler  v.  Santa  Fe  County 
Com'rs,  6  N.  M.  88,  27  Pac.  619. 

Neely  v.  Yorkville,  10  S.  C.  141. 
If  a  corporation  has  previously  ex- 
hausted its  power  by  issuing  other 
bonds  to  the  full  extent  of  its  pow- 
er, the  onus  of  showing  the  fact 
is  upon  the  corporation. 

Walker  v.  State,  12  S.  C.  200; 
City  of  Memphis  v.  Bethel  (Tenn. 
Ch.  App.)  17  S.  W.  191.  In  an  ac- 
tion upon  coupons  representing  the 
interest  on  certain  city  bonds,  the 
fact  that  relator  is  the  holder  there- 
of, and  that  they  were  payable  to 
bearer  is  sufficient  evidence  of  own- 
ership and  casts  the  burden  of  dis- 
proving ownership  upon  the  city. 

Galbraith  v.  City  of  Knbxville,  105 
Tenn.  453,  58  S.  W.  643;  Simonton, 
Mun.  Bonds,  §  163.  "But  the  de- 
fendant may  give  evidence  to  show 
that  the  bonds  were  fraudulently 
issued  or  that  the  conditions  pre- 
cedent were  not  performed  or  that 
they  had  been  lost  or  stolen  before 
plaintiff  received  them  and  if  de- 
fendant proves  such  defense,  the 
burden  is  then  shifted  on  the  plain- 
tiff to  prove  that  he  is  a  bona  fide 
holder."  Marion  County  Com'rs  v. 
Clark,  94  U.  S.  278;  Cromwell  v. 
County  of  Sac,  96  U.  S.  51;  Stew- 


462  POWERS.  §  202 

and  the  existence  of  all  the  conditions  necessary  to  warrant  the 
issue  of  valid  bonds.483 

§  202.    As  affected  by  adverse  decisions  of  a  state  court. 

The  Federal  authorities  have  adopted  without  dissent  the  rule 
that  where  a  public  corporation  under  authority  of  law  has  is- 
sued its  bonds,  negotiable  in  their  character  and  payable  to 
bearer  at  a  future  date,  and  which  under  the  judicial  decisions 
of  the  state  are  valid  at  the  time  of  issue,  that  their  validity 
before  maturity,  in  the  hands  of  bona  fide  purchasers,  cannot  be 
affected  by  subsequent  decisions  of  the  state  courts  holding  the 
law,  under  authority  of  which  the  bonds  were  issued,  unconstitu- 
tional or  void.484  Such  decisions  may  affect  the  validity  of  bonds 

art  v.  Town  of  Lansing,  104  U.  S.  law  under  which  they  were  author- 
505;  City  of  San  Antonio  v.  Lane,  ized  unconstitutional  and  the  bonds 
32  Tex.  405.  void.  The  opinion  of  the  U.  S.  su- 
^ss  City  of  Gladstone  v.  Throop  preme  court  was  delivered  by  Jus- 
(C.  C.  A.)  71  Fed.  341;  City  of  tice  Swayne  who  said  in  part:  "The 
South  St.  Paul  v.  Lamprecht  Bros,  late  case  in  Iowa  and  two  other 
Co.  (C.  C.  A.)  88  Fed.  449;  Union  cases  of  a  kindred  character  in  an- 
Bank  of  Richmond  v.  Oxford  Com'rs,  other  state  also  overruling  earlier 
90  Fed.  7;  Burlington  Sav.  Bank  adjudications  stand  out  as  far  as 
v.  City  of  Clinton,  106  Fed.  269.  Im-  we  are  advised  in  unenviable  soli- 
provement  bonds  not  invalid  because  tude  and  notoriety.  However  we 
the  method  provided  by  statute  for  may  regard  the  late  case  in  Iowa 
assessing  the  cost  of  improvements  affecting  the  future,  it  can  have  no 
against  the  abutting  property  is  effect  upon  the  past.  'The  sound 
illegal.  and  true  rule  is,  that  if  the  con- 
Lake  County  Com'rs  v.  Keene  tract  when  made  was  valid  by  the 
Five-Cent  "Sav.  Bank  (C.  C.  A.)  108  laws  of  the  state  as  then  expound- 
Fed.  505;  Floyd  County  Com'rs  v.  ed  by  all  departments  of  the  gov- 
Shorter,  50  Ga.  489;  Akin  v.  Ordi-  ernment  and  administered  in  its 
nary  of  Bartow  County,  54  Ga.  59;  courts  of  justice,  its  validity  and 
State  v.  Hordey  (Kan.)  18  Pac.  obligation  cannot  be  impaired  by 
942.  any  subsequent  action  of  legislation, 
*84  Gelpcke  v.  City  of  Dubuque,  68  or  decision  of  its  courts,  altering 
U.  S.  (1  Wall.)  175.  The  decision  the  construction  of  the  law.'  The 
of  the  supreme  court  of  Iowa  in  the  same  principle  applies  where  there 
case  of  State  v.  County  of  Wapello,  is  a  change  of  judicial  decision  as 
13  Iowa,  390,  overruled  by  a  unan-  to  the  constitutional  power  of  the 
imous  opinion,  former  decisions  o£  legislature  to  enact  the  law.  To  this 
that  court  sustaining  the  validity  rule,  thus  enlarged,  we  adhere.  It 
of  certain  bonds  and  holding  the  is  the  law  of  this  court.  *  *  * 


202 


ISSUANCE    OF    SECURITIES. 


463 


not  issued,  but  all  persons  into  whose  hands  bonds  already  issued 
may  come  have  the  right  to  consider  the  constitutionality  of  such 
authority  conclusively  established.486  The  validity  of  coupon 
bonds  in  the  hands  of  innocent  holders,  it  has  even  been  held, 
will  not  be  affected  by  the  pendency  of  suits  brought  to  test  the 
question  of  their  legality  where  the  bonds  were  purchased  dur- 
ing the  pendency  of  such  suit.486  If,  however,  the  holders  of 
such  bonds  are  made  parties  to  such  litigation  or  as  a  few  cases 


To  hold  otherwise  would  be  as  un- 
just as  to  hold  that  rights  acquired 
under  a  statute  may  be  lost  by 
its  repeal." 

Lee  County  v.  Rogers,  74  U.  S. 
(7  Wall.)  181;  City  of  New  York 
v.  Lamson,  76  U.  S.  (9  Wall.)  477; 
Callaway  County  v.  Foster,  93  U. 
S.  567;  Douglass  v.  Pike  County, 
101  U.  S.  677;  Union  Bank  v.  Ox- 
ford Com'rs,  90  Fed.  7,  reversed  in 
(C.  C.  A.)  96  Fed.  293;  Durant  T. 
Iowa  County,  1  Woolw.  69,  Fed.  Cas. 
No.  4,189;  Smith  v.  Tallapoosa  Coun- 
ty, 2  Woods,  574,  Fed.  Cas.  No. 
13,113;  Columbia  County  Com'rs  v. 
King,  13  Fla.  451;  Steines  v.  Frank- 
lin County,  48  Mo.  167;  State  v. 
Saline  County  Ct,  48  Mo.  390; 
Bailey  v.  Town  of  Lansing,  13 
Blatchf.  424,  Fed.  Cas.  No.  738; 
Stallcup  v.  City  of  Tacoma,  13  Wash. 
141. 

*8s  Warren  County  v.  Marcy,  97 
U.  S.  96;  United  States  v.  Lee 
County  Sup'rs,  2  Biss.  77,  Fed.  Cas. 
No.  15,589.  Where  county  bonds 
had  been  sold  upon  the  faith  of  de- 
cisions of  the  supreme  court  of  the 
state  declaring  their  validity,  the 
fact  that  the  court  afterwards  re- 
versed its  decision  does  not  inval- 
idate those  previously  purchased  in 
good  faith  before  maturity. 

Smith  v.  Tallapoosa  County,  2 
Woods.  574,  Fed.  Cas.  No.  13,113; 


Waples  v.  City  of  Dubuque,  116 
Iowa,  167,  89  N.  W.  194. 

*86  Warren  County  v.  Marcy,  97 
U.  S.  96.  The  rule  that  all  persons 
are  bound  to  take  notice  of  a  suit 
pending  with  regard  to  the  title  to 
property  and  that  they  at  their  peril 
buy  the  same  from  any  of  the  liti- 
gating parties  does  not  apply  to  ne- 
gotiable securities  purchased  before 
maturity. 

Town  of  Orleans  v.  Platt,  99  U. 
S.  676;  Cass  County  v.  Gillett,  100 
U.  S.  585.  A  bona  fide  purchaser 
of  negotiable  securities  before  their 
maturity  is  not  affected  with  con- 
structive notice  of  a  suit  pending. 

Carroll  County  v.  Smith,  111  U. 
S.  556.  The  issuing  of  a  temporary 
injunction  which  was  afterwards 
made  permanent  by  a  state  court 
restraining  municipal  officers  from 
issuing  municipal  bonds  does  not 
estop  a  bona  fide  holder  who  was 
not  a  party  to  the  suit  from  main- 
taining title  to  such  bonds  issued 
after  the  temporary  injunction. 

Miller  v.  Ferris  Irr.  Dist,  99  Fed. 
143.  A  de  facto  corporation  may 
legally  do  and  perform  every  act 
which  it  could  do  were  it  a  de  jure 
corporation.  Its  acts  are  valid  as 
to  third  persons  except  where  chal- 
lenged by  the  state  in  direct  pro- 
ceedings; bonds  issued,  therefore, 
by  a  de  facto  corporation,  are  valid 
even  where  the  state  subsequently 


464  POWERS.  §  203 

hold  have  actual  knowledge  of  its  pendency,  this  rule  would  not 
apply.487  The  doctrine  stated  in  this  section  applies  to  the  validity 
of  negotiable  bonds,  not  only  under  the  conditions  already  named 
but  also  to  acts  ratifying  or  attempting  to  ratify  a  void  issue  of 
bonds  although  the  judicial  policy  of  the  state  may  be  against 
the  constitutionality  of  the  ratification  act,  yet  before  such  de- 
cision, if  bonds  ratified  by  a  legislature  have  passed  into  the 
hands  of  bona  fide  purchasers,  such  subsequent  decision  by  the 
courts  of  the  state  cannot  affect  their  validity. 

§  203.    Validity  of  issue  in  excess  of  legal  authority. 

A  public  corporation  may  possess  the  legal  authority  to  issue 
negotiable  bonds  to  and  including  a  certain  amount.  There  may 
be  constitutional  provisions  prohibiting  the  incurring  of  indebt- 
edness in  excess  of  this  amount,  or  the  special  authority  may  be 
limited  to  such  amount.  The  corporation  does,  however,  issue 
its  negotiable  bonds  in  excess  of  the  sum  thus  legally  authorized 
and  the  question  of  the  validity  of  such  excess  bonds  then  arises. 
There  are  found  two  lines  of  decisions,  the  one  holding  that  the 
bonds  issued  in  excess  of  the  amount  authorized  are  totally  void, 
even  in  the  hands  of  bona  fide  purchasers,488  the  other  holding 

In  a  direct  proceeding  attacking  the  edge  of  proceedings  when  he  becomes 

validity  of  the  organization  of  such  the  owner  and  holder,  he  is  conclud- 

corporation  secures  a  judgment  de-  ed  by  them. 

daring  it  void;  citing,  Shapleigh  v.  Diamond  v.  Lawrence  County,  37 

City  of  San  Angelo,  167  U.  S.  646;  Pa.    353.     The   purchaser   of   bonds 

Havemeyer   v.   Iowa  County,   70  U.  pendente    lite    and    all    subsequent 

B.  (3  Wall.)  294;  Ashley  v.  Presque  purchasers  are  affected  by  a  decree 

Isle    County   Sup'rs    (C.   C.    A.)    60  of  the  court   in   a  suit  pending  at 

Fed.  55;   Phelps  v.  Town  of  Lewis-  the    time    of    the    purchase;     such 

ton.  15  Blatchf.  131,  Fed.  Cas.   No.  bonds,  however,  not  having  the  qual- 

11,076.  ity  of  commercial  paper  in  Pennsyl- 

*"  Stewart  v.   Town   of   Lansing,  vania. 

104  U.  S.  505;  Durant  v.  Iowa  Conn-  *ss  Francis  v.  Howard  County,  50 

ty,  1  Woolw.  69,  Fed.  Cas.  No.  4,189.  Fed.    44.     The    bonds    issued    by    a 

The  pendency  of  a  suit  to  restrain  county  in  excess  of  the  amount  al- 

the  transfer  of  bonds  and  a  decree  lowed  by  law  are  void  and  their  col- 

in  such  suit  that  they  be  delivered  lection  cannot  be  enforced  even  by 

up   to   be   canceled,   are  inoperative  a  bona  fide  purchaser  for  value;  and 

as  respects  a  bona  fide   holder  for  when  a  number   of  bonds  partially 

value.    But  if  he  have  actual  knowl-  invalid  on  this  account,  are  issued 


204 


ISSUANCE    OF    SECURITIES. 


465 


that  where  a  public  corporation  has  issued  bonds  to  an  amount 
in  excess  of  its  constitutional  or  legislative  authority,  all  of  which 
were  issued  at  the  same  time,  each  bond  is  valid  to  the  extent  of 
its  proportionate  share  of  the  indebtedness  authorized.489  In  the 
first  line  of  authorities,  there  are  some  which  hold  that  if  the 
bonds  in  excess  of  the  constitutional  or  statutory  limitation  can 
be  separated  from  those  within  such  limit,  the  former  will  be  held 
void  and  the  latter  valid.490 

§  204.    Legality  as  affected  by  subsequent  legislation. 

If  there  exists  a  reason  for  the  doctrine  as  stated  in  a  pre- 
ceding section  in  regard  to  subsequent  adverse  decisions  of  the 
courts  as  affecting  the  validity  of  bonds,  good  at  the  time  of  is- 
sue, there  is  an  irrefutable  reason  for  the  principle  followed  by 
all  courts,  state  as  well  as  Federal,  that  the  validity  of  bonds, 
corporate  indebtedness  or  obligations  is  determined  by  laws  in 
force  at  the  time  when  such  bonds  were  issued  or  obligations  in- 
curred. They  cannot  be  affected  by  changes  subsequently  made 
and  this  rule  would  apply  in  the  case  of  bonds  authorized  but 


and  delivered  at  the  same  time,  or 
at  different  times  as  part  of  one 
transaction,  the  invalid  portion 
should  be  equally  distributed 
among  all  and  none  should  have  pri- 
ority. 

Aetna  Life  Ins.  Co.  v.  Lyon  Coun- 
ty, 95  Fed.  325;  Everett  v.  Inde- 
pendent School  Dist.  of  Rock  Rap- 
ids, 109  Fed.  697;  Sutro  v.  Pettit,  74 
Cal.  332;  Sutro  v.  Rhodes,  92  Cal. 
117;  Catron  v.  'La  Fayette  County, 
106  Mo.  659.  Borough  of  Millers- 
town  v.  Frederick,  114  Pa.  435, 
holds  the  whole  issue  void  where 
a  portion  is  in  excess  of  the  consti- 
tutional limitation.  Mitchell  Coun- 
ty v.  City  Nat.  Bank,  15  Tex.  Civ. 
App.  172,  39  S.  W.  628. 

489  City  of  Columbus  v.  Woon- 
socket  Inst.  of  Savings  (C.  C.  A.) 
114  Fed.  162.  Where  a  city  has  Is- 
sued bonds  to  an  amount  in  excess 
of  its  constitutional  authority,  all 


of  which  were  created  by  the  same 
ordinance  and  sold  at  the  same  time, 
each  bond  is  valid  to  the  extent  of 
its  proportionate  share  of  the  debt 
lawfully  contracted. 

Gillim  v.  Daviess  County,  12  Ky. 
L.  R.  596,  14  S.  W.  838;  Nolan  Coun- 
ty v.  State,  83  Tex.  182,  17  S.  W. 
823.  If  bonds  issued  by  a  county  in 
excess  of  the  amount  of  the  bonded 
debt  which  it  could  legally  create 
were  issued  at  the  same  time,  the 
amount  of  the  valid  debt  should  be 
distributed  between  them  pro  rata. 

490  Daviess  County  v.  Dickinson, 
117  U.  S.  657;  City  of  Litchfield  v. 
Ballou,  114  U.  S.  190;  Merchants' 
Exch.  Nat.  Bank  v.  Bergen  County, 
115  U.  S.  384;  McPherson  v.  Foster 
Bros.,  43  Iowa,  48;  Catron  v.  La 
Fayette  County,  106  Mo.  659;  Ball  v. 
Presidio  County,  88  Tex.  60,  29  S. 
W.  1042. 


Abb.  Corp.— 30. 


466 


POWERS. 


§  204 


not  yet  formally  executed  and  delivered.491  This  rule  also  ap- 
plies to  legislation  which  impairs  or  destroys  the  power  of  a 
public  corporation  to  levy  taxes  for  the  payment  of  either  prin- 
cipal or  interest  of  bonds  legally  issued  when  at  the  time  of  such 
issue  the  power  to  levy  taxes  for  this  specific  purpose  existed. 
The  power  to  levy  taxes,  it  is  held,  is  a  part  of  the  contract  be- 
tween the  corporation  and  the  holder  of  negotiable  bonds  which 
cannot  be  impaired  by  subsequent  action  in  violation  of  that 
provision  of  the  Federal  constitution  forbidding  the  passage  of 
laws  impairing  the  obligation  of  a  contract.492  The  principle 
also  prevents  the  passage  of  legislation  or  other  action  diverting 
funds  or  property  which  at  the  time  of  the  issue  of  the  bonds 


49i  Callaway  County  v.  Foster,  93 
U  S.  567;  German  Sav.  Bank  v. 
Franklin  County,  128  U.  S.  526. 
Where  the  court  in  the  syllabi  say: 
"After  a  statute  has  been  settled  by 
judicial  construction,  the  construc- 
tion becomes,  so  far  as  contract 
rights  acquired  under  it  are  con- 
cerned, as  much  a  part  of  the  stat- 
ute as  the  text  itself." 

Board  of  Education  of  Dist  No.  3 
v.  Bolton,  104  111.  220.  But  see 
Wade  v.  Town  of  La  Moille,  112  111. 
79,  and  Williams  v.  People,  132  111. 
574 ;  Slocomb  v.  City  of  Fayetteville, 
125  N.  C.  362;  People  v.  Otis,  90  N. 
Y.  48;  Knapp  v.  Town  of  Newtown, 
1  Hun  (N.  Y.)  268;  Dodge  v.  Platte 
County,  16  Hun  (N.  Y.)  285;  Marsh 
v.  Town  of  Little  Valley,  4  T.  &  C. 
(N.  Y.)  116;  Gibson  v.  Knapp,  21 
Misc.  499,  47  N.  Y.  Supp.  446;  City  of 
Mitchell  v.  Smith,  12  S.  D.  241,  80 
N.  W.  1077;  Stallcup  v.  City  of  Ta- 
coma,  13  Wash.  141.  A  purchaser 
has  the  right  to  rely  on  the  existing 
construction,  a  law  authorizing  the 
issue  of  bonds. 

*82  Von  Hoffman  v.  City  of  Quincy, 
71  U.  S.  (4  Wall.)  535;  City  of  Ga- 
lena v.  Amy,  72  U.  S.  (5  Wall.)  705; 
Riggs  T.  Johnson  County,  73  U.  S. 


(6  Wall.)  166;  Rees  v.  City  of  Wa- 
tertown,  86  U.  S.  (19  Wall.)  107; 
Louisiana  v.  City  of  New  Orleans, 
102  U.  S.  203;  Wolff  v.  City  of  New 
Orleans,  103  U.  S.  358;  Louisiana  v. 
Pilsbury,  105  U.  S.  278;  Rails  Coun- 
ty Ct.  v.  United  States,  105  U.  S. 
733;  Louisiana  v.  City  of  New  Or- 
leans, 109  U.  S.  285;  Port  of  Mobile 
v.  Watson,  116  U.  S.  289;  Seibert  v. 
Lewis,  122  U.  S.  284;  United  States 
v.  Howard  County  Ct,  2  Fed.  1; 
Devereaux  v.  City  of  Brownsville,  29 
Fed.  742;  Hicks  v.  Cleveland  (C.  C. 
A.)  106  Fed.  459;  Padgett  v.  Post 
(C.  C.  A.)  106  Fed.  600;  Maenhaut  v. 
City  of  New  Orleans,  2  Woods,  108, 
Fed.  Gas.  No.  8,939;  United  States 
v.  Jefferson  County,  5  Dill.  310,  Fed. 
Cas.  No.  15,472;  United  States  v. 
Johnson  County,  5  Dill.  207,  note, 
Fed.  Cas.  No.  15,489;  United  States 
v.  Treasurer  of  Muscatine  County, 
2  Abb.  53,  Fed.  Cas.  No.  16,538; 
Columbia  County  Com'rs  v.  King,  13 
Fla.  451;  Peoria,  D.  &  E.  R.  Co.  v. 
People,  116  111.  401;  Moore  v.  City  of 
New  Orleans,  32  La.  Ann.  726;  State 
v.  St.  Louis,  K.  &  N.  W.  R.  Co.,  130 
Mo.  243;  Munday  v.  City  of  Rahway, 
43  N.  J.  Law,  338;  McCless  v.  Meek- 
ins,  117  N.  C.  34;  Morton  v.  Comp- 


§205 


ISSUANCE    OF    SECURITIES. 


467 


was  either  devoted  or  to  be  devoted  to  the  payment  of  either 
their  principal  or  interest.493  The  general  tendency  of  all  courts, 
both  federal  and  state,  is  to  protect  the  contract  obligation  exist- 
ing in  favor  of  the  bona  fide  purchaser  of  negotiable  securities 
issued  by  public  corporations.  The  clause  of  the  Federal  consti- 
tution prohibiting  a  state  from  passing  any  law  impairing  the 
obligation  of  a  contract  affords  a  real  and  substantial  protection 
to  the  investor. 


§  205.    Securities  of  public  corporations;  their  legal  character. 

Bonds  issued  by  public  corporations,  either  with  or  without 
coupons  attached,  were,  at  first,  considered  by  the  courts  as  non- 
negotiable  instruments;  later,  however,  they  came  to  be  recog- 
nized as  negotiable  paper  and  bona  fide  holders  for  value  were 
protected  to  the  same  extent  as  holders  of  negotiable  notes  and 
bills  under  the  law  merchant.  They  arc  now  fully  and  univer- 
sally recognized  as  negotiable  instruments.494  They  are  also  con- 


troller General,  4  S.  C.  (4  Rich.) 
430;  City  of  Memphis  v.  Bethel 
(Term.)  17  S.  W.  191. 

493  Edwards  v.  Kearzey,  96  U.  S. 
595;  Louisiana  v.  Police  Jury  of  St. 
Martin's  Parish,  111  U.  S.  716;  St. 
Tammany  Water  Works  v.  New  Or- 
leans Water  Works,  120  U.  S.  64; 
Lehigh  Water  Co.  v.  Borough  of 
Easton,  121  U.  S.  388;  McGahey  v. 
State  of  Virginia,  135  U.  S.  662;  Sun 
Mut.  Ins.  Co.  v.  Board  of  Liquida- 
tion of  New  Orleans,  24  Fed.  4; 
Fazende  v.  City  of  Houston,  34  Fed. 
95;  Saginaw  Gas  Light  Co.  v.  City 
of  Saginaw,  28  Fed.  529;  Willis  v. 
Miller,  29  Fed.  238;  Coast  Line  R. 
Co.  v.  City  of  Savannah,  30  Fed. 
646;  Maenhaut  v.  City  of  New  Or- 
leans, 2  Woods,  108,  Fed.  Cas.  No. 
8,939;  Edwards  v.  Williamson,  70 
Ala.  145;  Brodie  v.  McCabe,  33  Ark. 
690;  English  v.  Sacramento  City  & 
County  Sup'rs,  19  Cal.  172  (Sinking 
fund  tax) ;  Board  of  Liquidators  of 
City  Debts  v.  Municipality  No.  1,  6 


La.  Ann.  21;  State  v.  Board  of  Liqui- 
dation of  City  Debt,  40  La.  Ann.  398; 
State  v.  Walsh,  31  Neb.  469;  Brook- 
lyn Park  Com'rs  v.  Armstrong,  45 
N.  Y.  234;  People  v.  Common  Coun- 
cil of  Buffalo,  140  N.  Y.  300;  Lilly  v. 
Taylor,  88  N.  C.  489;  Goodale  v. 
Fennell,  27  Ohio  St.  426;  Bassett  v. 
City  of  El  Paso,  88  Tex.  168,  30  S. 
W.  893;  Terry  v.  Wisconsin  M.  & 
F.  Ins.  Co.  Bank,  18  Wis.  87;  Smith 
v.  City  of  Appleton,  19  Wis.  468. 

494  Mercer  County  v.  Racket,  68  U. 
S.  (1  Wall.)  83.  Gelpcke  v.  City  of  , 
Dubuque,  68  U.  S.  (1  Wall.)  175. 
"Bonds  and  coupons  like  these  by 
universal  commercial  usage  and  con- 
sent have  all  the  qualities  of  com- 
mercial paper."  Meyer  v.  City  of 
Muscatine,  68  U.  S.  (1  Wall.)  384. 

Police  Jury  of  Tensas  v.  Britton, 
82  U.  S.  (15  Wall.)  566.  "The  bonds 
and  coupons  on  which  a  recovery  is 
now  sought  are  commercial  instru- 
ments, payable  at  a  future  day  and 
transferable  from  hand  to  hand. 


468 


POWERS. 


§  205 


sidered  chattels  in  so  far  as  that  character  tends  to  relieve  them 
from  defenses  and  burdens  incident  to  choses  in  action  and  to 
give  them  a  merchantable  character  for  investment  and  commer- 
cial purposes.496  The  legal  effect  of  such  a  character  is  to  place 
them  on  an  equality  before  the  law  with  ordinary  negotiable 
paper  pertaining  to  the  commercial  business  of  the  country  and 
to  make  them  marketable  and  vendible  and  before  maturity,  free 
of  equities  between  the  original  parties.498 


Such  instruments  transferred  be- 
fore maturity  to  a  bona  fide  pur- 
chaser leave  behind  them  all  equi- 
ties and  inquiries  into  consideration 
and  the  conduct  of  parties;  and  be- 
come, in  the  hands  of  an  inno- 
cent holder,  clean  obligations  to 
pay,  without  any  power  on  the 
part  of  the  municipality  to  de- 
mand any  inquiry  as  to  the  justice 
or  legality  of  the  original  claim,  or 
to  plead  any  corrupt  practice  of  the 
parties  in  obtaining  the  security. 
This  characteristic  of  commercial 
paper,  which  no  court  has  more 
faithfully  enforced  than  this,  raises 
the  doubt  whether  the  power  to  issue 
It  can  be  implied  from  the  ordinary 
powers  of  local  administration  and 
police  which  are  conferred  upon  the 
boards  and  trustees  of  political  dis- 
tricts." 

City  of  Nashville  v.  Ray,  86  U.  S. 
(19  Wall.)  468;  Humboldt  Tp.  v. 
Long,  92  U.  S.  642;  Marion  County 
Com'rs  v.  Clark,  94  U.  S.  278;  Car- 
ter County  v.  Sinton,  120  U.  S.  517, 
7  Sup.  Ct.  650;  County  of  Wilson  v. 
Third  Nat.  Bank,  103  U.  S.  770.  The 
words  to  "bearer"  or  "order"  are  not 
essential  to  negotiability.  City  of 
Ottawa  v.  First  Nat.  Bank,  105  U.  S. 
342.  See  note  to  White  v.  Vermont 
&  M.  R.  Co.,  16  L.  Ed.  221;  Griffith 
v.  Burden,  35  Iowa,  138;  Craig  v. 
City  of  Vicksburg,  31  Miss.  216. 

But   a   bond   not   complying  with 


the  requirements  of  negotiable  paper 
lacking,  for  instance,  a  definite  and 
certain  sum  to  be  paid,  will  not  be 
considered  negotiable.  See  Parsons 
v.  Jackson,  99  U.  S.  434;  Hopper  v. 
Town  of  Covington,  8  Fed.  777;  Id., 
118  U.  S.  148;  1  Daniel,  Neg.  Inst.  § 
53;  City  of  Memphis  v.  Brown,  11 
Am.  Law  Reg.  (N.  S.)  629. 

495  City  of  Memphis  v.  Brown,  11 
Am.  Law  Reg.  (N.  S.)   629;   Griffith 
v.  Burden,   35   Iowa,   138;    State  v. 
Cunningham,  51  Mo.  479;    Force  v. 
City  of  Elizabeth,  27  N.  J.  Eq.  408. 

496  Murray    v.    Lardner,    69    U.    S. 
(2  Wall.)  110;  Aurora  City  v.  West, 
74  U.  S.  (7  Wall.)  82;  Marion  Coun- 
ty  Com'rs   v.   Clark,   94  U.  S.   278; 
Durant  v.  Iowa  County,  1  Woolw.  69, 
Fed.  Gas.  No.  4,189;  Griffith  v.  Bur- 
den,   35     Iowa,     138;     Consolidated 
Ass'n  of  Planters  v.  Avegno,  28  La. 
Ann.    552;    First  Nat.   Bank   of   St. 
Paul    v.    Scott    County    Com'rs,    14 
Minn.  77  (Gil.  59).     Where  negotia- 
ble bonds  bearing  interest  annually 
have  attached  coupons  for  the  pay- 
ment of  interest  and  are  transferred 
with  overdue  coupons  still  attached, 
the  purchaser  takes  them  subject  to 
any  infirmity  of  title  in  the  seller. 
The  fact   that   the  coupons  are  by 
their  terms  payable  on  presentation 
to  a  particular  person  does  not  af- 
fect this  rule. 

Belo  v.  Forsythe  County  Com'rs, 
76  N.  C.  489;   Boyd  v.  Kennedy,  38 


§  205 


ISSUANCE    OF    SECURITIES. 


469 


The  authorities  also  hold  that  this  character  makes  them  ex- 
empt from  the  defense  of  usury  founded  on  the  fact  that  they 
may  have  been  issued  and  sold  below  par  value,497  and  also  sub- 
ject to  the  rule  of  damages  in  an  action  for  conversion  which 
applies  to  chattels  rather  than  that  which  applies  to  private  evi- 
dence of  debt.498  As  between  parties  by  delivery,  unless  regis- 
tered, the  bearer  has  full  title  and  the  maker  cannot  set  up 
against  one  who  has  taken  them  in  good  faith,  equities  which 
might  be  available  against  the  original  payee  provided  they  were 
not  utterly  void  in  their  inception.  Their  legal  character,  as  thus 
stated,  is  sustained  at  the  present  time  by  an  overwhelming  and 
universal  weight  of  authority.499 

The  statutory  authority  to  issue  bonds  bearing  interest,  run- 
ning for  a  long  time  and  payable  to  bearer  or  with  provisions  for 
registration,  usually  authorizes,  by  implication,  the  issuance  of 
bonds  fully  negotiable  in  their  character  according  to  the  usual 
rules  of  the  law  merchant.600 


N.  J.  Law,  146.  See  Diamond  v. 
Lawrence  County,  37  Pa.  353,  as  an 
early  case  holding  that  a  county 
bond  is  subject,  even  in  the  hands 
of  innocent  holders,  to  equities  ex- 
isting against  them  in  favor  of  the 
maker.  Such  bonds  not  having, 
however,  the  quality  of  commercial 
paper  in  Pennsylvania.  "We  will 
not  treat  bonds  like  these  as  nego- 
tiable securities:  on  this  ground  we 
stand  alone.  All  the  courts,  Amer- 
ican and  English,  are  against  us." 
This  holding  has  since  been  revers- 
ed. See  Mason  v.  Frick,  105  Pa.  162. 
49"  Richardson  v.  Lawrence  Coun- 
ty, 154  U.  S.  536;  Woods  v.  Law- 
rence County,  1  Black  (U.  S.)  386, 
410. 

498  Meixell  v.  Kirkpatrick,  33  Kan. 
282;    Murray    v.    Stanton,    99    Mass. 
345. 

499  Durant     v.     Iowa     County,     1 
Woolw.  69,  Fed.  Gas.  No.  4,189;  Han- 
cock v.  Chicot  County,  32  Ark.  575; 
Lindsey  v.   Rottaken,   32   Ark.   619; 
Jefferson  County  v.  Burlington  &  M. 


R.  R.  Co.,  66  Iowa,  385;  Maddox  v. 
Graham,  59  Ky.  (2  Mete.)  56;  Cecil 
v.  Board  of  Liquidation,  30  La.  Ann. 
34,  51  Am.  St.  Rep.  822-861,  98  Am. 
Dec.  664-691;  Simonton,  Mun.  Bonds, 


BOO  City  of  Cadillac  v.  Woonsocket 
Inst.  for  Savings  (C.  C.  A.)  58  Fed. 
935.  "This  act  clearly  authorizes  the 
issuance  of  'bonds'  bearing  a  legal 
rate  of  interest  for  any  loans  lawful- 
ly made.  It  also  empowers  the  coun- 
cil to  issue  'new  bonds,'  to  extend 
the  time  of  payment  of  'bonds  fall- 
ing due.'  That  this  contemplates, 
and  by  necessary  implication  author- 
izes, the  issue  of  negotiable  bonds 
we  have  no  doubt.  The  general 
power  to  issue  'bonds'  must  be  taken 
to  authorize  'bonds'  in  the  usual 
form  of  such  well  known  commer- 
cial obligations.  That  usual  form 
embodies  a  contract  and  obligation 
negotiable  in  its  terms."  Distin- 
guishing Brenham  v.  German  Amer- 
ican Bank,  144  U.  S.  173. 

Ashley    v.    Presque    Isle    County 


470 


POWERS. 


§  206 


§  206.    Validity  of  negotiable  securities.    The  doctrine  of  es- 
toppel. 

Bonds  possessing  all  of  the  elements  and  characteristics  of  ne- 
gotiable paper,  as  stated  in  the  preceding  section,  are  not  sub- 
ject, before  maturity,  when  in  the  hands  of  bona  fide  and  inno- 
cent purchasers  for  value,  to  equities  that  may  exist  in  favor  of 
the  maker  of  such  bonds.  The  doctrine  of  estoppel  has  been 
held  to  apply  to  the  maker  through  acquiescence  in  the  existence 
of  certain  conditions  or  circumstances  which  might,  if  taken  ad- 
vantage of  speedily,  relieve  it  from  its  obligation,  through  the 
principle  of  estoppel  by  recitals,  course  of  dealing  and  the  pay- 
ment of  interest  to  be  considered  in  succeeding  sections. 

The  nonperformance  of  conditions  required  to  be  fulfilled  by 
the  party  entitled  to  bonds,  if  acquiesced  in,  is  not  sufficient  to 
render  such  bonds  invalid.501  A  public  corporation  that  has  as 
such  voted  for  and  issued  bonds,  it  has  been  held,  is  estopped 
from  setting  up  as  a  defense  against  an  innocent  holder  that  it 
never  was  incorporated.502  So  also  is  a  public  corporation  hav- 


Sup'rs  (C.  C.  A.)  60  Fed.  55;  West 
Plains  Tp.  v.  Sage  (C.  C.  A.)  69  Fed. 
943;  Howard  v.  Kiowa  County,  73 
Fed.  406;  German  Ins.  Co.  v.  City  of 
Manning,  78  Fed.  900;  D'Esterre  v. 
City  of  Brooklyn,  90  Fed.  586;  City 
of  Austin  v.  Nalle,  85  Tex.  520,  22  S. 
W.  668,  960;  Winston  v.  City  of  Ft. 
Worth  (Tex.  Civ.  App.)  47  S.  W. 
740. 

BOX  Knox  County  Com'rs  v.  Aspin- 
wall,  21  How.  (U.  S.)  539;  Randolph 
County  v.  Post,  93  U.  S.  502,  and 
cases  cited;  Augusta  Bank  v.  City  of 
Augusta,  49  Me.  507;  Deming  v.  In- 
habitants of  Houlton,  64  Me.  254; 
Shurtleff  v.  Inhabitants  of  Wiscas- 
set,  74  Me.  130.  In  Morril  v.  Smith 
County  (Tex.  Civ.  App.)  33  S.  W. 
899,  it  is  held,  however,  that  where 
the  fact  of  the  non-performance  of 
conditions  can  be  ascertained  by  an 
inspection  of  the  records  on  the  part 
of  the  purchaser,  the  corporation 


will  not  be  estopped  to  set  such  up 
as  a  defense. 

so2Aller  v.  Cameron,  3  Dill.  198, 
Fed.  Cas.  No.  243.  See,  also,  Na- 
tional Life  Ins.  Co.  v.  Board  of  Edu- 
cation of  Huron,  62  Fed.  778,  where 
the  illegality  of  an  incorporation 
was  set  up  as  a  defense  to  bonds  is- 
sued by  a  board  of  education  organ- 
ized as  a  corporate  body.  The  court 
in  its  opinion  say:  "It  was  recog- 
nized and  its  action  was  acquiesced 
in,  by  the  state  and  by  the  citizens, 
for  at  least  18  months;  and,  as 
against  bona  fide  purchasers  of  its 
bonds,  its  acts,  as  a  de  facto  board 
of  education,  if  within  the  powers 
granted  to  a  board  legally  organized 
under  this  law,  are  binding  upon  the 
defendant  corporation.  It  is  the 
province  of  the  state  to  question,  by 
proper  judicial  proceedings,  its  in- 
corporation; not  that  of  a  defend- 
ant in  a  private  suit,  when  it  has  as- 


206 


ISSUANCE    OF   SECURITIES. 


471 


ing  the  authority  to  issue  bonds  for  one  purpose  estopped  from 
setting  up  as  a  defense  against  a  bona  fide  and  innocent  pur- 
chaser of  such  bonds,  the  fact  that  the  moneys  derived  from 
their  sale  were  used  for  a  different  purpose,  perhaps  an  illegal 
one,  from  that  for  which  they  purported  or  were  authorized  to 
be  issued  or  that  such  moneys  were  never  expended  for  the  bene- 
fit of  the  Corporation.503  Some  authorities  also  hold  that  where 


serted  its  corporate  existence,  and 
incurred  liabilities  to  innocent  par- 
ties on  the  faith  of  it.  'When  a 
municipal  body  has  assumed,  under 
color  of  authority,  and  exercised,  for 
any  considerable  period  of  time,  with 
the  consent  of  the  state,  the  powers 
of  a  public  corporation,  of  a  kind 
recognized  by  the  organic  law,  neith- 
er the  corporation  nor  any  private 
party  can,  in  private  litigation,  ques- 
tion the  legality  of  its  existence.' " 
See  cases  cited. 

sosHackett  v.  City  of  Ottawa,  99 
U.  S.  86.  "It  would  be  the  grossest 
injustice  and  in  conflict  with  all  the 
past  utterances  of  this  court  to  per- 
mit the  city,  having  power  under 
some  circumstances  to  issue  negotia- 
ble securities,  to  escape  liability 
upon  the  ground  of  the  falsity  of  its 
own  representations,  made  through 
official  agents  and  under  its  corporate 
seal  as  to  the  purposes  with  which 
these  bonds  were  issued.  Whether 
such  representations  were  made  in- 
advertently or  with  the  intention  by 
the  use  of  inaccurate  titles  of  ordi- 
nances, to  avert  inquiry  as  to  the 
real  object  in  issuing  the  bonds,  and 
thereby  facilitate  their  negotiation 
in  the  money  markets  of  the  coun- 
try, in  either  case,  the  city,  both 
upon  principle  and  authority,  is  cut 
off  from  any  such  defense.  What 
this  court  declared  in  Zabriskie  v. 
Cleveland,  C.  &  C.  R.  Co.,  23  How. 
(U.  S.)  381,  as  to  private  corpora- 
tions, may  be  reiterated  as  peculiar- 


ly applicable  to  this  case;  'A  corpo- 
ration, quite  as  much  as  an  indi- 
vidual, is  held  to  a  careful  adher- 
ence to  truth  in  their  dealings  with 
mankind  and  cannot  by  their  repre- 
sentations or  silence  involve  others 
in  onerous  engagements  and  then  de- 
feat the  calculations  and  claims 
their  own  conduct  had  superin- 
duced.' "  Portland  Sav.  Bank  v. 
City  of  Evansville,  25  Fed.  389; 
Pickens  Tp.  v.  Post  (C.  C.  A.)  99 
Fed.  659;  Francis  v.  Howard  Coun- 
ty, 50  Fed.  44;  National  Life  Ins.  Co. 
v.  Board  of  Education  of  Huron  (C. 
C.  A.)  62  Fed.  778.  The  city  of 
Huron  issued  bonds,  the  proceeds  of 
which  were  used  by  it  for  the  pur- 
pose of  conducting  a  campaign  in 
the  state  legislature  for  the  location 
of  the  state  capital  of  South  Dakota 
at  that  city.  This  unlawful  use  was 
urged  as  an  objection  to  the  validity 
of  the  bonds  and  on  this  point  the 
court  say:  "It  is  no  defense  to  these 
bonds,  against  innocent  purchasers 
for  value,  before  maturity,  that  the 
defendant  loaned  $59,500  of  the  pro- 
ceeds of  the  sale  of  them  to  the  city 
of  Huron  for  city  warrants  that  were 
never  paid,  and  that  cannot  be  legal- 
ly enforced,  so  that  it  has  actually 
realized  but  $500  from  the  sale  of 
its  bonds.  That  a  municipal  corpo- 
ration has  given  away  or  squandered 
the  proceeds  of  negotiable  securities 
which  it  placed  upon  the  market 
cannot  affect  the  rights  of  bona  fide 
purchasers,  who  had  no  knowledge 


472 


POWERS. 


206 


the  statutory  authority  exists  and  bonds  are  issued,  the  maker 
will  be  estopped  from  denying  their  execution  when  it  has  re- 
ceived and  retained  the  benefit  of  the  moneys  evidenced  by  the 


of,  nor  part  in,  the  gift  or  waste. 
They  are  in  no  way  responsible  for 
the  wise  and  economical  use  by  the 
corporation  of  the  funds  it  borrows. 
Anderson  County  Com'rs  v.  Beal,  113 
U.  S.  227;  City  of  Cairo  v.  Zane, 
149  U.  S.  122;  Maxcy  v.  Williamson 
County  Ct,  72  111.  207. 

"Nor  is  it  any  defense  to  such 
bonds,  as  against  bona  fide  purchas- 
ers, that  the  citizens  and  officers  of 
a  municipal  corporation,  with  the 
intention  to  use  the  proceeds  of  the 
bonds  for  an  unlawful  purpose,  took 
the  necessary  steps  to  issue  them  for 
a  lawful  purpose,  certified  on  the 
face  of  the  bonds  that  they  were  is- 
sued for  such  lawful  purpose,  and 
then  appropriated  the  proceeds  to 
the  unlawful  purpose.  Corporations 
are  as  strongly  bound  to  an  adher- 
ence to  truth  in  their  dealings  with 
mankind  as  are  individuals,  and 
they  cannot,  by  their  representa- 
tions or  silence,  induce  others  to 
part  with  their  money  or  property, 
and  then  repudiate  the  obligations 
for  which  the  money  was  expended, 
and  which  their  statements  repre- 
sented to  be  valid.  The  defendant, 
in  its  resolutions  and  records,  in  all 
the  resolutions  and  records  of  the 
city  council  of  Huron  in  the  call 
for  and  vote  at  the  election  which 
authorized  the  issue  of  the  bonds, 
and  in  the  bonds  themselves,  de- 
clared that  they  were  issued  for  a 
lawful  purpose,  viz.,  'to  raise  funds 
for  the  purchase  of  a  school  site, 
and  for  the  erection  of  a  school 
building  thereon.'  The  present  hold- 
ers purchased  them  and  paid  for 
them  with  no  notice  or  knowledge 


that  they  were  issued  for  any  other 
purpose,  and  in  the  full  belief  that 
these  declarations  were  true.  It  is 
no  defense  for  this  corporation,  as 
against  these  bona  fide  purchasers, 
that  during  all  this  time  it  intended 
to  use,  and  has  since  used,  the 
money  it  raised  from  these  bonds 
for  the  unlawful  purpose  of  conduct- 
ing a  campaign  for  the  state  capital. 
It  is  no  defense  that  it  knew  at  the 
time  it  was  taking  these  proceed- 
ings and  making  these  declarations 
that  they  were  false,  and  that  dur- 
ing all  this  time  it  intended — First, 
to  deprive  itself  of  the  school  site 
and  building;  and  second,  to  deprive 
the  purchasers  of  the  bonds  of  the 
moneys  they  paid  for  them  on  the 
faith  of  its  representations,  and  that 
it  has  accomplished  the  former  pur- 
pose, and  now  seeks,  with  the  aid 
of  the  courts,  to  accomplish  the  lat- 
ter. Such  a  plea  cannot  be  enter- 
tained in  a  court  of  justice.  The 
corporation  is  estopped  to  deny  that 
these  bonds  were  issued  to  raise 
money  for  a  school  site  and  school 
building."  West  Plains  Tp.  v.  Sage 
(C.  C.  A.)  69  Fed.  943;  Lyon  County 
v.  Keene  Five-Cent  Sav.  Bank  (C.  C. 
A.)  100  Fed.  337,  affirming  97  Fed. 
159;  D'Esterre  v.  City  of  New  York, 
104  Fed.  605;  Wood  v.  City  of  Lou- 
isiana, 5  Dill.  122,  Fed.  Gas.  No.  17,- 
948:  Borough  of  Freeport  v.  Marks, 
59  Pa.  253;  Bond  Debt  Cases,  12  S. 
C.  200;  Jones  v.  City  of  Camden,  44 
S.  C.  319;  Nolan  County  v.  State,  83 
Tex.  182,  17  S.  W.  823;  Town  of 
Clifton  Forge  v.  Alleghany  Bank,  92 
Va.  283,  23  S.  E.  284.  See,  also, 
cases  cited  §  210. 


§  207 


ISSUANCE    OF    SECURITIES. 


473 


bonds.504  These  principles  of  estoppel  apply,  however,  only  to 
innocent  purchasers,  or  those  not  having  knowledge  of  irregu- 
larities or  defects  in  issue,  execution  and  delivery, — a  rule  so  well 
established  that  the  citation  of  many  authorities  is  unnecessary.505 

§  207.    The  same  subject. 

For  the  protection  of  the  bona  fide  holder  of  negotiable  bonds 
we  have  then  the  well-established  principle  applying  to  negotia- 
ble paper,  that  a  bona  fide  holder  for  value  before  maturity  and 
without  notice  takes  an  absolute  title  and  is  not  affected  by  equi- 
ties which  are  good  as  between  the  original  parties,  the  courts 
holding  that  bonds  issued  by  public  corporations  containing  ne- 
gotiable words  partake  of  the  character  and  are  negotiable  paper 
according  to  the  strict  meaning  of  the  word  as  used  in  the  law 
merchant.506  The  principle  or  doctrine  of  equitable  estoppel  also 


BO*  Mobile  v.  Sands,  127  Ala.  493, 
29  So.  26;  Brown  v.  Milliken,  42 
Kan.  769;  Oswego  Tp.  v.  Anderson, 
44  Kan.  214,  24  Pac.  486.  See,  how- 
ever, Municipal  Security  Co.  v.  Ba- 
ker County,  33  Or.  338,  54  Pac.  174, 
as  holding  to  the  contrary.  Nolan 
v.  State,  83  Tex.  182,  17  S.  W.  823. 

505  Cromwell  v.  Sac  County,  96  -U. 
S.  59;  Scotland  County  v.  Hill,  132 
U.  S.  107;  Brooklyn  Trust  Co.  v. 
Town  of  Hebron,  51  Conn.  22;  Town 
of  Essex  v.  Day,  52  Conn.  483;  Madi- 
son County  Sup'rs  v.  Brown,  67 
Miss.  684;  Hopple  v.  Hippie,  33  Ohio 
St.  116. 

sea  in  speaking  of  the  commer- 
cial character  of  municipal  bonds, 
Mr.  Justice  Grier  said  in  Mercer 
County  v.  Hackett,  68  U.  S.  (1 
Wall.)  83:  "This  species  of  bonds 
is  a  modern  invention  intended  to 
pass  by  manual  delivery  and  to  have 
the  qualities  of  negotiable  paper  and 
their  values  depends  mainly  upon 
this  character.  Being  issued  by 
states  and  corporations,  they  are 
necessarily  under  seal.  But  there  is 


nothing  immoral  or  contrary  to 
good  policy  in  making  them  negotia- 
ble, if  the  necessities  of  commerce 
require  that  they  should  be  so.  A 
mere  technical  dogma  of  the  courts 
or  the  common  law  cannot  prohibit 
the  commercial  world  from  invent- 
ing or  using  any  species  of  security 
not  known  in  the  last  century. 
Usage  of  trade  and  commerce  are 
acknowledged  by  the  courts  as  part 
of  the  common  law  although  they 
may  have  been  unknown  to  Bracton 
or  Blackstone.  And  this  malleabili- 
ty to  suit  the  necessities  and  usages 
of  the  mercantile  and  commercial 
world  is  one  of  the  most  valuable 
characteristics  of  the  common  law. 
When  a  corporation  covenants  to 
pay  to  bearer  and  gives  a  bond  with 
negotiable  qualities  and  by  this  rea- 
son obtains  funds  for  the  accom- 
plishment of  the  useful  enterprises 
of  the  day,  it  cannot  be  allowed  to 
evade  the  payment  by  parading  some 
obsolete  judicial  decision  that  a 
bond  for  some  technical  reason  can- 
not be  made  payable  to  bearer.  That 


474 


POWERS. 


§  207 


is  applied  for  the  protection  of  the  bona  fide  holder  of  such  bonds, 
namely,  that  where  public  corporations  with  full  knowledge  of 
defects  in  the  manner  of  issue  after  having  received  and  retained 
the  benefits  of  the  proceeds  of  their  bonds507  recognize  directly 
or  indirectly  the  validity  of  such  bonds  by  the  levying  of  a  tax 
for  their  payment  or  the  payment  of  interest,508  the  voting  or 
retention  of  stock  purchased  with  the  proceeds,509  their  recogni- 


these  securities  are  treated  as  nego- 
tiable by  the  commercial  usages  of 
the  whole  civilized  world  and  have 
received  the  sanction  of  judicial 
recognition,  not  only  in  this  court 
but  of  nearly  every  state  in  the 
Union,  is  well  known  and  admitted. 
*  *  *  Although  we  doubt  not  the 
facts  stated  as  to  the  atrocious 
frauds  which  have  been  practiced  in 
some  counties,  in  issuing  and  ob- 
taining these  bonds,  we  cannot  agree 
to  overrule  our  own  decisions  and 
change  the  law  to  suit  hard  cases. 
The  epidemic  insanity  of  the  people, 
the  folly  of  county  officers,  the 
knavery  of  railroad  'speculators,' 
are  pleas  which  might  have  just 
weight  in  an  application  to  restrain 
the  issue  or  negotiation  of  these 
bonds,  but  cannot  prevail  to  author- 
ize their  repudiation,  after  they  have 
been  negotiated  and  have  come  into 
the  possession  of  bona  fide  holders." 
See,  also,  authorities  cited  under  § 
205. 

SOT  Kiowa  County  Com'rs  v.  How- 
ard (C.  C.  A.)  83  Fed.  296;  Rondot 
v.  Rogers  Tp.  (C.  C.  A.)  99  Fed.  202, 
citing  Marshall  County  Sup'rs  v. 
Schenck,  72  U.  S.  (5  Wall.)  772; 
State  v.  Van  Home,  7  Ohio  St.  327; 
State  v.  Trustees  of  Union  Tp.,  8 
Ohio  St.  394;  State  v.  Trustees  of 
Goshen  Tp.,  14  Ohio  St.  569;  New 
York  Life  Ins.  Co.  v.  Cuyahoga 
County  Com'rs  (C.  C.  A.)  106  Fed. 
123.  But  see  Travelers'  Ins.  Co.  v. 
Johnson  City  (C.  C.  A.)  99  Fed.  663, 


49  L.  R.  A.  123,  where  it  is  held  in 
the  absence  of  authority  to  issue 
bonds  and  where  the  benefits  claimed 
to  have  been  received  and  retained 
are  of  a  doubtful  character  that  such 
bonds  are  void  even  in  the  hands  of 
bona  fide  holders. 

BOS  Nugent  v.  Putnam  County 
Sup'rs,  86  U.  S.  (19  Wall.)  241; 
County  of  Clay  v.  Society  for  Sav- 
ings, 104  U.  S.  579;  City  of  Parkers- 
burg  v.  Brown,  106  U.  S.  487;  Ander- 
son County  Com'rs  v.  Beal,  113  U.  S. 
227;  Hill  v.  City  of  Memphis,  134 
U.  S.  198;  Citizens'  Sav.  &  Loan 
Ass'n  v.  Perry  County,  156  U.  S. 
692;  New  Haven,  M.  &  W.  R.  Co.  v. 
Chatham,  42  Conn.  465;  Town  of 
Keithsburg  v.  Frick,  34  111.  405; 
People  v.  Cline,  63  111.  394;  Lippin- 
cott  v.  Town  of  Pana,  92  111.  24; 
Leavenworth,  L.  &  G.  R.  Co.  v. 
Douglas  County  Com'rs,  18  Kan. 
169;  Morris  County  Com'rs  v.  Hinch- 
man,  31  Kan.  729;  David  v.  Parish  of 
East  Baton  Rouge,  27  La.  Ann.  230; 
Town  of  Mentz  v.  Cook,  108  N.  Y. 
504;  Germania  Sav.  Bank  v.  Town 
of  Darlington,  50  S.  C.  337;  Nelson  v. 
Haywood  County,  87  Tenn.  781.  See, 
also,  §  200,  note  479,  supra,  and  § 
208,  post.  But  see  to  the  contrary, 
Citizens'  Sav.  &  Loan  Ass'n  v.  City 
of  Topeka,  87  U.  S.  (20  Wall.)  665; 
Daviess  County  Ct.  v.  Howard,  76 
Ky.  (13  Bush)  101;  and  First  Nat. 
Bank  of  Decorah  v.  District  Tp.  of 
Doon,  86  Iowa,  330,  53  N.  W.  301. 

SOD  Pendleton   County   v.   Amy,   80 


§  207 


ISSUANCE    OF   SECURITIES. 


tion  by  public  officials  or  the  corporation  as  valid,510  the  reten- 
tion of  the  consideration,511  or  the  issue  or  renewal  of  refunding 
bonds  to  replace  them,512  will  not  be  heard  to -raise  the  question 
of  such  irregularities  as  a  defense  in  an  action  against  them. 


U.  S.  (13  Wall.)  297;  Nugent  v.  Put- 
nam County  Sup'rs,  86  U.  S.  (19 
Wall.)  241;  Luling  v.  City  of  Ra- 
cine, 1  Biss.  314,  Fed.  Gas.  No.  8,603. 
But  see  Marsh  v.  Fulton  County,  77 
U.  S.  (10  Wall.)  676. 

BIO  Marshall  County  Sup'rs  v. 
Schenck,  72  U.  S.  (5  Wall.)  781; 
Jasper  County  v.  Ballou,  103  U.  S. 
745;  Atchison  Board  of  Education 
v.  De  Kay,  148  U.  S.  591;  Ranger  v. 
City  of  New  Orleans,  2  Woods,  128, 
Fed.  Gas.  No.  11,564;  Meyer  v. 
City  of  Muscatine,  68  U.  S.  (1 
Wall.)  384;  Portsmouth  Sav.  Bank 
v.  City  of  Springfield,  4  Fed.  276; 
City  of  Columbus  v.  Dennison 
(C.  C.  A.)  69  Fed.  58;  Cronin 
v.  Patrick  County,  89  Fed.  79; 
Washington  County  v.  Williams, 
111  Fed.  801;  Society  for  Savings 
v.  City  of  New  London,  29  Conn. 
175;  Town  of  Essex  v.  Day,  52  Conn. 
483;  Leavenworth,  L.  &  G.  R.  Co.  v. 
Douglas  County  Com'rs,  18  Kan.  170; 
State  v.  Scott  County  Com'rs,  58 
Kan.  491,  49  Pac.  663;  Morris  Coun- 
ty Com'rs  v.  Hinchman,  31  Kan.  729; 
Town  of  Eminence  v.  Grasser's  Ex'r, 
81  Ky.  52;  Carver  v.  Board  of  Liqui- 
dation, 35  La.  Ann.  261;  Washington 
County  v.  David,  2  Neb.  Unoff.  649, 
89  N.  W.  737;  State  v.  Van  Home,  7 
Ohio  St.  330;  State  v.  Trustees  of 
Goshen  Tp.,  14  Ohio  St.  569;  State 
v.  Mitchell,  31  Ohio  St.  592;  Presidio 
County  v.  City  Nat.  Bank  (Tex.  Civ. 
App.)  44  S.  W.  1069;  Town  of  Ben- 
nington  v.  Park,  50  Vt.  178.  But  see 
to  the  contrary,  Weismer  v.  Village 
of  Douglas,  64  N.  Y.  91;  and  Os- 
wego  County  Sav.  Bank  v.  Town  of 


Genoa,   66   App.   Div.  330,   72   N.  Y. 
Supp.  786. 

511  Pendleton   County  v.   Amy,   80 
U.    S.     (13    Wall.)     297;     Anderson 
County    Com'rs    v.    Beal,    113   U.    S. 
227;    Whiting  v.  Town  of  Potter,  2 
Fed.  517;  Third  Nat.  Bank  of  Syra- 
cuse  v.   Town   of   Seneca   Falls,   15 
Fed.    783.      Such   bonds    have    been 
held  void  in  some  cases  but  the  cor- 
poration    receiving    their    proceeds 
will  be  required  to  do  equity  to  the 
other  party.    See  Brown  v.  City  of 
Atchison,  39  Kan.  37,  and  Clark  v. 
Saline  County   Com'rs,   9    Neb.    516. 
The   same   doctrine   also   applies   to 
private  corporations  or  individuals. 
See,  Bradley  v.  Ballard,  55  111.  414; 
State  Board  of  Agriculture  v.  Citi- 
zens'  St.  R.  Co.,   47   Ind.  407;    Mor- 
ville   v.    American    Tract    Soc.,    123 
Mass.  129;  Parish  v.  Wheeler,  22  N. 
Y.    494,    and    Northwestern    Union 
Packet   Co.    v.    Shaw,    37   Wis.   655. 
But  the  supreme  court  of  the  United 
States  has  held  in  a  recent  case  that 
the  rule  will  not  apply  where  there 
is  an  absolute  want  of  power  and  a 
violation   of  the   constitution  in  is- 
suing    the    bonds.      See    Hedges    v. 
Dixon  County,  150  U.  S.  182;  Zabris- 
kie  v.  Cleveland,  C.  &  C.  R.  Co.,  23 
How.  (U.  S.)  381;  Bissell  v.  City  of 
Jeffersonville,  24  How.   (U.  S.)  287; 
Town  of  Coloma  v.  Eaves,  92  U.  S. 
484;   Hackett  v.  City  of  Ottawa,  99 
U.  S.  86;   Chaffee  County  v.  Potter, 
142  U.  S.  355. 

512  Graves  v.  Saline  County,  161  U. 
S.  359;    Ballou  v.  Jasper  County,  3 
Fed.  620;  City  of  Cadillac  v.  Woon- 
socket  Inst.  for  Savings   (C.  C.  A.) 


476 


POWERS. 


§  208 


§  208.    Estoppel  through  the  payment  of  interest. 

As  a  particular  form  of  the  application  of  the  doctrine  of  equi- 
table estoppel  against  a  public  corporation  to  deny  the  validity 
of  its  bonds  in  the  hands  of  bona  fide  holders,  we  have  many 
authorities  holding  that  where  the  corporation  pays  the  interest 
upon  its  bonds  for  a  series  of  years,  or  the  principal  of  some  of 
them,  it  will  thereafter  be  estopped  to  deny  their  validity,513  al- 
though decisions  of  the  courts  are  not  uniform  in  this  respect.514 


68  Fed.  935;  Ashley  v.  Presque  Isle 
County  Sup'rs,  60  Fed.  55;  Shaw  v. 
Independent  School  Dist.  of  River- 
side, 62  Fed.  911;  Brown  v.  Ingalls 
Tp.,  81  Fed.  485;  Barber  County 
Com'rs  v.  Society  for  Savings  (C.  C. 
A.)  101  Fed.  767;  Union  Bank  of 
Richmond  v.  Oxford  Com'rs,  90  Fed. 
7;  Johnson  v.  Stark  County,  24  111. 
75;  City  of  Coolidge  v.  General  Hos- 
pital Soc.,  9  Kan.  App.  891,  58  Pac. 
562;  Town  of  Lexington  v.  Union 
Nat.  Bank,  75  Miss.  1,  22  So.  291; 
State  v.  Wilkinson,  20  Neb.  610,  31 
N.  W.  376;  State  v.  Dakota  County, 
22  Neb.  448,  35  N.  W.  225;  Hills  v. 
Peekskill  Sav.  Bank,  101  N.  Y.  490. 
The  same  rule  also  applies  to  the  re- 
issue of  bonds  which,  it  has  been 
held  by  the  courts,  is  a  waiver  of 
defects  in  the  old  bonds.  See  Coun- 
ty of  Moultrie  v.  Rockingham  Ten- 
Cent  Sav.  Bank,  92  U.  S.  631;  Marcy 
v.  Oswego  Tp.,  92  U.  S.  637;  Doug- 
las County  Com'rs  v.  Bolles,  94  U.  S. 
104;  Warren  County  v.  Marcy,  97  U. 
S.  96;  Jasper  County  v.  Ballou,  103 
U.  S.  745;  Town  of  Aroma  v.  Au- 
ditor of  State,  15  Fed.  843;  Cowdrey 
v.  Town  of  Caneadea,  16  Fed.  532; 
Rich  v.  Town  of  Mentz,  18  Fed.  52; 
Chandler  v.  Town  of  Attica,  18  Fed. 
299;  Second  Ward  Sav.  Bank  v.  City 
of  Huron,  80  Fed.  660,  affirmed  in  86 
Fed.  272,  49  L.  R.  A.  534,  and  Town 


of  Solon  v.  Williamsburgh  Sav. 
Bank,  114  N.  Y.  122. 

sis  Marshall  County  Sup'rs  v. 
Schenck,  72  U.  S.  (5  Wall.)  772; 
Kirkbride  v.  Lafayette  County,  108 
U.  S.  208;  Atchison  Board  of  Educa- 
tion v.  De  Kay,  148  U.  S.  591;  Lu- 
ling  v.  City  of  Racine,  1  Biss.  314, 
Fed.  Gas.  No.  8,603;  Second  Ward 
Sav.  Bank  v.  City  of  Huron,  80  Fed. 
660;  Dudley  v.  Lake  County  Com'rs 
(C.  C.  A.)  80  Fed.  672;  Heed  v.  Cow- 
ley  County  Com'rs,  82  Fed.  716; 
Washington  County  v.  Williams,  111 
Fed.  801;  Town  of  Keithsburg  v. 
Frick,  34  111.  405;  People  v.  Cline, 
63  111.  394;  Leavenworth,  L.  &  G. 
R.  Co.  v.  Douglas  County  Com'rs,  18 
Kan.  170;  Brown  v.  Milliken,  42 
Kan.  769;  Town  of  Eminence  v. 
Grasser's  Ex'r,  81  Ky.  52;  Town  of 
Lexington  v.  Union  Nat.  Bank,  75 
Miss.  1,  22  So.  291;  Calhoun  v.  Mil- 
lard,  121  N.  Y.  69,  8  L.  R.  A.  248; 
Town  of  Cherry  Creek  v.  Becker, 
123  N.  Y.  161;  State  v.  Van  Home,  7 
Ohio  St.  331;  Trustees  of  Goshen 
Tp.  v.  Springfield,  Mt.  V.  &  P.  R. 
Co.,  12  Ohio  St.  624;  Brown  v.  Bon 
Homme  County,  1  S.  D.  216,  46  N. 
W.  173;  Nelson  v.  Haywood  Coun- 
ty, 87  Tenn.  781,  4  L.  R.  A.  648; 
Nolan  County  v.  State,  83  Tex.  182. 

si*  Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 


§  209 


ISSUANCE    OF    SECURITIES. 


477 


§  209.    The  doctrine  of  recitals. 

The  principle  of  estoppel  also  applies  to  recitals  in  honds, 
which  are  statements  of  the  constitutional  or  legislative  author- 
ity for  their  issue  and  the  performance  or  compliance  with  all  of 
the  conditions  required  by  such  authority  necessary  to  be  done 
or  performed  as  precedent  to  a  valid  issue.518  The  doctrine  as 
applied  to  recitals  is  substantially  this,  that  where  legislative 
authority  has  been  given  a  public  corporation  or  its  officials  the 
power  to  issue  bonds  upon  the  performance  of  some  precedent 
condition,616  such  as  a  particular  manner  of  holding  an  election 


665;' Ashuelot  Nat.  Bank  v.  School 
Dist.  No.  7,  41  Fed.  514;  Brown  v. 
Ingalls  Tp.,  81  Fed.  485;  Oxford 
Com'rs  v.  Union  Bank  of  Richmond 
(C.  C.  A.)  96  Fed.  293;  Clarke  v. 
Town  of  Northampton,  105  Fed.  312, 
58  L.  R.  A.  900;  Sherrard  v.  Lafay- 
ette County,  3  Dill.  236,  Fed.  Cas. 
No.  12,771;  Stebbins  v.  Perry  Coun- 
ty, 167  111.  567;  Bogart  v.  La'motte 
Tp.,  79  Mich.  294;  Buncombe  County 
Com'rs  v.  Payne,  123  N.  C.  432; 
Glenn  v.  Wray,  126  N.  C.  730,  citing 
Williams  v.  Clouse,  91  N.  C.  327; 
Tyler  v.  Capehart,  125  N.  C.  64; 
Claybrook  v.  Rockingham  County 
Com'rs,  117  N.  C.  456;  Union  Bank 
of  Richmond  v.  Oxford  Com'rs,  119 
N.  C.  214,  34  L.  R.  A.  487,  and  Pied- 
mont Wagon  Co.  v.  Byrd,  119  N.  C. 
460. 

Noel  Young  Bond  &  Stock  Co.  v. 
Mitchell  County,  21  Tex.  Civ.  App. 
638. 

sis  Hainer,  Mun.  Secur.  §  372,  par. 
3;  and  cases  cited. 

sis  County  of  Moultrie  v.  Rock- 
ingham Ten-Cent  Sav.  Bank,  92  U.  S. 
631;  County  of  Henry  v.  Nicolay,  95 
U.  S.  619;  Pompton  Tp.  v.  Cooper 
Union,  101  U.  S.  196;  Clay  County  v. 
Society  for  Savings,  104  U.  S.  579; 
Anderson  County  Com'rs  v.  Beal, 
113  U.  S.  227;  Marshall  v.  Town  of 


Elgin,  3  McCrary,  35,  8  Fed.  783. 
See,  however,  the  case  of  Mercer 
County  v.  Provident  Life  &  Trust 
Co.  (C.  C.  A.)  72  Fed.  623;  Moulton 
v.  City  of  Evansville,  25  Fed.  382; 
Kimball  v.  Town  of  Lakeland,  41 
Fed.  289,  10  L.  R.  A.  500;  Kingman 
County  Com'rs  v.  Cornell  University 
(C.  C.  A.)  57  Fed.  149;  National 
Life  Ins.  Co.  v.  Board  of  Education 
of  Huron,  62  Fed.  778.  The  court 
in  its  opinion  by  Judge  Sanborn 
say: 

"Corporations  are  as  strongly 
bound  to  an  adherence  to  truth  in 
their  dealings  with  mankind  as  are 
individuals  and  they  cannot  by  their 
representations  or  silence  induce 
others  to  part  with  their  money  or 
property  and  then  repudiate  the  ob- 
ligations for  which  the  money  was 
expended  and  which  their  state- 
ments represented  to  be  valid. 
*  *  *  It  is  a  general  and  salu- 
tary principle  of  the  law  that  one 
who,  by  his  acts  or  representations, 
or  by  his  silence  when  he  ought  to 
speak  out,  intentionally  or  through 
culpable  negligence,  induces  another 
to  believe  certain  facts  to  exist,  and 
the  latter  rightfully  acts  on  such 
belief,  so  that  he  will  be  prejudiced 
if  the  former  is  permitted  to  deny 
their  existence,  is  conclusively  es- 


478 


POWERS. 


§  209 


or  the  existence  of  some  fact,517  and  where  it  may  be  gathered 
from  the  legislative  enactment  that  certain  officials  of  the  cor- 
poration are  invested  with  the  power  to  decide  whether  the  con- 
ditions precedent  have  been  complied  with  or  such  facts  ex- 
isted,518 their  recital  or  statement  in  the  bonds  issued  by  them 


topped  to  interpose  such  denial.  No 
reason  occurs  to  us  why  a  munici- 
pal t-'ly  that  has  induced  others  to 
act  to  their  prejudice  by  its  certifi- 
cate that  it  has  performed  an  act 
that  the  laws  intrusted  to  it  to  per- 
form should  be  excepted  from  this 
rule,  and  permitted  to  deny  its  cer- 
tificate, to  the  prejudice  of  those  it 
has  deceived,  simply  because  the 
performance  of  the  act  was  required 
by  the  constitution.  This  view  is  not 
novel." 

017  Wilson  v.  Salamanca  Tp.,  99  U. 
S.  499;  Town  of  Scipio  v.  Wright, 
101  U.  S.  665;  Bernards  Tp.  v.  Mor- 
rison, 133  U.  S.  523;  City  of  South 
St.  Paul  v.  Lamprecht  Bros.  Co.  (C. 
C.  A.)  88  Fed.  449;  Speer  v.  Kear- 
ney County  Com'rs,  88  Fed.  749;  Mil- 
ler v.  Ferris  Irr.  Dist,  99  Fed.  143; 
Stanley  County  Com'rs  v.  Coler  (C. 
C.  A.)  113  Fed.  705,  reversing  on  re- 
hearing the  judgment  in  (C.  C.  A.) 
96  Fed.  284,  and  affirming  89  Fed. 
257;  Coler  v.  Santa  Fe  County 
Com'rs,  6  N.  M.  88,  27  Pac.  619. 

BIS  Humboldt  Tp.  v.  Long,  92  U.  S. 
642;  Warren  County  v.  Marcy,  97  U. 
S.  96.  "We  have  substantially  held 
thai  if  a  municipal  body  has  lawful 
power  to  issue  bonds  or  other  nego- 
tiable securities,  dependent  only 
upon  the  adoption  of  certain  pre- 
liminary proceedings,  such  as  a  pop- 
ular election  of  the  constituent  body, 
the  holder  in  good  faith  has  a  right 
to  assume  that  such  preliminary  pro- 
ceedings have  taken  place,  if  the 
fact  be  certified  on  the  face  of  the 


bonds  themselves,  by  the  authori- 
ties whose  primary  duty  it  is  to  as- 
certain it."  Citing  Lynde  v.  Win- 
nebago  County,  83  U.  S.  (16  Wall.) 
6;  Town  of  Coloma  v.  Eaves,  92  U. 
S.  484;  Douglas  County  Com'rs  v. 
Bolles,  94  U.  S.  104,  and  Johnson 
County  Com'rs  v.  January,  94  U.  S. 
202. 

Livingston  County  v.  First  Nat. 
Bank  of  Portsmouth,  128  U.  S.  102, 
National  Bank  of  Commerce  v.  Town 
of  Granada  (C.C.  A.)  54  Fed.  100.  Re- 
citals in  a  bond  by  officers  in  regard  to 
matters  concerning  which  they  have 
no  official  duty  do  not  estop  the  mu- 
nicipality from  disputing  the  truth 
of  such  recitals.  Mercer  County  v. 
Provident  Life  &  Trust  Co.  (C.  C. 
A.)  72  Fed.  623;  Heed  v.  Cowley 
County  Com'rs,  82  Fed.  716;  Chilton 
v.  Town  of  Gratton,  82  Fed.  873, 
affirmed  (C.  C.  A.)  97  Fed.  145; 
Seward  County  Com'rs  v.  Aetna  Life 
Ins.  Co.,  90  Fed.  222;  Geer  v.  School 
Dist.  No.  11  (C.  C.  A.)  97  Fed.  732; 
Brattleboro  Sav.  Bank  v.  Trustees 
of  Hardy  Tp.,  98  Fed.  524;  Rondot 
v.  Rogers  Tp.  (C.  C.  A.)  99  Fed. 
202,  citing  among  other  cases, 
Marshall  County  Sup'rs  v.  Schenck, 
72  U.  S.  (5  Wall.)  772;  State  v.  Van 
Home,  7  Ohio  St.  327;  State  v. 
Trustees  of  Union  Tp.,  8  Ohio  St. 
394;  and  State  v.  Trustees  of  Goshen 
Tp.,  14  Ohio  St.  569. 

Hughes  County  v.  Livingston,  104 
Fed.  306;  Clapp  v.  Otoe  County,  104 
Fed.  473;  Trustees  of  Hardy  Tp.  v. 
Brattleboro  Sav.  Bank  (C.  C.  A.)  106 


§  209 


ISSUANCE    OF    SECURITIES. 


479 


that  they  have  been  so  complied  with  or  that  certain  conditions 
exist,  is  conclusive  of  the  fact  and  binding  upon  the  corpora- 
tion;519 for,  as  said  by  the  supreme  court  of  the  United  States, 


Fed.  986,  affirming  98  Fed.  524; 
Wilkes  County  Com'rs  v.  Coler  (C. 
C.  A.)  113  Fed.  725. 

Fulton  v.  Town  of  Riverton,  42 
Minn.  395.  "The  second  assignment 
raises  the  question  as  to  whether 
these  bonds  and  coupons  are  valid 
in  the  hands  of  innocent  and  bona 
fide  purchasers  for  value,  as  against 
the  defendant.  *  *  *  The  claim 
is  that  in  respect  to  the  petition,  the 
statute  was  not  complied  with;  that 
the  one  actually  presented,  and  upon 
which  the  town  authorities  proceed- 
ed, did  not  bear  the  requisite  num- 
ber of  signatures;  and  that  this  ir- 
regularity or  defect  vitiates  the 
bonds  and  coupons,  wherever  they 
may  be  found.  It  is  obvious  that 
by  the  legislative  act  referred  to  the 
township  supervisors  were  created  a 
tribunal  to  examine  and  determine 
whether  or  not  the  requisite  two- 
thirds  in  number  of  the  legal  voters 
had  affixed  their  signatures  to  the 
petition.  It  was  their  duty  to  ascer- 
tain and  decide  as  to  this  condition 
precedent  to  a  proper  exercise  of 
their  authority  to  issue  the  bonds. 
*  *  *  The  board  of  supervisors 
did  decide  this  question  and  there- 
upon issued  the  bonds.  In  each 
was  a  statement  that  it  was  issued 
in  pursuance  of  the  special  act  be- 
fore cited,  coupled  with  a  recital  and 
certificate  that  'all  acts,  conditions 
and  things  required  to  be  done  pre- 
cedent to  and  in  the  issuing  of  said 
bonds  have  been  properly  done,  hap- 
pened and  performed  in  regular  and 
due  form  as  required  by  law.'  This 
recital  and  certificate  was  a  declara- 
tion of  the  decision  made  by  a  body 


or  tribunal  invested  with  power  to 
pass  upon  the  existence  of  the  facts 
therein  stated,  and  was  conclusive 
in  a  suit  brought  against  the  town- 
ship by  a  bona  fide  holder  of  the 
bonds." 

Deming  v.  Inhabitants  of  Houlton, 
64  Me.  254;  State  v.  Board  of  Edu- ' 
cation  of  Perrysburg,  27  Ohio  St. 
96.  In  National  Life  Ins.  Co.  v. 
Board  of  Education  of  Huron,  62 
Fed.  778,  the  court  very  tersely  and 
clearly  states  the  rule  obtaining  in 
the  Federal  courts  on  the  doctrine 
of  recitals.  They  say:  "Where  the 
municipal  body  has  lawful  authority 
to  issue  bonds  or  negotiable  securi- 
ties, dependent  only  upon  the  adop- 
tion of  certain  preliminary  proceed- 
ings, and  the  adoption  of  those  pre- 
liminary proceedings  is  certified  on 
the  face  of  the  bonds  by  the  body  to 
which  the  law  intrusts  the  power, 
and  upon  which  it  imposes  the  duty, 
to  ascertain,  determine,  and  certify 
this  fact  before  or  at  the  time  of 
issuing  the  bonds,  such  a  certificate 
will  estop  the  municipality,  as 
against  a  bona  fide  purchaser  of  the 
bonds,  from  proving  its  falsity,  to 
defeat  them."  See  cases  cited. 

sis  Knox  Coonty  Com'rs  v.  Aspin- 
wall,  21  How  .  S.)  539;  Lynde  v. 
Winnebago  County,  83  U.  S.  (16 
Wall.)  6;  Town  of  Venice  v.  Mur- 
dock,  92  U.  S.  494;  Marcy  v.  Oswego 
Tp.,  92  U.  S.  637;  City  of  Menasha 
v.  Hazard,  102  U.  S.  81;  Harter  Tp. 
v.  Kernochan,  103  U.  S.  562.  The 
court  after  speaking  of  the  bond  re- 
citals and  the  conditions  precedent 
say:  "In  view  of  these  facts,  it  is 
difficult  to  perceive  upon  what  just 


480 


POWERS. 


§  209 


ground  the  township  can  escape  lia- 
bility. In  the  first  place,  the  bonds 
were  issued  in  pursuance  of  a  pop- 
ular vote  in  favor  of  a  donation  to 
be  met  by  a  special  tax,  and  also  of 
a  vote,  at  a  subsequent  special  elec- 
tion in  favor  of  an  issue  of  bonds 
in  payment  of  that  donation.  In  the 
next  place  and  as  conclusive  against 
the  township,  the  recitals  in  the 
bonds  import  a  compliance  with  all 
of  the  provisions  of  the  acts  of  as- 
sembly under  which  they  were  is- 
sued. It  is  true  that  the  bonds  do 
not,  in  express  words,  refer  to  the 
special  election  of  May  20,  1870;  but 
since  the  amendatory  act  authorized 
the  township,  upon  a  vote  at  a  reg- 
ular or  special  town  meeting  or  elec- 
tion, to  issue  bonds  in  payment  of 
the  donation  previously  voted,  the 
recital  in  them  fairly  imports  that 
such  an  election  was,  in  fact,  held 
before  they  were  issued."  American 
Life  Ins.  Co.  v.  Town  of  Bruce,  105 
U.  S.  328;  Town  of  Pana  v.  Bowler, 
107  U.  S.  529;  Inhabitants  of  New 
Providence  v.  Halsey,  117  U.  S.  336; 
Chaffee  County  Com'rs  v.  Potter,  142 
U.  S.  355.  As  against  a  bona  fide 
holder,  the  maker  of  bonds  which 
in  themselves  afford  no  data  by 
which  the  total  of  the  amount  could 
be  determined  and  which  contain 
recitals  that  all  the  requirements  of 
the  act  authorizing  their  issue  have 
been  fully  complied  with  and  that 
the  whole  amount  of  the  issue  did 
not  exceed  the  limit  of  the  indebt- 
edness as  prescribed  by  the  consti- 
tution, is  estopped  by  the  recitals 
from  questioning  their  validity  on 
the  ground  that  the  percentage  of 
indebtedness  fixed  by  the  constitu- 
tion was  exceeded,  distinguishing 
Dixon  County  v.  Field,  111  U.  S.  83. 
The  court  in  part  say:  "We  held  in 
that  case  (Lake  County  v.  Graham, 


130  U.  S.  674),  that  the  county  was 
not  estopped  from  pleading  the  con- 
stitutional limitation,  because  there 
was  no  recital  in  the  bonds  in  re- 
gard to  it  and  because,  also,  the 
bonds  showing  upon  their  face  that 
they  were  issued  to  the  amount  of 
$500,000.  The  purchaser  having 
that  data  before  him  was  bound  to 
ascertain  from  the  records  the  total 
assessed  valuation  of  the  taxable 
property  of  the  county,  and  'deter- 
mine for  himself,  by  a  simple  arith- 
metical calculation,  whether  the  is- 
sue was  in  harmony  with  the  con- 
stitution; and  that  the  bonds,  hav- 
?  been  issued  in  violation  of  that 
provision  of  the  constitution,  were 
not  valid  obligations  of  the  county. 
Our  decision  was  based  largely  upon 
the  ruling  of  this  court  in  Dixon 
County  v.  Field,  111  U.  S.  83.  To  the 
views  expressed  in  that  case  we 
still  adhere;  and  the  only  question 
for  us  now  to  consider,  therefore,  is: 
Do  the  additional  recitals  in  these 
bonds,  above  set  out,  and  the  absence 
from  their  face  of  anything  show- 
ing the  total  number  issued  of  each 
series,  and  the  total  amount  in  all, 
estop  the  county  from  pleading  the 
constitutional  limitation?  In  our 
opinion  these  two  features  are  of 
vital  importance  in  distinguishing 
this  case  from  Lake  County  v.  Gra- 
ham and  Dixon  County  v.  Field,  and 
are  sufficient  to  operate  as  an  estop- 
pel against  the  county.  Of  course, 
the  purchaser  of  bonds  in  open  mar- 
ket was  bound  to  take  notice  of  the 
constitutional  limitation  on  the 
county  with  respect  to  indebtedness 
which  it  might  incur.  But  when, 
upon  the  face  of  the  bonds  there  was 
an  express  recital  that  that  limita- 
tion had  not  been  passed,  and  the 
bonds  themselves  did  not  show  that 
it  had,  he  was  bound  to  look  no 


§  209 


ISSUANCE    OF    SECURITIES. 


481 


further.  An  examination  of  any  par- 
ticular bond  would  not  disclose,  as  it 
would  in  the  Lake  County  Case,  and 
in  Dixon  County  v.  Field,  that,  as 
a  matter  of  fact,  the  constitutional 
limitation  had  been  exceeded,  in  the 
issue  of  the  series  of  bonds.  The 
purchaser  might  even  know,  indeed 
it  may  be  admitted  that  he  would  be 
required  to  know  the  assessed  val- 
uation of  the  taxable  property  of  the 
county,  and  yet  he  could  not  ascer- 
tain by  reference  to  one  of  the  bonds 
and  the  assessment  roll,  whether 
the  county  had  exceeded  its  power, 
under  the  constitution,  in  the  prem- 
ises. True,  if  a  purchaser  had  seen 
the  whole  issue  of  each  series  of 
bonds  and  then  compared  it  with  the 
assessment  roll,  he  might  have  been 
able  to  discover  whether  the  issue 
exceeded  the  amount  of  indebtedness 
limited  by  the  constitution.  But 
that  is  not  the  test  to  apply  to  a 
transaction  of  this  nature.  It  is  not 
supposed  that  any  one  person  would 
purchase  all  of  the  bonds  at  one 
time,  as  that  is  not  the  usual  course 
of  business  of  this  kind.  The  test 
is — What  does  each  individual  bond 
disclose?  If  the  face  of  one  of  the 
bonds  had  disclosed  that,  as  a  mat- 
ter of  fact,  the  recital  in  it,  with 
respect  to  the  constitutional  limita- 
tion, was  false,  of  course  the  county 
would  not  be  bound  by  that  recital, 
and  would  not  be  estopped  from 
pleading  the  invalidity  of  the  bonds 
in  this  particular.  Such  was  the 
case  in  Lake  County  v.  Graham  and 
Dixon  County  v.  Field.  But  that 
is  not  this  case.  Here,  by  virtue  of 
the  statute  under  which  the  bonds 
were  issued  the  County  Commission- 
ers were  to  determine  the  amount  to 
be  issued  which  was  not  to  exceed 
the  total  amount  of  the  indebted- 
ness as  the  date  of  the  first  publi- 

Abb.  Corp. — 31. 


cation  of  the  notice  requesting  the 
holders  of  county  warrants  to  ex- 
change their  warrants  for  bonds,  at 
par.  The  statute,  in  terms,  gave  to 
the  commissioners  the  determination 
of  a  fact,  that  is,  whether  the  issue 
of  bonds  was  in  accordance  with  the 
constitution  of  the  state  and  the 
statute  under  which  they  were  is- 
sued, and  required  them  to  spread  a 
certificate  of  that  determination 
upon  the  records  of  the  county.  The 
recital  in  the  bond  to  the  effect  that 
such  determination  has  been  made, 
and  that  the  constitutional  limita- 
tion had  not  been  exceeded  in  the 
issue  of  the  bonds,  taken  in  connec- 
tion with  the  fact  that  the  bonds 
themselves  did  not  show  such  recital 
to  be  untrue,  under  the  law,  estops 
the  county  from  saying  that  it  is 
untrue." 

Town  of  Andes  v.  Ely,  158  U.  S. 
312;  City  of  Evansviile  v.  Dennett, 
161  U.  S.  434;  Gunnison  County 
Com'rs  v.  Rollins,  173  U.  S.  255,  af- 
firming 80  Fed.  692.  Where  the 
bonds  do  not  on  their  face  show  th» 
amount  of  the  issue,  the  recital  that 
the  total  issue  does  not  exceed  the 
constitutional  limitation  of  indebted- 
ness estops  the  county  from  disput- 
ing its  truth  as  against  an  innocent 
purchaser. 

Huidekoper  v.  Buchanan  County, 
3  Dill.  175,  Fed.  Cas.  No.  6,847; 
Westerman  v.  Cape  Girardeau  Coun- 
ty, 5  Dill.  112,  Fed.  Cas.  No.  17,432; 
Washington  Tp.  v.  Coler  (C.  C.  A.) 
51  Fed.  362  (as  to  the  insufficiency 
of  a  recital);  Deland  v.  Platte  Coun- 
ty, 54  Fed.  823;  City  of  Columbus 
v.  Dennison  (C.  C.  A.)  69  Fed.  58; 
Dudley  v.  Lake  County  Com'rs  (C. 
C.  A.)  80  Fed.  672;  Chilton  v.  Town 
of  Gratton,  82  Fed.  873,  affirmed  97 
Fed.  145.  Bonds  in  excess  of  an 
authorized  issue  will  be  held  valid 


482 


TOWERS. 


§  209 


"The  recital  is  itself  a  decision  of  the  fact  by  the  appointed  tri- 
bunal. '  '52°  Such  a  recital  or  ' '  decision, "  as  it  is  termed,  is  conclu- 
sive upon  the  corporation  as  to  bonds  in  the  hands  of  a  bona  fide 
holder  who,  it  is  held,  as  to1  such  matters,  is  not  bound  to  look 
for  further  evidence  of  a  compliance  with  the  conditions  of  is- 


in  the  hands  of  bona  fide  holders 
where  the  limit  of  the  issue  can  only 
be  ascertained  from  records  or  data 
which  are  peculiarly  within  the  con- 
trol and  knowledge  of  the  public 
officials  issuing  them  or  where  they 
have  better  access,  to  the  necessary 
information,  than  strangers. 

Brown  v.  Ingalls  Tp.,  86  Fed.  261; 
Township  of  96  v.  Polsom,  87  Fed. 
304;  Lake  County  Com'rs  v.  Sutliff 
(C.  C.  A.)  97  Fed.  270,  49  L.  R.  A. 
127;  Wesson  v.  Town  of  Mt.  Vernon 
(C.  C.  A.)  98  Fed.  804,  citing,  among 
other  cases,  Town  of  New  Orleans  v. 
Platt,  99  U.  S.  676;  Town  of  Oregon 
v.  Jennings,  119  U.  S.  74;  Sherman 
County  v.  Simons,  109  U.  S.  735,  fol- 
lowing Zabriskie  v.  Cleveland,  C.  & 
C.  R.  Co.,  23  How.  (U.  S.)  381;  and 
Risley  Y.  Village  of  Howell  (C.  C. 
A.)  64  Fed.  453. 

Pickens  Tp.  v.  Post  (C.  C.  A.)  99 
Fed.  659;  Cowley  County  Com'rs  v. 
Heed  (C.  C.  A.)  101  Fed.  768;  Inde- 
pendent School  Dist.  of  Sioux  City 
v.  Rew,  111  Fed.  1,  55  L.  R.  A.  364. 
The  proviso  is  made  in  this  case  that 
the  recitals  will  not  operate  as  an 
estoppel  if  the  act  under  which  the 
bonds  are  issued  prescribes  some 
public  record  as  the  test  of  the  ex- 
istence of  some  of  the  acts  or  con- 
ditions contained  in  the  bonds. 

State  v.  City  of  Montgomery,  74 
Ala.  226;  Chicago,  K.  &  W.  R.  Co. 
v.  Chase  County  Com'rs,  49  Kan. 
899,  30  Pac.  456,  following  Hutchin- 
Bon  &  S.  R.  Co.  r.  Kingman  County 
Com'rs,  48  Kan.  70,  28  Pac.  1078,  15 
L.  R.  A.  401 ;  State  v.  Wichita  Coun- 


ty Com'rs,  62  Kan.  494,  64  Pac.  45; 
City  of  South  Hutchinson  v.  Bar- 
num,  63  Kan.  872,  66  Pac.  1035; 
Gibbs  v.  School  Dist.  No.  10,  88 
Mich.  334,  50  N.  W.  294;  Spitzer  v. 
Village  of  Blanchard,  82  Mich.  234; 
St.  Paul  Gaslight  Co.  v.  Village  of 
Sandstone,  73  Minn.  225;  Lane  v. 
Schomp,  20  N.  J.  Eq.  (5  C.  E.  Green) 
82;  Belo  v.  Forsythe  County  Com'rs, 
76  N.  C.  489;  Coler  v.  Dwight  School 
Tp.,  3  N.  D.  249,  55  N.  W.  587,  28 
L.  R.  A.  649;  State  v.  Board  of  Edu- 
cation of  Perrysburg,  27  Ohio  St.  96; 
Kerr.  v.  City  of  Corry,  105  Pa.  282; 
Coler  v.  Rhoda  School  Tp.,  6  S.  D. 
640,  63  N.  W.  158;  Wilson  v.  Board 
of  Education  of  Huron,  12  S.  D.  535, 
81  N.  W.  952;  City  of  San  Antonio 
v.  Lane,  32  Tex.  405;  Cumberland 
County  Sup'rs  v.  Randolph,  89  Va. 
614,  16  S.  E.  722. 

620  Town  of  Coloma  v.  Eaves,  92 
U.  S.  484.  One  of  the  leading  cases 
on  this  point. 

The  court  say  in  part:  "Apart 
from  and  beyond  the  reasonable  pre- 
sumption that  the  officers  of  the 
law,  the  township  officers,  dis- 
charged their  duty,  the  matter  has 
passed  into  judgment.  The  persons 
appointed  to  decide  whether  the 
necessary  prerequisites  to  their  is- 
sue had  been  completed  have  decid- 
ed and  certified  their  decision.  They 
have  declared  the  contingency  to 
have  happened  on  the  occurrence  of 
which  the  authority  to  issue  the 
bonds  was  complete.  Their  recitals 
are  such  a  decision;  and  beyond 


§  209 


ISSUANCE    OF    SECURITIES. 


483 


sue.521  The  recitals  or  statements  work  no  estoppel,  however, 
except  when  made  by  those  officials  or  that  tribunal  either  espe- 
cially designated  or  having  the  general  power  to  perform  such 
acts.  If  not  made  by  those  having  authority  to  decide  and  as- 
sert the  facts  which  constitute  the  conditions  precedent  to  a  legal 


those  a  bona  fide  purchaser  is  not 
bound  to  look  for  evidence  of  the 
existence  of  things  in  pais.  He  is 
bound  to  know  the  law  conferring 
upon  the  municipality  power  to  give 
the  bonds  on  the  happening  of  a 
contingency;  but  whether  that  has 
happened  or  not  is  a  question  of 
fact,  the  decision  of  which  is  by  the 
law  confided  to  others — to  those 
most  competent  to  decide  it — and 
which  the  purchaser  is,  in  general, 
in  no  condition  to  decide  for  him- 
self." 

521  Pendleton  County  v.  Amy,  80 
U.  S.  (13  Wall.)  297;  Marcy  v.  Os- 
wego  Tp.,  92  U.  S.  637;  Leavenworth 
County  v.  Barnes,  94  U.  S.  70;  Doug- 
las County  Com'rs  v.  Bolles,  94  U.  S. 
104;  Johnson  County  Com'rs  v.  Jan- 
uary, 94  U.  S.  202.  "The  bonds  re- 
cite that  they  were  issued  in  con- 
formity to  law  and  in  pursuance  of 
the  election  held  on  the  6th  of 
April,  1869.  It  is  true  they  refer 
to  the  wrong  statute  but  falsa  de- 
monstratio  non  nocet.  The  bad  here 
does  not  hurt  the  good.  The  act 
of  the  commissioners  was  the  act 
of  the  county,  and  the  county  is 
conclusively  bound  by  what  they 
have  done.  As  between  the  county 
and  a  bona  fide  holder  no  question 
involving  the  infirmity  of  the  secur- 
ities can  be  raised.  The  principle 
of  estoppel  applies  and  it  precludes 
the  obligor  from  interposing  such  a 
defense." 

Henry  County  v.  Nicolay,  95  U.  8. 
619;  Moultrie  County  v.  Fairfield, 


105  U.  S.  370;  Sherman  County  v. 
Simons,  109  U.  S.  735;  Wood  v.  Al- 
legheny County,  3  Wall.  Jr.  267,  Fed. 
Cas.  No.  17,939;  Miller  v.  Town  of 
Berlin,  13  Blatchf.  245,  Fed.  Cas.  No. 
9,562;  Nicolay  v.  St.  Clair  County,  3 
Dill.  163.  Fed.  Cas.  No.  10,257;  Pol- 
lard v.  City  of  Pleasant  Hill,  3  Dill. 
195,  Fed.  Cas.  No.  11,253;  Mygatt  v. 
City  of  Green  Bay,  1  Biss.  292,  Fed. 
Cas.  No.  9,998;  Davis  v.  City  of  Ken- 
dallville,  5  Biss.  280,  Fed.  Cas.  No. 
3,b38;  Lewis  v.  Comanche  County,  35 
Fed.  343;  Mathis  v.  Runnels  County 
(C.  C.  A.)  66  Fed.  494;  Rathbone  v. 
Kiowa  County  Com'rs  (C.  C.  A.)  83 
Fed.  125;  City  of  Huron  v.  Second 
Ward  Sav.  Bank,  86  Fed.  272,  49  L. 
R.  A.  534;  Waite  v.  City  of  Santa 
Cruz,  89  Fed.  619;  Haskell  County 
Com'rs  v.  National  Life  Ins.  Co.  (C. 
C.  A.)  90  Fed.  228;  Independent 
School  Dist.  of  Sioux  City  v.  Rew, 
111  Fed.  1,  55  L.  R.  A.  364;  City  of 
Kearney  v.  Woodruff  (C.  C.  A.)  115 
Fed.  90;  E.  M.  Derby  &  Co.  v.  City 
of  Modesto,  104  Cal.  515;  Danielly 
v.  Cabaniss,  52  Ga.  211;  State  v. 
Saline  County  Ct,  48  Mo.  390:  Clay- 
brook  v.  Rockingham  County  Com'rs, 
117  N.  C.  456;  Flagg  v.  School  Dist. 
No.  70,  4  N.  D.  30,  58  N.  W.  499,  25 
L.  R.  A.  363;  State  v.  Fayette  Coun- 
ty Com'rs,  37  Ohio  St.  526;  Reis  v. 
State,  133  Cal.  593,  65  Pac.  1102,  re- 
versing 59  Pac.  298;  Nelson  v.  Hay- 
wood  County,  87  Tenn.  781,  4  L.  R. 
A.  648;  Mitchell  County  v.  City  Nat. 
Bank,  15  Tex.  Civ.  App.  172,  39  S. 
W.  628. 


484 


POWERS. 


§  209 


issue  of  bonds,  the  recitals  will  not  be  accepted  as  a  substitute 
for  proof.522 

The  decisions  of  state  courts  upon  questions  of  commercial  law 
not  controlling.  In  a  recent  case523  in  the  circuit  court  of  ap- 
peals for  the  eighth  circuit,  Judge  Sanborn  for  the  court  said 
upon  this  question : 

"But  the  question  that  has  been  under  consideration  here  is 
not  one  of  the  construction  of  the  constitution  or  of  the  statutes 
of  the  state  of  Iowa.  It  simply  involves  the  construction  and 
effect  of  recitals  in  negotiable  instruments.  It  is  a  question  of 
commercial,  and  not  of  constitutional  law,  upon  which  the  deci- 
sions of  the  state  courts  are  not  controlling  in  the  Federal  tribu- 
nals. It  is  not  only  the  privilege,  but  the  duty,  of  the  Federal  courts, 
imposed  upon  them  by  the  constitution  and  statutes  of  the  United 
States,  to  consider  for  themselves,  and  to  form  their  independent 
opinions  and  decisions  upon  questions  of  commercial  or  general 
law  presented  in  cases  in  which  they  have  jurisdiction,  and  it  is 
a  duty  which  they  cannot  justly  renounce  or  disregard.  Juris- 


522  Knox  County  Com'rs  v.  Aspin- 
wall,  21  How.  (U.  S.)  539;  Bissell  v. 
City  of  Jeffersonville,  24  How.  (U. 
S.)  287;  Chisholm  v.  City  of  Mont- 
gomery, 2  Woods,  584,  Fed.  Gas.  No. 
2,686.  "Public  officers  cannot  ac- 
quire authority  by  declaring  that 
they  have  it.  They  cannot  thus  shut 
the  mouth  of  the  public  whom  they 
represent.  The  officers  and  agents 
of  private  corporations,  entrusted 
by  them  with  the  management  of 
their  own  business  and  property, 
may  estop  their  principals,  and  sub- 
ject them  to  the  consequences  of 
their  unauthorized  acts.  But  the 
body  politic  cannot  be  thus  silenced 
by  the  acts  or  declarations  of  its 
agents.  If  it  could  be,  unbounded 
scope  would  be  given  to  the  pecu- 
lations and  frauds  of  public  officers. 
I  hold  it  to  be  a  sound  proposition, 
that  no  municipal  or  political  body 
can  be  estopped  by  the  acts  or  dec- 
larations of  its  offiers  from  denying 


their  authority  to  bind  it."  Town  of 
Coloma  v.  Eaves,  92  U.  S.  484;  War- 
ren County  v.  Marcy,  97  U.  S.  96; 
Bourbon  County  Com'rs  v.  Block,  99 
U.  S.  686;  Dixon  County  v.  Field, 
111  U.  S.  84;  Merchants'  Bank  v. 
Bergen  County,  115  U.  S.  384;  Town 
of  Oregon  v.  Jennings,  119  U.  S.  74; 
Bernards  Tp.  v.  Morrison,  133  U.  S. 
523;  Rich  v.  Mentz  Tp.,  134  U.  S. 
632;  Brown  v.  Bon  Homme  County, 
1  S.  D.  216,  46  N.  W.  173;  Williams 
v.  Town  of  Roberts,  88  111.  11;  City 
of  Vicksburg  v.  Lombard,  51  Miss. 
Ill;  Hudson  v.  Inhabitants  of  Wins- 
low,  35  N.  J.  Law,  437;  Com.  v.  Com- 
mon Councils  of  Pittsburgh,  88  Pa. 
66;  DeVoss  v.  City  of  Richmond,  18 
Grat.  (Va.)  338;  Simonton,  Mun. 
Bonds,  §§  209  et  seq.;  Hainer,  Mun. 
Secur.  §§  435  et  seq. 

523  Independent  School  Dist.  of 
Sioux  City  v.  Rew  (C.  C.  A.)  Ill 
Fed.  1,  55  L.  R.  A.  364. 


§  210 


ISSUANCE    OF    SECURITIES. 


485 


diction  of  such  cases  was  conferred  upon  them  for  the  express 
purpose  of  securing  their  independent  opinions  upon  the  ques- 
tions arising  in  the  litigation  remitted  to  them.  And  a  citizen  of 
the  United  States  who  has  the  right  to  prosecute  his  suit  in  the 
national  courts  has  also  the  right  to  the  opinions  and  decisions 
of  those  courts  upon  every  crucial  question  of  general  or  com- 
mercial law  or  of  right  under  the  constitution  or  statutes  of  the 
nation  which  he  presents."524 

§  210.    Estoppel  not  applying  to  recitals  of  law. 

The  principle  of  estoppel  does  not  apply,  however,  to  recitals 
of  authority,  for  in  this  respect,  it  is  held,  every  purchaser  of 
bonds  acquires  and  holds  them  charged  with  full  notice  of  the 
possession  of  power  in  the  first  instance  on  the  part  of  the  public 
corporation  to  issue  them:  the  question  of  legislative  authority 
in  a  public  corporation  to  issue  negotiable  bonds  cannot  be  con- 
cluded by  mere  recitals,  even  when  the  bonds  have  come  into  the 
hands  of  bona  fide  holders  for  value.525 


B24  Swift  v.  Tyson,  16  Pet.  (U.  S.) 
1;  Carpenter  v.  Providence  &  W.  Ins. 
Co.,  1C  Pet.  (U.  S.)  495;  New  York 
Cent.  R.  Co.  v.  Lockwood,  84  U.  S. 
(17  Wall.)  357;  Brooklyn  City  &  N. 
R.  Co.  v.  National  Bank  of  Republic, 
102  U.  S.  14;  Burgess  v.  Seligman, 
107  U.  S.  20;  Myrick  v.  Michigan 
Cent.  R.  Co.,  107  U.  S.  102;  Smith 
v.  Alabama,  124  U.  S.  465;  Bucher  v. 
Cheshire  R.  Co.,  125  U.  S.  555;  Liv- 
erpool &  G.  W.  Steam  Co.  v.  Phenix 
lr.&.  Co.,  129  U.  S.  397;  Hartford 
<7ire  Ins.  Co.  v.  Chicago,  M.  &  St.  P. 
R.  Co.  (C.  C.  A.)  70  Fed.  201,  30  L. 
R.  A.  193;  Speer  v.  Kearney  County 
Com'rs  (C.  C.  A.)  88  Fed.  749. 

525  Town  of  South  Ottawa  v.  Per- 
kins, 94  U.  S.  260;  McClure  v.  Ox- 
ford Tp.,  94  U.  S.  429.  Every  pur- 
shaser  of  municipal  bonds  which  re- 
fer to  the  statute  under  which  they 
were  issued  is  bound  to  take  notice 
of  all  its  requirements.  The  court 
say:  "To  be  a  bona  fide  holder  one 


must  be  himself  a  purchaser  for  val- 
ue without  notice  or  the  successor  of 
one  who  was.  Every  man  is  charge- 
able with  notice  of  that  which  the 
law  requires  him  to  know  and  of 
that  which,  after  being  put  upon  in- 
quiry, he  might  have  ascertained  by 
the  exercise  of  reasonable  diligence. 
Every  dealer  in  municipal  bonds 
which  upon  their  face  refer  'to  the 
statute  under  which  they  were  is- 
sued is  bound  to  take  notice  of  the 
statute  and  of  all  its  requirements." 
After  commenting  on  the  statutory 
requirements  and  the  recitals  in  the 
bonds  themselves  the  court  contin- 
ues: "These  bonds,  therefore,  car- 
ried upon  their  face  unmistakable 
evidence  that  the  forms  of  the  law 
under  which  they  purported  to  have 
been  issued  had  not  been  complied 
with  because  thirty  days  had  not 
elapsed  between  the  time  the  law 
took  effect  and  the  date  of  the  elec- 
tion. If  a  purchaser  may  be,  as  he 


486 


POWERS. 


§   211 


§  211.    Distinction  between  power  to  issue  and  irregularity  in 
its  exercise. 

The  doctrine  of  recitals,  as  stated  in  section  208,  although  ap- 
plied frequently,  has  never  been  carried  to  the  extreme  of  holding 


sometimes  is,  protected  by  false  re- 
citals in  municipal  bonds,  the  mu- 
nicipality ought  to  have  the  benefit 
of  those  that  are  true." 

Independent  School  Dist.  of  Steam- 
boat Rock  v.  Stone,  106  U.  S.  183; 
Dixon  County  v.  Field,  111  U.  S.  83; 
Merchants'  Bank  v.  Bergen  County, 
115  U.  S.  384;  Katzenberger  v.  City 
of  Aberdeen,  121  U.  S.  172;  Sutliff 
v.  Lake  County  Com'rs,  147  U.  S. 
230,  following  Dixon  County  v. 
Field,  111  U.  S.  83;  Lake  County  v. 
Graham,  130  U.  S.  674,  and  distin- 
guishing Chaffee  County  v.  Potter, 
142  U.  S.  355,  reversing  Lake  County 
Com'rs  v.  Sutliff  (C.  C.  A.)  97  Fed. 
270. 

Citizens'  Sav.  &  Loan  Ass'n  v. 
Perry  County,  156  U.  S.  692;  Kelly 
v.  Town  of  Milan,  21  Fed.  842;  Bates 
v.  Independent  School  Dist.  of  Riv- 
erside, 25  Fed.  192;  Sutliff  v.  Lake 
County,  47  Fed.  106;  National  Bank 
of  Commerce  v.  Town  of  Granada,  48 
Fed.  278;  National  Bank  of  Com- 
merce v.  Town  of  Granada  (C.  C.  A.) 
54  Fed.  100;  Francis  v.  Howard 
County  (C.  C.  A.)  54  Fed.  487,  af- 
firming 50  Fed.  44;  CofBn  v.  Kearney 
County  Com'rs  (C.  C.  A.)  57  Fed. 
137. 

City  of  Cadillac  v.  Woonsocket 
Inst.  for  Savings  (C.  C.  A.)  58  Fed. 
935.  A  recital  that  the  bonds  are 
"refunding  bonds"  issued  to  take  up 
"old  bonds  falling  due"  estops  the 
city  as  against  a  bona  fide  holder 
from  showing  that  the  old  bonds 
were  invalid. 

Barber  County  Com'rs  v.  Society 


for  Savings  (C.  C.  A.)  101  Fed.  767. 
Recitals  in  refunding  bonds  estop 
the  maker  from  setting  up  as  a  de- 
fense fraudulent  indebtedness.  Shaw 
v.  Independent  School  Dist.  of  Riv- 
erside, 62  Fed.  911.  An  estoppel 
arises  from  recitals  in  refunding 
bonds  that  prevents  a  showing  of 
the  illegality  of  the  original  issue. 
Prickett  v.  City  of  Marceline,  65  Fed. 
469;  Quaker  City  Nat.  Bank  v.  No- 
lan County  (C.  C.  A.)  66  Fed.  883, 
affirming  59  Fed.  660;  Rathbone  v. 
Kiowa  County  Com'rs,  73  Fed.  395; 
Manhattan  County  v.  City  of  Iron- 
wood  (C.  C.  A.)  74  Fed.  535,  follow- 
ing McClure  v.  Oxford  Tp.,  94  U.  S. 
429;  Springfield  Safe-Deposit  & 
Trust  Co.  v.  City  of  Attica  (C.  C. 
A.)  85  Fed.  387;  D'Esterre  v.  City 
of  Brooklyn,  90  Fed.  586;  Burlington 
Sav.  Bank  v.  City  of  Clinton,  111 
Fed.  439;  Bissell  v.  City  of  Kanka- 
kee,  64  111.  249;  McPherson  v.  Fos- 
ter Bros.,  43  Iowa,  48;  Com.  of  Vir- 
ginia v.  State,  32  Md.  501;  Heard  v. 
Calhoun  School  Dist.,  45  Mo.  App. 
660;  Wilkes  County  Com'rs  v.  Call, 
123  N.  C.  308,  44  L.  R.  A.  252;  Union 
Bank  of  Richmond  v.  Oxford  Com'rs, 
119  N.  C.  214,  34  L.  R.  A.  487;  Stan- 
ly  County  Com'rs  v.  Snuggs,  121  N. 
C.  394,  39  L.  R.  A.  439;  People's 
Bank  of  St.  Paul  v.  School  Dist.  No. 
52,  3  N.  D.  496,  57  N.  W.  787,  28  L. 
R.  A.  642;  Miller  v.  Hixson,  64  Ohio 
St.  39,  59  N.  E.  749;  Town  of  Kla- 
math  Falls  v.  Sachs,  35  Or.  325,  57 
Pac.  329;  Livingston  v.  School  Dist. 
No.  7,  9  S.  D.  345,  69  N.  W.  15; 
Nolan  County  v.  State,  83  Tex.  182,. 


§   211 


ISSUANCE    OF    SECURITIES. 


487 


that  public  officials  can,  by  their  recitals  or  decisions,  create  a 
power  on  the  part  of  the  public  corporation  to  issue  bonds  where 
none  existed.526  In  a  case  decided  by  the  supreme  court  of  the 
United  States,527  Mr.  Justice  Hunt  said:  "These  bonds  are  securi- 
ties which  pass  from  hand  to  hand  with  the  immunity  given  by  the 
common  law  to  bills  of  exchange  and  promissory  notes.  The 
persons  who  execute  and  deliver  them — the  officers  of  the  county 


17  S.  W.  823;  Ball  v.  Presidio  Coun- 
ty (Tex.  Civ.  App.)  27  S.  W.  702. 
Where  bonds  purchased  were  num- 
bered from  ninety  to  ninety-six  in- 
clusive, this  fact  alone  does  not 
charge  a  purchaser  with  notice  of 
lack  of  power  to  issue;  eighty-six 
bonds  of  $1,000  each  only  being  au- 
thorized, there  being  no  requirement 
in  the  statutes  or  order  that  bonds 
should  be  numbered  from  one  to 
eighty-six  inclusive.  Mitchell  Coun- 
ty v.  City  Nat.  Bank,  91  Tex.  361,  43 
S.  W.  880;  Slifer  v.  Howell's  Adm'r, 
9  W.  Va.  391. 

sae  Town  of  South  Ottawa  v.  Per- 
kins, 94  U.  S.  260.  "Not  only  the 
courts  but  individuals  are  bound  to 
know  the  law,  and  cannot  be  re- 
ceived to  plead  ignorance  of  it.  The 
holder  of  the  bonds  in  question  can 
claim  no  indulgence  on  that  score 
and  can  take  no  advantage  from  the 
allegation  that  he  is  a  bona  fide  pur- 
chaser without  notice.  He  would,  it 
is  true,  be  precluded  from  doing  so 
on  another  ground,  namely,  the  want 
of  any  legislative  authority  in  fact 
in  the  town  to  issue  the  bonds  in 
question.  Want  of  such  authority  is 
a  fatal  objection  to  their  validity  no 
matter  under  what  circumstances 
the  holder  may  have  obtained  them." 

Northern  Bank  of  Toledo  v.  Por- 
ter Tp.  Trustees,  110  U.  S.  608; 
Hedges  v.  Dixon  County,  150  U.  S. 
182;  Daviess  County  v.  Dickinson, 
117  U.  S.  657;  Smith  v.  Town  of 


Ontario,  15  Blatchf.  267,  Fed.  Gas. 
No.  13,085;  Lewis  v.  Comanche  Coun- 
ty Com'rs,  35  Fed.  343;  Travelers' 
Ins.  Co.  v.  Oswego  Tp.,  55  Fed.  361; 
Swan  v.  Arkansas  City,  61  Fed.  478; 
National  Life  Ins.  Co.  v.  Board  of 
Education  of  Huron  (C.  C.  A.)  62 
Fed.  778.  The  court  here  held,  that 
if  the  want  of  power  did  not  appear 
from  the  bonds,  or  the  public  rec- 
ords to  which  the  statutes  under 
which  they  were  issued  referred,  re- 
citals might  constitute  an  estoppel 
in  favor  of  a  bona  fide  purchaser. 

Rathbone  v.  Kiowa  County  Com'rs, 
73  Fed.  395;  Fairfield  v.  Rural  Inde- 
pendent School  Dist,  111  Fed.  453; 
Washington  County  v.  David,  2  Neb1, 
Unoff.  649,  89  N.  W.  737;  Buncombe 
County  Com'rs  v.  Payne,  123  N.  C. 
432;  National  Life  Ins.  Co.  v.  Mead, 
13  S.  D.  37,  82  N.  W.  78,  48  L.  R.  A. 
785,  rehearing  denied,  13  S.  D.  342, 
83  N.  W.  335;  Oswego  County  Sav. 
Bank  v.  Town  of  Genoa,  28  Misc.  71, 
59  N.  Y.  Supp.  829;  Cass  County 
v.  Wilbarger  County,  25  Tex.  Civ. 
App.  52,  60  S.  W.  988.  If  the  law 
under  which  bonds  are  issued  is  un- 
constitutional, a  recital  that  they 
were  "issued  under  and  in  compli- 
ance with  the  constitution  and  laws 
of  the  state,"  affords  no  protection 
to  a  bona  fide  holder.  Peck  v.  City 
of  Hempstead,  27  Tex.  Civ.  App.  80, 
65  S.  W.  653. 

527  Daviess  County  v.  Huidekoper, 
98  U.  S.  98. 


488 


POWERS. 


§  211 


court  in  this  instance — are  the  agents  of  the  municipal  body  au- 
thorizing their  issue  and  not  of  the  persons  who  purchase  or  re- 
ceive them.  If  these  agents  exceed  their  authority  as  to  form, 
manner,  detail  or  circumstance,  if  they  execute  it  in  an  irregular 
manner,  it  is  the  misfortune  of  the  town  or  county  and  not  of 
the  purchaser;  the  loss  must  fall  on  those  whom  they  represent 
and  not  on  those  who  deal  with  them.  There  must  indeed  be 
power  which,  if  formally  and  duly  exercised,  will  bind  the  county 
or  town;  no  bona  fides  can  dispense  with  this  and  no  recital  can 
excuse  it."  The  doctrine  of  recitals,  however,  has  been  carried 
to  the  extent  that  recitals  of  public  officials  that  bonds  were  is- 
sued for  a  proper  and  public  purpose  and  such  as  authorized  are 
conclusive.528 


528  Marshall  County  Sup'rs  v. 
Schenck,  72  U.  S.  (5.  Wall.)  772; 
City  of  Ottawa  v.  First  Nat.  Bank  of 
Portsmouth,  105  U.  S.  342.  "The 
bonds  in  suit  constitute  a  portion 
of  the  issue  of  $60,000  referred  to  in 
Hackett  v.  City  of  Ottawa,  99  U.  S. 
86.  *  *  *  As  in  that  case,  so 
here,  the  bonds  recite  that  they  were 
issued  in  virtue  of  the  power  con- 
ferred by  the  charter  of  the  city 
upon  its  council  *  *  *  to  borrow 
money  on  its  credit  and  to  issue, 
bonds  pledging  its  revenue  for  the 
payment  thereof,  and  also  in  pur- 
suance of  two  ordinances  of  the  city 
council,  one,  passed  June  15,  1869, 
entitled  'An  ordinance  to  provide  for 
a  loan  for  municipal  purposes,' 
*  *  *  Waiving  any  direct  decision 
of  the  question,  much  elaborated  by 
counsel,  as  to  what  *  *  *  is  to 
be  regarded  as  a  municipal  or  corpo- 
rate purpose  for  which  the  city  can 
lawfully  exercise  the  power  of  bor- 
rowing money  and  issuing  bonds, 
we  there  adjudged  the  defense  to  be 
insufficient  for  these  reasons.  The 
city  council  had  power,  the  voters 
consenting,  to  issue  negotiable  se- 
curities for  certain  municipal  pur- 


poses, if  the  purchaser  under  some 
circumstances,  would  have  been 
bound  to  take  notice  of  the  provi- 
sions of  the  ordinances  whose  titles 
were  recited  in  the  bonds,  he  was 
relieved  from  any  responsibility  or 
duty  in  that  regard  by  reason  of  the 
representation,  upon  the  face  of  the 
bonds,  that  the  ordinance  provided 
for  a  loan  for  municipal  purposes; 
such  a  representation,  by  the  con- 
stituted authorities  of  the  city, 
would  naturally  avert  suspicion  of 
bad  faith  upon  their  part  and  induce 
purchasers  to  omit  an  examination 
of  the  ordinances  themselves  and 
consequently  the  city  was  estopped, 
as  against  a  bona  fide  holder  for 
value,  to  say  that  the  bonds  were 
not  issued  for  legitimate  or  proper 
municipal  or  corporate  purposes." 
Comanche  County  v.  Lewis,  133  U. 
S.  198.  See,  however,  Barnett  v. 
City  of  Denison,  145  U.  S.  135;  City 
of  Cairo  v.  Zane,  149  U.  S.  122; 
Guernsey  v.  Burlington  Tp.,  4  Dill. 
372,  Fed.  Gas.  No.  5,855;  National 
Life  Ins.  Co.  v.  Board  of  Education 
of  Huron  (C.  C.  A.)  62  Fed.  778. 
See  quotations  from  Judge  Sanborn's 
opinion,  §  204,  note  503,  supra;  Ris- 


§  213 


ISSUANCE    OF    SECURITIES. 


489 


§  212.    The  doctrine  as  applied  to  bonds  containing  no  recitals 
of  authority. 

Where  negotiable  bonds  are  issued  containing  no  recitals  of 
authority,  it  is  quite  generally  held  that  they  are  not  unimpeach- 
able in  the  hands  of  bona  fide  holders.  In  an  action  on  the  bonds 
under  such  circumstances,  the  plaintiff  should  show  either  that 
the  bonds  contained  such  recitals  as  would  preclude  the  public 
corporation  from  impeaching  their  validity  or  else  that  they  were 
issued  in  substantial  compliance  with  the  law  authorizing  them 
and  for  a  proper  purpose.529 

§  213.    Bona  fide  holder. 

The  question  of  who  is  or  may  become  a  bona  fide  holder530  of 
negotiable  bonds  issued  by  public  corporations  is  an  important 


ley  v.  Village  of  Howell  (C.  C.  A.) 
64  Fed.  453;  Wesson  v.  Saline  Coun- 
ty (C.  C.  A.)  73  Fed.  917,  following 
City  of  Evansville  v.  Dennett,  161  U. 
S.  434,  and  overruling  Post  v.  Pulas- 
ki  County  (C.  C.  A.)  49  Fed.  628; 
Ashman  v.  Pulaski  County  (C.  C. 
A.)  73  Fed.  927;  Second  Ward  Sav. 
Bank  v.  City  of  Huron,  80  Fed.  660; 
Waite  v.  City  of  Santa  Cruz,  89  Fed. 
619;  Haskell  County  Com'rs  v.  Na- 
tional Life  Ins.  Co.  (C.  C.  A.)  90 
Fed.  228;  Meade  County  Com'rs  v. 
Aetna  Life  Ins.  Co.  (C.  C.  A.)  90 
Fed.  237;  City  of  Uvalde  v.  Spier 
(C.  C.  A.)  91  Fed.  594;  Village  of 
Kent  v.  Dana  (C.  C.  A.)  100  Fed. 
56;  Clapp  v.  Otoe  County  (C.  C.  A.) 
104  Fed.  473;  City  of  Pierre  v.  Duns- 
comb,  106  Fed.  611;  Independent 
School  Dist.  of  Sioux  City  v.  Rew, 
111  Fed.  1,  55  L.  R.  A.  364;  Clapp  v. 
Village  of  Marice  City  (C.  C.  A.)  Ill 
Fed.  103;  Town  of  Brewton  v.  Spira, 
106  Ala.  229,  17  So.  606;  Brown 
v.  Milliken,  42  Kan.  769;  State  v. 
Wichita  County  Com'rs,  62  Kan.  494, 
64  Pac.  45;  Thompson  v.  Village  of 
Mecosta,  127  Mich.  522,  86  N.  W. 


1044;  Jones  v.  City  of  Camden,  44 
S.  C.  319;  City  of  Jefferson  v.  Marsh- 
all Nat.  Bank,  18  Tex.  Civ.  App.  539, 
46  S.  W.  97.  But  see  the  case  of 
Noel  Young  Bond  &  Stock  Co.  v. 
Mitchell  County,  21  Tex.  Civ.  App. 
638;  Town  of  Clifton  Forge  v.  Brush 
Elec.  Co.,  92  Va.  289,  23  S.  E.  288; 
Mills  v.  Gleason,  11  Wis.  470. 

529  Town  of  Concord  v.  Robinson, 
121  U.  S.  165;  Hopper  v.  Town  of 
Covington,  10  Biss.  488,  8  Fed.  777; 
Bolles  v.  Perry  County  (C.  C.  A.) 
92  Fed.  479;  Lewis  v.  Bourbon  Coun- 
ty Com'rs,  12  Kan.  186;  Hubbell  v. 
Town  of  Custer  City,  15  S.  D.  55,  87 
N.  W.  520. 

sso  Mercer  County  v.  Hacket,  68  U. 
S.  (1  Wall.)  83.  "Although  we 
doubt  not  the  facts  stated  as  to  the 
atrocious  frauds  which  have  been 
practiced  in  some  counties,  in  issu- 
ing and  obtaining  these  bonds  we 
cannot  agree  to  overrule  our  own  de- 
cisions and  change  the  law  to  suit 
hard  cases.  The  epidemic  insanity 
of  the  people,  the  folly  of  county  offi- 
cers, the  knavery  of  railroad  'specu- 
lators' are  pleas  which  might  have 


490 


POWERS. 


§  213 


one,  for  upon  the  existence  of  such  a  condition  depends  the 
application  of  the  principles  of  estoppel,  as  suggested  in  the  pre- 
ceding sections.  To  constitute  a  bona  fide  holder  it  is  necessary 
that  one  should  have  purchased  the  bond  before  maturity,531  have 
given  value  for  it,632  and  have  no  legally  competent  knowledge 
of  defects  or  irregularities  in  the  manner  of  issue  which  as  against 
one  having  such  knowledge  does  not  preclude  the  municipality 


just  weight  in  an  application  to  re- 
strain the  issue  or  negotiation  of 
these  bonds  but  cannot  prevail  to  au- 
thorize their  repudiation,  after  they 
have  been  negotiated  and  have  come 
into  the  possession  of  bona  fide  hold- 
ers." Galveston,  H.  &  H.  R.  Co.  v. 
Cowdrey,  78  U.  S.  (11  Wall.)  459. 
"One  who  purchases  railroad  bonds 
in  open  market,  supposing  them  to 
be  valid  and  having  no  notice  to  the 
contrary  will  be  deemed  a  bona  fide 
holder."  McClure  v.  Oxford  Tp.,  94 
U.  S.  429.  "A  bona  fide  holder  is  a 
purchaser  for  value  without  notice, 
or  the  successor  of  one  who  was." 
Town  of  Venice  v.  Murdock,  92  U. 
S.  494;  Town  of  Genoa  v.  Woodruff, 
92  U.  S.  502;  Humboldt  Tp.  v.  Long, 
92  U.  S.  642;  Douglas  County  Com'rs 
v.  Bolles,  94  U.  S.  104;  Town  of  Or- 
leans v.  Platt,  99  U.  S.  676;  Mont- 
clair  Tp.  v.  Ramsdell,  107  U.  S.  147; 
Sayles  v.  Garrett,  110  U.  S.  288; 
Mobile  Sav.  Bank  v.  Oktibbeha  Coun- 
ty Sup'rs,  24  Fed.  110;  Sioux  City 
&  St.  P.  R.  Co.  v.  County  of  Os- 
ceola,  45  Iowa,  168;  Id.,  52  Iowa,  26; 
Independent  Dist.  of  Rock  Rapids  v. 
Society  for  Savings,  98  Iowa,  581,  67 
N.  W.  370;  School  Dist.  No.  40  v. 
Gushing,  8  Kan.  App.  728,  54  Pac. 
924;  Taylor  v.  Daviess  County,  17 
Ky.  L.  R.  711,  32  S.  W.  416;  Pugh 
v.  Moore,  44  La.  Ann.  209;  State  v. 
Clinton,  28  La.  Ann.  52;  State  v. 
Hart,  46  La.  Ann.  40;  City  of  Eliza- 
beth v.  Force,  29  N.  J.  Eq.  587;  Cop- 
per v.  Jersey  City,  44  N.  J.  Law, 


634.  See  in  29  Am.  Law  Reg.  (N. 
S.)  380,  a  scholarly  and  thorough 
discussion  of  the  question  and  the 
rights  of  bona  fide  holders  by  Clar- 
ence H.  Childs  of  the  Minneapolis 
bar. 

Germania  Sav.  Bank  v.  Village  of 
Suspension  Bridge,  73  Hun,  590,  26 
N.  Y.  Supp.  98.  One  cannot  be  a 
bona  fide  holder  of  bonds  stolen 
from  the  public  authorities  before 
issue.  Town  of  Ontario  v.  Union 
Bank  of  Rochester,  21  Misc.  770,  47 
N.  Y.  Supp.  927;  Cagwin  v.  Town 
of  Hancock,  84  N.  Y.  532;  Seybel  v. 
National  Currency  Bank,  54  N.  Y. 
288;  Oswego  County  Sav.  Bank  v. 
Town  of  Genoa,  66  App.  Div.  330,  72 
N.  Y.  Supp.  786.  There  cannot  be  a 
bona  fide  holder  of  bonds  issued 
without  authority.  See,  also,  18 
Am.  Rep.  259-269.  Hainer,  Mun. 
Secur.  §§  397  et  seq.,  and  Simonton, 
Mun.  Bonds,  §§  116  et  seq. 

631  Texas  v.  White,  74  U.  S.  (7 
Wall.)  700;  Town  of  Grand  Chute 
v.  Winegar,  82  U.  S.  (15  Wall.)  355; 
Cromwell,  v.  Sac  County,  96  U.  S. 
51. 

532  Briggs  v.  Town  of  Phelps,  70 
Fed.  29;  D'Esterre  v.  City  of  Brook- 
lyn, 90  Fed.  586;  Town  of  Greenburg 
v.  International  Trust  Co.  (C.  C.  A.) 
94  Fed.  755;  Thompson  v.  Village  of 
Mecosta,  127  Mich.  522,  86  N.  W. 
1044,  citing  Common  Council  of  Ce- 
dar Springs  v.  Schlich,  81  Mich.  405, 
8  L.  R.  A.  851;  Gibbs  v.  School  Dist 
No.  10,  88  Mich.  834. 


§  213 


ISSUANCE    OF    SECURITIES. 


491 


from  setting  them  up.533  In  a  leading  text-book  -on  municipal 
bonds534  the  following  definition  is  given:  "A  bona  fide  holder 
of  a  negotiable  bond  or  other  negotiable  paper  is  a  second  or 
other  subsequent  holder  of  it  who  takes  it  for  value  in  good 
faith  before  maturity  and  without  notice  of  defects  and  such  a 
holder  obtains  a  perfect  title  and  may  hold  it  against  the 
world.  It  becomes  his  absolutely,  with  the  right  to  demand  pay- 
ment of  it  for  himself  and,  if  necessary,  to  enforce  its  collection 
in  his  own  name  and  his  privies  have  the  same  rights."  It  is  not 
necessary  to  constitute  one  a  bona  fide  holder  of  negotiable  bonds 
to  show  that  he  himself  paid  value  therefor  but  he  can  rely  upon 
the  title  of  any  prior  bona  fide  holder  for  value.  A  transferee 
from  a  bona  fide  purchaser  of  negotiable  bonds  takes  all  the 
rights  of  the  transferor  and  may  invoke  every  presumption  and 
estoppel  from  their  recitals  to  sustain  their  validity  that  such 
transferor  might,  although  he  takes  them  as  a  donation  after 
maturity  and  with  notice  of  alleged  defenses,535  or  without  re- 


533  Scotland  County  v.  Hill,  132  U. 
S.  107;   Mobile  Sav.  Bank  v.  Oktib- 
beha    County    Sup'rs,    22    Fed.    580; 
Suffolk  Sav.  Bank  v.  City  of  Boston, 
149  Mass.  364,  4  L.  R.  A.  516;  Schmid 
v.   Village   of   Frankfort,   131    Mich. 
197,  91  N.  W.  131;   Starin  v.  Town 
of    Genoa,    23    N.    Y.    439;    City    of 
Lynchburg  v.  Slaughter,  75  Va.  57. 

534  Simonton,   Mun.  Bonds,   §   116. 
See,  also,  Bronson,  Mun.  Bonds,  pp. 
29  et  seq. 

535  Village  of  Montclair  v.   Rams- 
dell,  107  U.  S.  147,  citing  and  quot- 
ing from  Douglas  County  Com'rs  v. 
Bolles,  94  U.  S.  104,  where,  in  speak- 
ing of  recitals  in  bonds,  the  cour.t 
said:     "Behind  such  a  recital,  as  we 
have   seen,   a   bona   fide    holder   for 
value  paid  is  bound  to  look  for  noth- 
ing except  legislative  authority  giv- 
en for  the  issue  of  municipal  bonds 
to    railroad    companies.     He   is    not 
required    to    examine    whether    the 
conditions  upon  which  such  author- 
ity may  be  exercised  have  been  ful- 


filled. He  may  rely  upon  the  deci- 
sion made  by  the  tribunal  selected 
by  the  legislature.  Do  then,  the 
plaintiffs  below  stand  in  the  posi- 
tion of  bona  fide  holders  for  value 
paid,  and  without  notice  of  any 
defect  or  irregularity  in  the  pro- 
ceedings anterior  to  the  issue  of  the 
jonds?  In  view  of  the  findings  of 
the  circuit  court,  very  plainly  they 
do.  They  are  the  holders  of  the 
coupons  in  suit  taken  from  those 
bonds,  some  of  which  they  purchased 
without  notice  of  any  defense.  The 
residue  of  those  held  by  them  are 
owned  by  other  persons  who  depos- 
ited them  with  the  plaintiffs  for  col- 
lection taking  a  receipt.  There  is 
no  evidence  when  or  for  what  con- 
sideration those  other  persons  pur- 
chased and  no  evidence  of  actual  no- 
tice to  them  or  to  the  plaintiffs  of 
any  of  the  facts  anterior  to  the  is- 
sue of  the  bonds.  The  findings  of 
the  court  exhibit  no  fraud  in  the  in- 
ception of  the  contracts  nor  any- 


492 


POWERS. 


§  213 


gard  to  any  knowledge  which  such  purchaser  may  himself  have 
affecting  the  validity  of  the  bonds.536  An  overdue  and  unpaid 
coupon,  it  has  been  held,  does  not  render  the  whole  bond  dis- 
honored so  as  to  deprive  the  buyer  of  the  character  of  a  bona 
fide  purchaser  before  maturity.537  The  fact  that  a  railroad  corn- 


thing  that  casts  upon  the  holders  of 
the  bonds  or  coupons  the  burden  of 
showing  that  they  are  Jxma  fide 
holders  for  value.  The  legal  pre- 
sumption, therefore,  is  that  they  are. 
But  the  plaintiffs  are  not  forced  to 
rest  upon  mere  presumption  to  sup- 
port their  claims  to  be  considered  as 
having  the  rights  of  purchasers  with- 
out notice  of  any  defense.  They  can 
call  to  their  aid  the  fact  that  their 
predecessors  in  ownership  were  such 
purchasers.  To  the  rights  of  those 
predecessors  they  have  succeeded. 
Certainly  the  railroad  company  paid 
for  the  bonds  and  coupons  by  giving 
an  equal  amount  of  their  stock, 
which  the  county  now  holds;  and 
nothing  in  the  special  facts  found 
Bhows  that  the  company  knew  of 
any  irregularity  or  fault  in  the  is- 
sue. And  still  more;  the  contractor 
for  building  the  railroad  received 
the  bonds  from  the  county  in  pay- 
ment of  his  work  either  in  whole  or 
in  part  after  his  work  had  been  com- 
pleted. There  is  no  pretense  that  he 
had  notice  of  anything  that  should 
have  made  him  doubt  their  validity. 
Why  was  he  not  a  bona  fide  purchas- 
er for  value?  The  law  is  undoubted 
that  every  person  succeeding  him  in 
the  ownership  of  the  bonds  is  en- 
titled to  stand  upon  his  rights." 
Lake  County  Com'rs  v.  Sutliff  (C. 
C.  A.)  97  Fed.  270;  Pickens  Tp.  T. 
Post  (C.  C.  A.)  99  Fed.  659,  citing 
Goodman  v.  Simonds,  20  How.  (U. 
S.)  343;  Brown  v.  Spofford,  95  U.  S. 
474. 

Hughes  County  v.  Livingston   (C. 


C.  A.)  104  Fed.  306;  Johnson  v.  But- 
ler, 31  La.  Ann.  770;  Seybel  v.  Na- 
tional Currency  Bank,  54  N.  Y.  288, 
13  Am.  Rep.  583.  A  purchaser  of 
bonds  payable  to  buyer  is  not  bound 
to  make  inquiry  of  or  take  any  spe- 
cial precaution  concerning  the  title 
of  one  offering  to  sell  such  bonds. 

536  Gunnison  County  Com'rs  v. 
Rollins,  173  U.  S.  255,  following 
Chaffee  County  v.  Potter,  142  U.  S. 
355;  Lake  County  v.  Graham,  130  U. 
S.  674. 

837  Cromwell  v.  Sac  County,  96  U. 
S.  51.  "The  interest  stipulated  was 
a  mere  incident  of  the  debt.  The 
holder  of  the  bond  had  his  option 
to  insist  upon  its  payment  when  due, 
or  to  allow  it  to  run  until  the  ma- 
turity of  the  bond;  that  is  until  the 
principal  was  payable.  Many  causes 
may  have  existed  for  a  failure  to 
meet  the  interest  as  it  matured,  en- 
tirely independent  of  the  question  of 
the  validity  of  the  bonds  in  their 
inception.  The  payment  of  previous 
installments  of  interest  would  seem 
to  suggest  that  only  causes  of  a 
temporary  nature  had  prevented 
their  continued  payment.  If  no  in- 
stallment had  been  paid,  and  several 
were  past  due,  there  might  have 
been  greater  reason  for  hesitation 
on  the  part  of  the  purchaser  to  take 
the  paper  and  suspicions  might  have 
been  excited  that  something  was 
wrong  in  issuing  it.  All  that  we 
now  decide  is,  that  the  simple  fact 
that  an  installment  of  interest  is 
overdue  and  unpaid,  disconnected 
from  other  facts  is  not  sufficient  to 


§  213 


ISSUANCE    OF    SECURITIES. 


493 


pany,  to  whom  the  municipal  aid  bonds  were  given,  delivered 
the  bonds  to  third  parties  in  payment  for  goods  will  not  deprive 
such  holders  of  the  rights  of  purchasers  in  good  faith  and  for 
value  if  the  goods  for  which  they  were  exchanged  were  of  value 
to  the  company  in  the  construction  or  operation  of  the  road.538 
The  burden  of  proof,  it  is  usually  held,  to  establish  the  fact  of  a 
bona  fide  holding  is  upon  the  plaintiff  in  an  action  brought  to 
recover  on  municipal  bonds.539  One  cannot  be  a  bona  fide  holder 
where  the  conditions  or  circumstances  are  such  as  to  charge  him 
with  notice  of  the  want  of  original  authority  to  issue  bonds.540 


affect  the  position  of  one  taking  the 
bonds  and  subsequent  coupons  be- 
fore their  maturity  for  value  as  a 
bona  fide  purchaser.  To  hold  other- 
wise would  throw  discredit  upon  a 
large  class  of  securities  issued  by 
municipal  and  private  corporations 
having  years  to  run  with  interest 
payable  annually  or  semi-annually. 
Temporary  financial  pressure,  the 
falling  off  of  expected  revenues  or 
income  and  many  other  causes  hav- 
ing no  connection  with  the  original 
validity  of  such  instruments  have 
heretofore  in  many  instances  pre- 
vented a  punctual  payment  of  every 
installment  of  interest  on  them  as  it 
matured;  and  similar  causes  may  be 
expected  to  prevent  a  punctual  pay- 
ment of  interest  in  many  instances 
hereafter.  To  hold  that  a  failure  to 
meet  the  interest  as  it  matures  ren- 
ders them,  though  they  may  have 
years  to  run,  and  all  subsequent 
coupons  dishonored  paper,  subject  to 
all  defenses  good  against  the  orig- 
inal holders,  would  greatly  impair 
the  currency  and  credit  of  such  se- 
curities and  correspondingly  dimin- 
ish their  value."  National  Bank  of 
North  America  v.  Kirby,  108  Mass. 
497;  Burnham  v.  Brown,  23  Me.  400; 
Grafton  Bank  v.  Doe,  19  Vt.  463; 
Boss  v.  Hewitt,  15  Wis.  260. 

sss  Kennicott    v.     Wayne    County 
Sup'rs,6  Biss.  138,  Fed.  Cas.  No.  7,710. 


639  Tracey  v.  Town  of  Phelps,  22 
Fed.  634.  But  see  Pickens  Tp.  v. 
Post  (C.  C.  A.)  99  Fed.  659,  as  hold- 
ing that  the  holder  of  a  negotiable 
instrument  is  presumed  to  have  tak- 
en it  before  maturity  for  value  and 
without  notice  of  defects. 

Grant  Tp.  v.  Reno  Tp.,  114  Mich. 
41,  72  N.  W.  18.  "To  entitle  Haugan 
(the  holder  of  the  bonds)  to  a  judg- 
ment against  the  township  of  Grant 
it  was  necessary  that  he  should  show 
that  he  or  some  former  owner  of  the 
bonds  was  a  purchaser  in  good  faith 
before  maturity,  for  a  valuable  con- 
sideration and  without  notice  of  the 
invalidity  of  the  bonds,  as  the  law 
imposes  the  burden  of  such  showing 
upon  the  plaintiff  where  the  defend- 
ant shows  that  the  bond  or  note  was 
illegal  or  void  in  the  hands  of  the 
payee."  Citing  Paton  v.  Coit,  5 
Mich.  505;  Manistee  Nat.  Bank  T. 
Seymour,  64  Mich.  59,  31  N.  W.  140; 
Bottomley  v.  Goldsmith,  36  Mich.  27; 
Mace  v.  Kennedy,  68  Mich.  389,  36 
N.  W.  187;  Conley  v.  Winsor,  41 
Mich.  253;  Lytle  v.  Town  of  Lan- 
sing, 147  U.  S.  59,  13  Sup.  Ct.  254. 

Thompson  v.  Village  of  Mecosta, 
127  Mich.  522,  86  N.  W.  1044; 
Thompson  v.  Town  of  Mamakat- 
ing,  37  Hun  (N.  Y.)  400. 

540  Farmers'  Loan  &  Trust  Co.  v. 
City  of  Galesburg,  133  U.  S.  156; 
Francis  v.  Howard  County,  50  Fed. 


494 


POWERS. 


§  214.    Coupons;  their  legal  character. 

The  express  authority  granted  public  corporations  to  issue  ne- 
gotiable bonds  bearing  interest,  carries  with  it  the  power  to  issue 
evidences  of  the  latter  obligation  in  the  form  of  coupons  payable 
to  bearer  or  to  order.541  A  coupon  is  therefore  a  written  promise 
by  the  maker  of  the  bond  to  which  it  may  be  attached  to  pay  one 
of  the  installments  of  interest  due  upon  the  principal.542  When 


44.  "Howard  County  assessment 
rolls  of  1883  were  public  records, 
made  in  obedience  to  the  constitu- 
tion and  laws  of  the  state.  They 
were  open  to  the  inspection  of  the 
public  and  tney  contained  the  amount 
of  the  taxable  property  of  the  county. 
Purchasers  of  the  bonds  were  charge- 
able with  notice  of  these  records  and 
had  they  been  consulted,  the  discov- 
ery would  have  followed  that  a  tax 
of  one-fourth  of  one  per  cent  au- 
thorized by  the  constitution  and  the 
third  section  of  the  act  of  1881  lev- 
ied annually  on  property  valued  at 
$863,011.38  would  liquidate  in  ten 
years  an  indebtedness  of  only  $14,- 
982.77.  The  bonds  in  excess  of  that 
amount  are  void  and  collection  of 
the  excess  cannot  be  enforced 
against  the  county,  even  by  a  bona 
fide  purchaser  for  value." 

Cagwin  v.  Town  of  Hancock,  84 
N.  Y.  532.  "There  can  be  no  bona 
fide  holder  of  bonds  within  the 
meaning  of  the  law  applicable  to 
negotiable  paper  which  have  been 
issued  without  authority.  A  town 
has  no  general  authority  to  issue 
such  bonds.  It  can  issue  them  only 
by  virtue  of  special  authority  con- 
ferred by  some  statute.  Unless  is- 
sued in  the  way  pointed  out  by  stat- 
ute they  cannot  bind  the  town.  The 
statute  specifies  the  powers  of  the 
agents  of  the  town  and  the  precise 
conditions  upon  which  the  bonds 


could  be  issued;  and  all  persons 
taking  the  bonds  are  chargeable  with 
knowledge  of  the  statute  and  they 
must  see  to  it  that  the  statute  has 
been  complied  with  before  they  can 
with  absolute  safety  take  the  bonds. 
Such  is  the  law  as  laid  down  in  this 
state." 

s*1  Atchison  Board  of  Education  v. 
De  Kay,  148  U.  S.  591.  "But  it  is 
further  insisted  that  even  if  the 
bonds  were  valid,  the  coupons  were 
not  because  coupons  are  not  named 
in  the  section  of  the  statute  author- 
izing the  issue  of  the  bonds.  But 
coupons  are  simply  instruments  con- 
taining the  promise  to  pay  interest 
and  the  express  authority  was  to  is- 
sue bonds  bearing  interest.  While 
it  is  true  that  the  power  to  borrow 
money  granted  to  a  municipal  cor- 
poration does  not  carry  with  it  by 
implication  the  power  to  issue  nego- 
tiable bonds  we  are  of  opinion  that 
the  express  power  to  issue  bonds 
bearing  interest  carries  with  it  the 
power  to  attach  to  those  bonds  in- 
terest coupons." 

542  Moore  v.  Greenhow,  114  U.  S. 
338.  And  see  Vashon  v.  Greenhow, 
135  U.  S.  713,  construing  the  coupon 
contract  of  the  state  of  Virginia  as 
authorized  by  the  funding  acts  of 
March  30,  1871,  and  March  28,  1879. 
Strickler  v.  Yager,  29  Fed.  244;  Wil- 
lis v.  Miller,  29  Fed.  238;  Antoni  v. 
Wright,  22  Grat.  (Va.)  833;  Poin- 


ISSUANCE    OF    SECURITIES. 


495 


legally  issued  by  public  corporations  they,  equally  with  the  bonds 
to  which  annexed,  if  payable  to  bearer  or  payable  to  order  and 
endorsed  in  blank,  become  transferable  by  delivery  and  are  sub- 
ject to  the  same  rules  and  principles  of  negotiable  paper  that 
apply  to  the  bond  itself  with  respect  to  the  rights  and  title  of  a 
bona  fide  holder.5*3  The  bona  fide  holder  of  such  coupons,  there- 
fore, has  the  right  to  invoke  the  same  principles  of  law  which 
attach  to  a  negotiable  bond  and  apply  the  same  doctrines  of 
estoppel  and,  though  separated  from  the  bond  to  which  they 
were  once  attached,  they  retain  the  same  nature  and  character 
as  the  bond.544  A  holder  of  a  detached  coupon  possesses  equal 
rights  with  the  owner  of  the  bond  from  which  it  was  cut.54* 
Suit  can  be  maintained  upon  them  under  the  same  conditions  as 


dexter  v.  Greenhow,  84  Va.  441,  4  S. 
E.  742,  following  Antoni  v.  Green- 
how,  107  U.  S.  769,  2  Sup.  Ct.  91. 

543  City  of  Lexington  v.  Butler,  81 
U.  S.  (14  Wall.)  282;  Town  of  East 
Lincoln  v.  Davenport,  94  U.  S.  801. 
In  this  case  Hunt,  J.,  said,  in  speak- 
ing of  the  point  mentioned  in  the 
text:  "The  case  shows  that  the 
plaintiff  below  was  the  bona  fide 
owner  of  the  coupons  sued  upon. 
Questions  of  form  merely  or  irregu- 
larity or  fraud  or  misconduct  on  the 
part  of  the  agents  of  the  town  can- 
not therefore,  be  considered.  Wheth- 
er the  supervisor  of  the  town  signed 
the  bonds  during  the  midnight 
hours,  whether  he  delivered  them 
at  about  daylight  on  the  morning  of 
April  2,  1873,  and  whether  he  im- 
mediately left  the  town  to  avoid  the 
service  of  an  injunction  are  matters 
not  chargeable  to  the  owner  of  the 
bonds.  The  supervisor  was  not  his 
agent  but  the  agent  of  the  town,  and 
If  there  has  been  misconduct  on  his 
part,  the  town,  rather  than  a  stran- 
ger must  bear  the  consequences. 
There  must  be  authority  in  the  town 
to  Issue  the  bonds  by  the  statutes  of 
the  state.  If  this  cannot  be  found 


the  holder  must  fail,  if  it  exists,  he 
is  entitled  to  recover."  Thayer  v. 
Montgomery  County,  3  Dill.  389, 
Fed.  Gas.  No.  13,870;  Cooper  v.  Town 
of  Thompson,  13  Blatchf.  434,  Fed, 
Cas.  No.  3,202;  Manhattan  Sav.  Inst. 
v.  New  York  Nat.  Exch.  Bank,  170 
N.  Y.  58;  Grand  Rapids  &  I.  R.  Co. 
v.  Sanders,  54  How.  Pr.  (N.  Y.) 
214. 

s**  Lake  County  Com'rs  v.  Platt 
(C.  C.  A.)  79  Fed.  567;  Gray  v. 
York,  15  Blatchf.  335,  Fed.  Cas.  No. 
5,731;  Augusta  Bank  v.  City  of  Au- 
gusta, 49  Me.  507;  First  Nat.  Bank 
of  St.  Paul  v.  Scott  County  Com'rs, 
14  Minn.  77  (Gil.  59).  See  as  to 
the  rights  of  a  bona  fide  holder 
bought  after  maturity.  Miller  v. 
Town  of  Berlin,  13  Blatchf.  245,  Fed. 
Cas.  No.  9,562;  Arents  v.  Com.,  18 
Grat.  (Va.)  750. 

545  City  of  Kenosha  v.  Lamson,  76 
U.  S.  (9  Wall.)  477;  Evertson  v.  Na- 
tional Bank  of  Newport,  66  N.  Y. 
14,  23  Am.  Rep.  9;  Second  Nat.  Bank 
v.  School  Dist.  of  Connellsville,  23 
Pa.  Co.  Ct.  R.  636;  Brown  v.  Town 
of  Point  Pleasant,  36  W.  Va.  290,  15 
S.  E.  209. 


496 


POWERS. 


§  214 


would  apply  to  the  bond  itself  and  the  bona  fide  holder  is  as  ef- 
fectually shielded  in  such  an  action  from  the  defense  of  prior 
equities  between  the  original  parties  as  the  holder  of  negotiable 
instruments.548  They  are  generally  transferred  by  delivery  being 
promises  to  pay  to  bearer  and  bear  interest  from  the  time  of  de- 
mand after  their  maturity.547  If  unpaid  they  are  considered  in- 
dependent contracts  for  the  payment  of  the  interest  they  repre- 
sent and  an  action  upon  them  can  be  maintained  without  any 
proof  of  title  to  the  bonds;  the  possession  of  the  coupon  is  pre 
sumptive  evidence  of  the  right  of  the  holder  to  recover.548 


ins  city  of  Lexington  v.  Butler,  81 
U.  S.  (14  Wall.)  282.  "Coupons  at- 
tached as  interest  warrants  to  bonds 
for  the  payment  of  money  lawfully 
issued  by  municipal  corporations  as 
well  as  the  bonds  to  which  they  are 
attached,  when  they  are  payable  to 
order  or  are  indorsed  in  blank  or  are 
made  payable  to  bearer,  are  transfer- 
able by  delivery  and  are  subject  to 
the  same  rules  and  regulations  so 
far  as  respects  the  title  and  rights 
of  the  holder  as  negotiable  bills  of 
exchange  and  promissory  notes. 
Holders  of  such  instruments,  if  the 
same  are  endorsed  in  blank  or  are 
payable  to  bearer  are  as  effectually 
shielded  from  the  defense  of  prior 
equities  between  the  original  par- 
ties if  unknown  to  them  at  the  time 
of  the  transfer,  as  the  holders  of 
any  other  class  of  negotiable  instru- 
ments." Citing  Mercer  County  v. 
Racket,  68  U.  S.  (1  Wall.)  83;  Mo- 
ran  v.  Miami  County  Com'rs,  2 
Black  (U.  S.)  722. 

Bank  of  California  v.  Dunn,  66 
Cal.  38;  Muhlenburg  County  v.  More- 
head,  20  Ky.  L.  R.  377,  46  S.  W.  216; 
Bainbridge  v.  City  of  Louisville,  83 
Ky.  285.  A  municipality  is  liable 
to  the  owner  of  stolen  coupons  if 
paid  after  maturity  to  one  other 
than  such  true  owner  although  in 
the  hands  of  a  bona  fide  purchaser. 


547  Town  of  Genoa  v.  Woodruff, 
92  U.  S.  502;  United  States  Mortg. 
Co.  v.  Sperry,  138  U.  S.  313;  City  of 
Cairo  v.  Zane,  149  U.  S.  122;  Cor-, 
coran  v.  Chesapeake  &  0.  Canal  Co., 
1  MacArthur  (D.  C.)  358;  Hughes 
County  v.  Livingston  (C.  C.  A.)  104 
Fed.  306;  People  v.  Getzendaner,  137 
111.  234;  Town  of  Lexington  v.  Union 
Nat.  Bank,  75  Miss.  1,  22  So.  291; 
Burroughs  v.  Richmond  County 
Com'rs,  65  N.  C.  234;  McLendon  v. 
Anson  County  Com'rs,  71  N.  C.  38; 
Harper  v.  Ely,  70  111.  581;  Humph- 
reys v.  Morton,  100  111.  592;  Drury 
v.  Wolfe,  134  111.  294. 

5«  Knox  County  Com'rs  v.  Aspin- 
wall,  21  How.  (U.  S.)  539;  Thom- 
son v.  Lee  County,  70  U.  S.  (3  Wall.) 
327;  McCoy  v.  Washington  County,  3 
Wall.  Jr.  381,  Fed.  Gas.  No.  8,731; 
City  of  Kenosha  v.  Lamson,  76  U.  S. 
(9  Wall.)  477.  "We  agree  that  if 
this  were  an  action  upon  the  bonds 
to  recover  installments  of  interest 
that  had  accrued  thereon  *  *  * 
there  would  be  great  difficulty  in 
maintaining  in  his  name  as  well  as 
without  producing  the  bonds  as  the 
proper  evidence  that  interest  was 
due.  The  plaintiff  under  such  cir- 
cumstances, doubtless,  would  have  a 
remedy  for  withholding  the  interest; 
but  *  *  *  we  do  not  regard  the 
action  as  founded  upon  the  bonds 


§  215 


ISSUANCE    OF    SECURITIES. 


497 


§  215.    Time  and  place  of  payment. 

The  fact  that  coupons  are  made  payable  at  a  certain  place  does 
not  necessarily  require  a  demand  for  their  payment  to  be  made 
at  that  place.5*9  If,  however,  the  authority  for  the  issue  of  nego- 
tiable bonds  with  coupons  requires  that  they  "shall  be  transfer- 
able only  on  the  books  of  the  city,"  it  has  been  held,  a  holder 
of  the  coupons  cannot  recover  unless  the  bonds  have  been  trans- 
ferred as  provided  in  the  act.550  If  payable  out  of  a  special  fund, 


but  upon  the  coupons.  The  bonds 
are  recited  in  very  general  terms,  it 
is  true  in  the  declaration;  but  it  is 
by  way  of  explaining  and  bringing 
into  view  the  relation  which  the  cou- 
pons originally  held  to  the  bonda 
and  which  in  an  important  sense, 
they  still  hold,  though  distinct  as  it 
respects  ownership,  as  they  repre- 
sent the  interest  that  had  become 
due  upon  them.  The  relation  we  re- 
fer to  is  that  these  coupons  are  not 
received  or  intended  to  have  the  ef- 
fect of  extinguishing  the  interest  due 
on  the  bonds  as  this  collateral  se- 
curity, or  rather  this  evidence  of 
the  interest,  upon  well  settled  prin- 
ciples, cannot  have  that  effect  with- 
out an  express  agreement  between 
the  parties.  Besides  the  coupons  are 
given  simply  as  a  convenient  mode 
of  obtaining  payment  of  the  interest 
as  it  becomes  due  upon  the  bonds. 
There  is  no  extinguishment  till  pay- 
ment." 

Kennard  v.  Cass  County,  3  Dill. 
147,  Fed.  Cas.  No.  7,697;  Dudley  v. 
Lake  County  Com'rs  (C.  C.  A.)  80 
Fed.  672;  Town  of  Cicero  v.  Clifford, 
53  Ind.  191;  Burroughs  v.  Richmond 
County  Com'rs,  65  N.  C.  234;  Bank 
of  U.  S.  v.  Macalester,  9  Pa.  475; 
Beaver  County  v.  Armstrong,  44  Pa. 
63;  National  Exch.  Bank  v.  Hart- 
ford, P.  &  F.  R.  Co.,  8  R.  I.  375; 
City  of  Memphis  v.  Bethel  (Tenn.) 
17  S.  W.  191 ;  Kennard  v.  Cass  Coun- 


ty, 1  Cent.  Law  J.  35.  See,  also, 
New  London  City  Nat.  Bank  v.  Ware 
River  R.  Co.,  41  Conn.  542;  Spooner 
v.  Holmes,  102  Mass.  503,  3  Am.  Rep. 
491;  Smith  v.  Clark  County,  54  Mo. 
58;  Langston  v.  South  Carolina  R. 
Co.,  2  S.  C.  (2  Rich.)  248. 

5*9  Walnut  Tp.  v.  Wade,  103  U.  S. 
683;  Hughes  County  v.  Livingston 
(C.  C.  A.)  104  Fed.  306.  "The  fact 
that  the  bonds  and  coupons  were  not 
presented  for  payment  at  the  bank 
in  New  York  where  by  their  terms 
they  were  payable,  was  immaterial. 
There  was  no  claim  that  the  county 
had  ever  paid  them,  or  endeavored 
to  pay  them;  no  claim  that  it  had 
ever  placed  the  money  at  the  bank 
in  New  York  to  be  applied  to  their 
payment.  In  this  state  of  the  case, 
the  plaintiff  was  not  required  to  go 
through  the  useless  ceremony  of  pre- 
senting his  coupons  where  there  was 
nothing  to  pay  them  before  he  com- 
menced his  suit  for  the  default  of 
the  county.  The  fact  that  coupons 
are  made  payable  at  a  particular 
place  does  not  make  a  presentation 
for  payment  at  that  place  necessary 
before  an  action  can  be  maintained 
upon  them."  Smith  v.  Tallapoosa 
County,  2  Woods,  574,  Fed.  Cas.  No. 
13,113;  Wallace  v.  McConnell,  13  Pet. 
(U.  S.)  136. 

ssoQelrich  v.  City  of  Pittsburgh, 
1  Pittsb.  Rep.  522,  Fed.  Cas.  No.  10,- 
442. 


Abb.  Corp.— 32. 


498 


POWERS. 


§  216 


it  is  necessary  in  a  suit  to  allege  and  prove  the  existence  of  the 
fund  and  in  the  case  there  are  not  moneys  sufficient  in  such  fund, 
a  demand  for  payment  is  properly  refused  and  the  holder  of  such 
coupons  will  have  no  right  of  action  to  recover  the  account  due 
from  the  general  revenues  of  the  corporation.551  A  condition 
imposed  by  a  municipality  upon  the  holder  of  coupons  in  regard 
to  their  deposit  for  payment  not  authorized  by  the  conditions  of 
the  bond  from  which  the  coupons  were  detached  is  not  binding 
upon  the  coupon  holder.552 

§  216.    Negotiable  securities;  sale. 

The  manner  or  time  of  sale  of  bonds  issued  by  a  public  corpo- 
ration may  be  irregular  or  in  violation  of  some  express  statutory 
provision  which  condition  is  considered  of  so  grave  a  character 
as  to  raise  a  serious  question  of  their  validity  even  though  in  all 
other  respects  such  bonds  are  legal.  Circumstances  to  be  con- 
sidered in  determining  their  validity  when  considered  with  refer- 
ence to  sale  may  be  their  disposal  at  a  price  less  than  par  when 
prohibited  in  this  respect  by  law;553  the  consideration  for  the 


65i  Corcoran  v.  Chesapeake  &  O. 
Canal  Co.,  1  MacArthur  (D.  C.)  358; 
Hall  v.  City  of  New  Orleans,  19  Fed. 
870;  Lorsbach  v.  Lincoln  County,  94 
Fed.  963.  Neither  coupons  nor  the 
bonds  to  which  they  may  have  been 
attached  nor  judgments  upon  them 
are  claims  within  the  meaning  of  the 
Nevada  statutes  requiring  all  claims 
against  counties  to  be  presented  and 
allowed  by  the  proper  county  offi- 
cials. State  v.  Lincoln  County 
Com'rs,  23  Nev.  262,  45  Pac.  982; 
Seymour  v.  Frost,  25  Wash.  644,  66 
Pac.  90. 

552  Bailey  v.  Buchanan  County,  54 
N.  Y.  Super.  Ct.  (22  J.  &  S.)  237. 

553  Mercer  County  v.  Racket,  68  U. 
8.  (1  Wall.)  83;  Richardson  v.  Law- 
fence   County,   154   U.    S.    536;    Na- 
tional Life  Ins.  Co.  v.  Board  of  Edu- 
cation of  Huron   (C.  C.  A.)   62  Fed. 
778;   Williams  v.  Board  of  Revenue 
of  Butler  County,   123  Ala.   432,  26 


So.  346;  Jones  v.  Macon  &  B.  R.  Co., 
39  Ga.  138,  determining  the  right  of 
a  citizen  to  restrain  the  illegal  use 
or  sale,  below  a  lawful  price,  of  rail- 
road aid  bonds;  Sherlock  v.  Village 
of  Winnetka,  59  111.  389;  City  of 
Atchison  v.  Butcher,  3  Kan.  104; 
Frantz  v.  Jacob,  88  Ky.  525,  11  S.  W. 
654;  Neuse  River  Nav.  Co.  v.  New 
Bern  Com'rs,  52  N.  C.  (7  Jones) 
275;  Baker  v.  City  of  Elizabeth,  37 
N.  J.  Law,  142. 

People  v.  Dakin,  43  Hun  (N.  Y.) 
382.  The  premium  from  the  sale  of 
bonds  belongs,  so  it  is  held  in  this 
case,  to  the  fund  to  create  which  the 
bonds  were  issued.  Delafield  v.  State 
of  Illinois,  26  Wend.  (N.  Y.)  192; 
Citizens'  Sav.  Bank  v.  Town  of 
Greenburg,  31  Misc.  428,  65  N.  Y. 
Supp.  554,  citing  Cagwin  v.  Town  of 
Hancock,  84  N.  Y.  532;  Brownell  v. 
Town  of  Greenwich,  114  N.  Y.  518, 
4  L.  R.  A.  685,  following  Village  of 


§ 


ISSUANCE    OF    SECURITIES. 


499 


sale  whether  cash  received  or  the  delivery  of  the  bonds  as  the 
payment  of  the  original  obligation  ;554  the  mode  of  sale  or  delivery 
whether  through  a  financial  agent  or  representative  of  the  cor- 
poration, directly  by  its  own  officers  or  after  public  notice  to  the 
best  bidder;550  and  the  time  of  sale  considered  with  reference  to 


Ft.  Edward  v.  Fish,  156  N.  Y.  363, 
and  distinguishing  Town  of  Green- 
burg  v.  International  Trust  Co.  (C. 
C.  A.)  94  Fed.  755. 

Armstrong  County  v.  Brinton,  47 
Pa.  367;  Whelen's  Appeal,  108  Pa. 
162.  Where  the  sale  of  bonds  is  pro- 
hibited at  less  than  par,  com- 
missions are  not  permissible  which 
reduce  the  amount  received  by  the 
corporation  to  less  than  par.  Those 
bonds  however,  which  had  been  in 
the  hands  of  bona  fide  holders  were 
held  good. 

Germania  Sav.  Bank  v.  Town  of 
Darlington,  50  S.  C.  337;  Nalle  v. 
City  of  Austin  (Tex.  Civ.  App.)  21 
S.  W.  375;  Hunt  v.  Fawcett,  8  Wash. 
396.  Where  bonds  are  prohibited  by 
law  from  being  sold  under  par,  a 
contract  is  void  by  which  a  com- 
mission is  paid  in  effect  making  a 
sale  at  less  than  par. 

Where  the  statutes  do  not  pro- 
hibit the  sale  of  public  securities  at 
less  than  par,  it  is  now  generally 
held  that  they  may  be  sold  at  such 
prices  as  they  may  bring  in  the  mar- 
ket. See  Griffith  v.  Burden,  35  Iowa, 
143;  Orchard  v.  School  Dist.  No.  70, 
14  Neb.  378;  and  City  of  Memphis  v. 
Bethel  (Tenn.)  17  S.  W.  191. 

554  Com.  v.  Inhabitants  of  Wil- 
liamstown,  156  Mass.  70,  30  N.  E. 
472;  Hoag  v.  Town  of  Greenwich, 
133  N.  Y.  152.  The  public  corpora- 
tion may  purchase  its  own  bonds. 
Evans  v.  Tillman,  38  S.  C.  238,  17  S. 
E.  49.  The  question  of  accrued  in- 
terest considered  with  reference  to  a 


provision  for  sale  of  bonds  "at  not 
less  than  par  or  face  value."  Dur- 
yee  v.  Friars,  18  Wash.  55;  Neale  v. 
Wood  County  Ct.,  43  W.  Va.  90,  27 
S.  E.  370. 

555  Roberts  &  Co.  v.  Taft  (C.  C. 
A.)  109  Fed.  825;  Mills  v.  Bellmer, 
48  Cal.  124.  A  public  official  has  no 
right  to  insert  a  condition  in  an  ad- 
vertisement calling  for  bonds  which 
is  not  to  be  implied  from  his  author- 
ized duty  simply  to  advertise  and  is 
not  necessary  to  the  exercise  of  his 
authority. 

Smith  v.  Los  Angeles  County,  99 
Cal.  628.  Public  officials  under  act 
of  March  14,  1883,  have  no  power  to 
employ  an  agent  to  procure  bids  for 
bonds  about  to  be  issued. 

Sidway  7.  South  Park  Com'rs,  120 
111.  496,  11  N.  E.  852;  Sherlock  v. 
Village  of  Winnetka,  59  111.  389. 
The  sale  of  bonds  by  a  public  cor- 
poration to  its  officials  will  be  void 
and  this  without  considering  those 
principles  of  equity  which  apply  to 
persons  acting  in  a  fiduciary  capaci- 
ty or  the  legal  doctrine  that  no  one 
can  contract  with  himself. 

Reed  v.  -Town  of  Orleans,  1  Ind. 
App.  25,  27  N.  E.  109;  Young  v.  Tip- 
ton  County  Com'rs,  137  Ind.  323,  36 
N.  E.  1118;  Butterfield  v.  Inhab- 
itants of  Melrose,  88  Mass.  (6  Al- 
len) 187:  Suffolk  Sav.  Bank  v.  City 
of  Boston,  149  Mass.  364;  Powell  v. 
Heisler,  45  Minn.  549.  Town  officers 
negotiating  and  selling  bonds  issued 
under  a  void  statute  are  not  per- 
sonally liable  to  one  purchasing  with 


500 


POWERS. 


216 


their  formal  and  legal  issue  or  delivery.556  In  all  these  essentials 
the  law  presumes  a  full  compliance  with  the  terms  of  authority 
and  it  is  seldom  that  bonds  valid  in  other  respects  will  be  held 
void  because  of  irregularities  in  the  time  or  manner  of  sale.  A 
substantial  compliance  with  formalities  attendant  upon  their  dis- 
position is  all  the  courts  require  and  this  rule  is  especially  appli- 
cable where  there  is  authority  for  their  issue,  the  manner  of  their 
issue  has  been  regular  and  they  have  passed  into  the  hands  of 
bona  fide  holders.557  If  there  are  irregularities  in  connection 
with  the  manner  or  time  of  sale,  the  agreement  or  contract  for 
such  sale  may  be  held  void  without  affecting  the  validity  of  the 
bonds.558  Where  the  marketable  value  of  municipal  bonds  is  im- 
paired or  destroyed  by  questions  affecting  their  legality  in  con- 
nection with  the  authority  to  issue  or  the  manner  of  its  exercise, 
a  prospective  buyer  or  bidder  cannot  be  compelled  to  take  such 
bonds  or,  in  case  of  his  refusal,  he  is  not  liable  for  damages  which 
the  corporation  may  sustain  by  reason  of  such  action.  This  rule 


notice  of  the  act  under  which  the 
bonds  were  issued  or  the  use  to  be 
made  of  their  proceeds. 

Butler  County  v.  Boatmen's  Bank, 
143  Mo.  13,  44  S.  W.  1047:  Coquard 
v.  School  Dist.  of  Joplin,  46  Mo.  App. 
6;  City  of  New  York  v.  Sands,  105 
N.  Y.  210,  11  N.  E.  820,  reversing 
same  case  in  39  Hun,  519;  Arm- 
strong v.  Village  of  Ft.  Edward,  159 
N.  Y.  315.  The  express  authority  to 
borrow  money  and  issue  bonds  im- 
plies the  power  to  employ  a  person 
to  procure  a  purchaser  for  such 
bonds.  Street  v.  Craven  County 
Com'rs,  70  N.  C.  644;  Blanton  v.  Mc- 
Dowell County  Com'rs,  101  N.  C. 
532. 

"eGaddis  v.  Richland  County,  92 
111.  119;  Attorney  General  v.  City  of 
Salem,  103  Mass.  138;  Attorney  Gen- 
eral v.  Burrell,  31  Mich.  25;  People 
T.  Booth,  32  N.  Y.  397;  People  v. 
Clark,  53  Barb.  (N.  Y.)  171. 

•«  in    re    Central    Irr.    Dist.,    117 


Cal.  382,  49  Pac.  354;  Thomas  v. 
City  of  Grand  Junction,  13  Colo. 
App.  80,  56  Pac.  665;  Duval  County 
v.  Knight,  42  Fla.  366,  29  So.  408; 
Cushman  v.  Carver  County  Com'rs, 
19  Minn.  295  (Gil.  252),  following 
The  Chaska  Co.  v.  Carver  County 
Sup'rs,  6  Minn.  130  (Gil.  204);  Nin- 
inger  v.  Carver  County  Com'rs,  10 
Minn.  133  (Gil.  106). 

558  Roberts  &  Co.  v.  Taft  (C.  C. 
A.)  109  Fed.  825;  State  v.  West  Du- 
luth  Land  Co.,  75  Minn.  456.  Cer- 
tain contract  considered  and  held  not 
in  violation  of  Laws  1895,  c.  289,  § 
4,  forbidding  the  sale  of  certain 
bonds  at  less  than  their  par  value. 
Village  of  Ft.  Edward  v.  Fish,  86 
Hun,  548,  33  N.  Y.  Supp.  784;  Vil- 
lage of  Ft.  Edward  v.  Fish,  156  N. 
Y.  363;  Elyria  Gas  &  Water  Co.  v. 
City  of  Elyria,  57  Ohio  St.  374.  So 
held  with  reference  to  an  ordinance. 
Hunt  v.  Fawcett,  8  Wash.  396. 


§  217 


ISSUANCE    OF   SECURITIES. 


501 


holds  true  even  where  there  is  a  subsequent  decision  passing  upon 
the  questions  raised  and  establishing  the  validity  of  the  bonds.559 

§  217.    Their  payment. 

Negotiable  bonds  as  issued  by  public  corporations  may  have 
provision  made  for  their  payment  from  a  special  fund  or  special 
tax  levy  upon  specific  property,560  or  they  may  be  a  general  ob- 
ligation of  the  corporation  and  payable  from  its  general  rev- 
enues.561 In  the  former  case,  such  bonds  are  not  generally  held 
an  indebtedness  coming  within  the  meaning  of  the  constitutional 
provisions  but  simply  an  assignment  of  the  rights  of  the  public 
corporation  in  and  to  certain  sources  of  revenue.  The  holder  of 
such  bond  is  limited  in  his  recovery,  either  of  principal  or  interest, 
to  such  revenues  or  funds.562  Though  it  may  depend  upon  the 


559  City  of  Great  Falls  v.  Theis,  79 
Fed.  943.  After  discussing  the  busi- 
ness customs  of  brokers  in  bonds  the 
court  say:  "In  view  of  these  well- 
known  facts  and  in  accordance  with 
the  usages  of  the  country  in  such 
transactions,  it  is  necessary  in  order 
to  give  effect  to  the  intentions  of 
the  parties,  to  read  into  the  contract 
an  implied  condition  that  the  buyers 
should  not  be  bound  to  take  the 
bonds  unless  the  proceedings  of  the 
city  government  had  been  conducted 
in  substantial  conformity  with  the 
laws,  and  proper  records  had  been 
made  so  that  competent  lawyers  of 
good  reputation  would  be  able  to 
certify  to  the  validity  of  the  bonds. 
In  every  contract  to  sell  land  and 
give  a  good  and  sufficient  deed  there 
is  an  implied  warranty  for  a  mar- 
ketable title  and  the  vendor  cannot 
enforce  the  contract  against  his  ven- 
dee when  there  is  an  apparent  flaw 
in  his  title  for  in  such  a  case  the 
court  will  not  hazard  an  opinion  as 
to  whether  or  not  the  title  can  be 
sustained  if  it  should  become  the 
subject  of  litigation.  For  the  same 
reasons  the  courts  must,  in  such 


cases  as  the  one  under  consideration 
refuse  to  adjudge  a  party  liable  to 
pay  damages  for  refusing  to  accept 
municipal  bonds  without  marketable 
value  where  the  value  is  destroyed 
or  impaired  by  questions  of  legality 
arising  from  facts  shown  by  or  omis- 
sions in  the  plaintiff's  own  records." 

sso  United  States  v.  Macon  County, 
99  U.  S.  582;  Bates  v.  Gerber,  82 
Cal.  550,  22  Pac.  1115;  Davis  v.  City 
of  Des  Moines,  71  Iowa,  500. 

56i  white  v.  City  of  Decatur,  119 
Ala.  476,  23  So.  999.  Where  priority 
is  given  to  bond  holders  of  surplus 
revenues,  they  cannot  be  used  for 
the  payment  of  a  mortgage  to  the 
exclusion  of  bond  creditors. 

State  v.  Hannibal  &  St.  J.  R.  Co. 
(Mo.)  11  S.  W.  746;  Lewis  v.  Taylor, 
18  Ohio  Cir.  Ct.  R.  443;  Richardson 
v.  Marshall  County,  100  Tenn.  346, 
45  S.  W.  440.  The  payment  and  can- 
cellation of  municipal  bonds  held  as 
absolutely  extinguishing  them.  No 
subsequent  theft  and  recirculation 
can  make  them  valid  obligations 
against  the  maker. 

sea  Braun  v.  Benton  County 
Com'rs,  66  Fed.  476;  Goshen  High- 


502 


POWERS. 


217 


wording  of  the  security  whether  the  rule  holds  in  all  cases,  the 
indebtedness  may  be  for  a  special  purpose  and  still,  by  its  word- 
ing, payable  out  of  the  general  revenues  or  a  general  obliga- 
tion.563 The  payment  of  all  indebtedness  incurred  by  a  publie 
corporation  is  usually  made  at  its  fiscal  office,564  unless  by  express 
promise  in  the  evidence  of  indebtedness,  payment  is  arranged 


way  Com'rs  v.  Jackson,  165  111.  17; 
City  of  Valparaiso  v.  Gardner,  97 
Ind.  1;  Strieb  v.  Cox,  111  Ind.  299; 
Quill  v.  City  of  Indianapolis,  124 
Ind.  292;  City  of  New  Albany  v. 
McCulloch,  127  Ind.  500;  Davis  v. 
City  of  Des  Moines,  71  Iowa,  500; 
City  of  Clinton  v.  Walliker,  98  Iowa, 
655;  Kingsberry  v.  Pettis  County,  48 
Mo.  209;  Walker  v.  Munroe  County 
Com'rs,  11  Ind.  App.  285,  38  N.  E. 
1095;  City  of  Galveston  v.  Heard,  54 
Tex.  420;  Baker  v.  City  of  Seattle,  2 
Wash.  St.  576.  But  see  Carroll 
County  v.  United  States,  85  U.  S. 
(18  Wall.)  71;  United  States  v.  Clark 
County,  95  U.  S.  769;  United  States 
v.  Clark  County,  96  U.  S.  211;  Kim- 
ball  v.  Grant  County  Com'rs,  21  Fed. 
145;  City  of  Wyandotte  v.  Zeitz,  21 
Kan.  649;  State  v.  Fayette  County 
Com'rs,  37  Ohio  St.  526.  See,  also, 
authorities  cited  in  the  following 
note. 

BOS  United  States  v.  City  of  Ft. 
Scott,  99  U.  S.152.  Justice  Harlan  in 
the  opinion  in  this  case  said:  "The 
general  reference  upon  the  margin 
of  the  bonds,  to  the  ordinance  under 
which  the  improvement  was  project- 
ed should  not,  in  view  of  the  general 
powers  of  the  council,  as  declared  in 
the  statute,  be  held  as  qualifying  or 
lessening  the  unconditional  promise 
of  the  city,  set  forth  in  the  body  of 
the  bonds,  itself  to  pay  the  bonds, 
with  their  prescribed  interest,  at 
maturity.  The  agreement  is  that  the 
city  shall  pay  the  interest  and  prin- 
cipal at  maturity.  There  is  no  res- 


ervation, as  against  the  purchasers 
of  the  bonds,  of  a  right,  under  any 
circumstances,  to  withhold  payment 
at  maturity,  or  to  postpone  payment 
until  the  city  should  obtain,  by  spe- 
cial assessments  upon  the  improved 
property  the  means  with  which  to 
make  payment,  or  to  withhold  pay- 
ment altogether,  if  the  special  as- 
sessment should  prove  inadequate 
for  payment."  "Experience  informs 
us  that  the  city  would  have  met 
with  serious,  if  not  insuperable,  ob- 
stacles in  its  negotiations,  had  the 
bonds  upon  their  face  in  unmistak- 
able terms  declared  that  the  purchas- 
er had  no  security  beyond  the  as- 
sessments upon  the  particular  prop- 
erty improved.  If  the  corporate  au- 
thorities intended  such  to  be  the 
contract  with  the  holders  of  the 
bonds,  the  same  good  faith  which 
underlies  and  prevades  the  statute 
of  March  2,  1871,  required  an  ex- 
plicit avowal  of  such  purpose  in  the 
bond  itself,  or,  in  some  other  form, 
by  language  brought  home  to  the 
purchaser  which  could  neither  mis- 
lead nor  be  misunderstood."  Wood- 
bridge  v.  City  of  Duluth,  57  Minn. 
256;  Austin  v.  City  of  Seattle,  2 
Wash.  St.  667;  Bank  of  British  Co- 
lumbia v.  City  of  Port  Townsend,  16 
Wash.  450;  Fowler  v.  City  of  Su- 
perior, 85  Wis.  411. 

56*  Johnson  v.  Stark  County,  24 
111.  75;  Sherlock  v.  Village  of  Win- 
netka,  68  111.  530;  Evansville,  I.  &  C. 
Straight  Line  R.  Co.  v.  City  of  Ev- 
ansville, 15  Ind.  395;  Skinker  v.  But- 


218 


ISSUANCE    OF    SECURITIES. 


503 


for  elsewhere.665  Where  no  such  agreement  is  made,  the  corpo- 
ration cannot  be  compelled  to  pay  either  the  principal  or  interest 
of  bonds  at  other  than  the  regular  office  provided  for  the  making 
ef  disbursements.586  The  payment  of  bonds  when  their  validity 
is  established  is  obligatory  upon  the  corporation  and  its  officers 
and  where  discretionary  powers  are  not  vested  in  the  officials, 
either  as  to  the  time  or  manner  of  payment,  if  there  are  revenues 
which  can  be  devoted  to  the  purpose,  such  officials  cannot  refuse 
payment.  Mandamus  will  lie  against  them  in  case  of  refusal  to 
enforce  the  performance  of  duties  imposed  upon  them  by  law.59T 

§  218.    Time  of  payment. 

The  time  of  payment  is  fixed  under  authority  of  law  specifically 
determined  either  by  an  inspection  of  the  authority  itself  or  in- 


ter County,  112  Mo.  332;  Friend  v. 
City  of  Pittsburgh,  131  Pa.  305,  6  L. 
R.  A.  636. 

ses  Meyer  v.  City  of  Muscatine,  68 
U.  S.  (1  Wall.)  384;  Thomson  v. 
Lee  County,  70  U.  S.  (3  Wall.)  327; 
City  of  Lexington  v.  Butler,  81  U.  S. 
(14  Wall.)  282;  Lynde  v.  County  of 
Winnebago,  83  U.  S.  (16  Wall.)  6; 
Calhoun  County  Sup'rs  v.  Galbraith, 
99  U.  S.  214;  Town  of  Enfield  v.  Jor- 
dan, 119  U.  S.  680;  City  of  Cairo  v. 
Zane,  149  U.  S.  122;  Gray  v.  State, 
72  Ind.  567;  Maddox  v.  Graham,  59 
Ky.  (2  Mete.)  78;  Skinker  v.  Butler 
County,  112  Mo.  332.  Where  the  au- 
thority for  the  issue  of  funding 
bonds  is  silent  as  to  the  place  of 
payment,  the  power  to  designate  one 
beyond  the  limits  of  the  county  is 
implied. 

City  of  Vicksburg  v.  Lombard, 
51  Miss.  Ill;  Kunz  v.  School 
Dist.  No.  28,  11  S.  D.  578;  Austin  v. 
Gulf,  C.  &  S.  F.  R.  Co.,  45  Tex.  236. 

see  city  of  Los  Angeles  v.  Teed, 
112  Cal.  319;  People  v.  Tazewell 
County,  22  111.  147;  City  of  Pekin  v. 
Reynolds,  31  111.  529. 


567  Gray  v.  State,  72  Ind.  567.  "It 
is  claimed  *  *  *  that  as  the 
language  of  the  statute  is  merely 
permissive,  conferring  the  power 
and  authority  upon  the  officers  men- 
tioned without  in  terms  making  it 
their  duty  to  take  up  and  redeem 
the  bonds,  etc.,  they  have  a  discre- 
tion to  do  so  or  not  and  that,  there- 
fore, mandamus  will  not  lie  against 
them  to  compel  them  to  do  so.  But 
we  are  clear  in  the  opinion  that 
there  was  no  such  discretion  to  be 
exercised  by  the  officers  named.  It 
was  the  intention  of  the  legislature 
that  the  bonds  should  be  paid  and 
not  that  they  should  be  paid  or  left 
unpaid  at  the  option  of  the  officers 
named.  This  is  clearly  gathered 
from  the  tenor  of  the  entire  act. 
The  appropriation  of  money,  and 
the  authority  conferred  upon  the  of- 
ficers named  to  borrow  money  for 
the  purpose  of  the  act,  tend  to  repel 
the  idea  that  the  legislature  intend- 
ed to  leave  it  to  the  option  or  discre- 
tion of  the  officers  named,  whether 
to  pay  the  bonds  or  not."  Little 
River  Tp.  v.  Reno  County  Com'rs,  65 
Kan.  9,  68  Pac.  1105. 


504 


POWERS. 


§  219 


directly  by  action  of  public  officials  where  discretionary  powers 
are  given  to  them  in  this  respect ;  in  either  case,  the  obligation  to 
pay  exists  at  the  time  of  the  maturity  of  the  principal  of  such 
bonds  or  the  interest,  as  already  stated,  at  the  various  times  when 
installments  come  due  in  accordance  with  the  tenor  of  such  bonds 
and  coupons.568  Where  the  authority  expressly  designates  the 
maturity  of  the  bond,  such  a  provision  must  be  complied  with 
and  the  weight  of  authority  is  to  the  effect  that  bonds  issued  for 
a  longer  or  shorter  period  than  thus  required  by  statute  are  in- 
valid.569 The  time  of  maturity  may,  however,  be  discretionary 
with  the  officials  issuing  bonds,570  or  the  entire  issue  or  any  por- 
tion may  be  redeemable  at  the  pleasure  of  the  maker.571  If  bonds 
are  not  payable  before  the  date  of  maturity,  a  holder  cannot  be 
compelled  to  accept  payment  and  surrender  them.572 

§  219.    Medium  of  payment. 

From  the  face  of  the  bond  is  to  be  determined  the  medium  of 
its  payment  and  where  the  authority  or  the  bond  is  silent  as  to 


ees  McMullen  v.  Person,  102  Mich. 
608;  Town  of  Pontotoc  v.  Fulton,  79 
Miss.  511,  31  So.  102;  Kemp  v.  Town 
of  Hazlehurst,  80  Miss.  443,  31  So. 
908;  Ter.  v.  Hopkins,  9  Okl.  133;  City 
of  Memphis  v.  Memphis  Sav.  Bank, 
99  Tenn.  104,  42  S.  W.  16. 

569  Norton  v.  Town  of  Dyersburg, 
127  U.  S.  160;  Barnum  v.  Town  of 
Okolona,  148  U.  S.  393;  City  of  Alma 
r.  Guaranty  Sav.  Bank,  60  Fed.  203; 
Union  Pac.  R.  Co.  v.  Lincoln  County, 
3  Dill.  300,  Fed.  Gas.  No.  14,380;  Da- 
vis v.  Yuba  County,  75  Gal.  452;  Mc- 
Mullen v.  Person,  102  Mich.  608;  Al- 
pena  County  Sup'rs  v.  Simmons,  104 
Mich.  305;  McCormick  v.  Village  of 
West  Duluth,  47  Minn.  272;  Wood- 
ruff v.  Town  of  Okolona,  57  Miss. 
806;  Potter  v.  Town  of  Greenwich, 
92  N.  W.  662;  Hoag  v.  Town  of 
Greenwich,  133  N.  Y.  152;  People's 
Bank  of  St.  Paul  v.  School  Dist.  No. 
52,  3  N.  D.  496,  28  L.  R.  A.  642.  But 


compare  Rock  Creek  Tp.  v.  Strong, 
96  U.  S.  271. 

570  Chicago,  B.  &  Q.  R.  Co.  v.  City 
of  Aurora,  99  111.  205;  People's  Nat. 
Bank  of  Brattleboro  v.  Ayer,  24  Ind. 
App.  212;  Flagg  v.  City  of  Palmyra, 
33   Mo.  440;    Catron  v.  'La  Fayette 
County,   106    Mo.    659;    Singer   Mfg. 
Co.   v.   City  of   Elizabeth,   42  N.   J. 
Law,  249. 

571  Brenham  v.  German  American 
Bank,  144  U.  S.  173;  National  Bank 
of  Republic  v.  City  of  St.  Joseph,  31 
Fed.  216;  Stewart  v.  Henry  County, 
66  Fed.  127;   Roberts  &  Co.  v.  City 
of  Paducah,   95   Fed.   62;    Town   of 
Essex  v.  Day,  52  Conn.  483;  Turpin 
v.   Madison   County   Fiscal   Ct.,   105 
Ky.  226,  48  S.  W.  1085;  Ter.  v.  Hep- 
kins,   9  Okl.   133;    Nolan  County  v. 
State,  83  Tex.  182. 

572  Allentown  School  Dist.  v.  Derr, 
115  Pa.  439. 


§  220  ISSUANCE    OF   SECURITIES.  505 

this,  a  promise  to  pay  in  legal  tender  or  ' '  gold  coin  of  the  United 
States"  does  not  render  bonds  invalid.573 

§  220.    To  whom  payable. 

Negotiable  bonds  in  common  with  other  instruments  of  a  like 
character  are  usually  made  payable  to  bearer  or  order  with  pro- 
visions for  endorsement  in  blank  and  registration.  When  pay- 
able to  bearer  or  endorsed  in  blank  by  the  one  to  whom  orig- 
inally payable,  such  bonds  are  payable  to  bearer  and  the  holder 
is  entitled  to  payment.574  Where  provision  is  made  for  registra- 
tion when  registered  in  the  required  manner  and  by  the  proper 
officials,  they  then  become  payable  only  to  the  party  in  whose 
name  they  stand  upon  the  registration  books  of  the  trustee  or 

GTS  Woodruff  v.  State  of  Mississip-  socket  Inst.  for  Savings  (C.  C.  A.) 
pi,  162  U.  S.  291;  Moore  v.  City  of  58  Fed.  935;  Ashley  v.  Presque  Isle 
Walla  Walla,  60  Fed.  961;  Pollard  County  Sup'rs  (C.  C.  A.)  60  Fed.  65; 
v.  City  of  Pleasant  Hill,  3  Dill.  197,  West  Plains  Tp.  v.  Sage,  60  Fed. 
Fed.  Gas.  No.  11,253;  Judson  v.  City  943;  Pacific  Imp.  Co.  v.  City  of 
of  Bessemer,  87  Ala.  240,  4  L.  R.  A.  Clarksdale  (C.  C.  A.)  74  Fed.  528. 
742;  Lane  v.  Gluckauf,  28  Cal.  288,  A  bond  negotiable  in  form,  when 
87  Am.  Dec.  121;  Murphy  v.  City  of  not  so  authorized,  is  not  void  but 
San  Luis  Obispo,  119  Cal.  624,  39  simply  nonnegotiable. 
L.  R.  A.  444;  Atkinson  v.  Lanier,  69  D'Esterre  v.  City  of  Brooklyn,  90 
Ga.  460;  Heilbron  v.  City  of  Cuth-  Fed.  586;  Edwards  v.  Bates  County 
bert,  96  Ga.  312;  Churchman  v.  Mar-  (C.  C.  A.)  99  Fed.  905;  Evans  v. 
tin,  54  Ind.  380;  Farson  v.  Sinking  Cleveland  &  P.  R.  Co.,  21  Leg.  Int. 
Fund  Com'rs  of  Louisville,  97  Ky.  29,  Fed.  Gas.  No.  4,557;  Carpenter 
119;  Opinion  of  the  Court,  49  Mo.  v.  Greene  County,  130  Ala.  613,  29 
216;  Bond  of  Greenwald,  51  Tenn.  So.  194;  Blackman  v.  Lehman,  63 
(4  Heisk.)  453;  Winston  v.  City  of  Ala.  547.  Under  Ala.  Code,  §  2098, 
Ft.  Worth  (Tex.  Civ.  App.)  47  S.  W.  the  legal  title  to  municipal  bonds 
740;  Kenyon  v.  City  of  Spokane,  17  payable  to  bearer  passes  only  by  in- 
Wash.  57.  But  see  Skinner  v.  City  dorsement. 

of  Santa  Rosa,  107  Cal.  464,   29  L.        Clapp   v.   Cedar   County,   5    Iowa, 

R.  A.  512.  15;   Sioux  City  r.  Weare,  59  Iowa, 

574Amey    v.    Allegheny    City,    24  95;   School  Dist.  No.  40  v.  Gushing, 

How.  (U.  S.)  364;  Strong  v.  District  8  Kan.  App.  728;  Town  of  Lexington 

of  Columbia,  4  Mackey  (D.  C.)  242;  v.    Union    Nat.    Bank,    75    Miss.    1; 

Calhoun  County  Sup'rs  v.  Galbraith,  Manhattan    Sav.    Inst.    v.    Town    of 

99  U.  S.  214;  City  of  Ottawa  v.  First  East  Chester,  44  Hun  (N.  YJ   537; 

Nat.  Bank  of  Portsmouth,  105  U.  S.  Com.   v.  Allegheny   County   Com'rs, 

342;  Carter  County  v.  Sinton,  120  U.  37  Pa.  237;  City  of  Austin  v.  Nalle, 

S.  517;    City   of  Cadillac  v.   Woon-  85  Tex.  520. 


506 


POWERS. 


§  220 


municipality. ST8  But  a  provision  for  registration  does  not  pre- 
vent the  holder  of  unregistered  bonds  from  recovering  interest.37* 
The  fact  that  a  railroad  corporation  to  whom  aid  bonds  are  orig- 
inally voted  may  become  consolidated  with  another  corporation 
does  not  usually  release  the  public  corporation  issuing  such  bonds 
from  its  obligations  and  this  is  especially  true  where  there  is  a 
statutory  authority  permitting  the  consolidation  of  railroad  cor- 
porations at  the  time  of  the  issue  of  such  bonds.  It  has  been 
held  that  such  statutory  authority  must  be  considered  as  a  "silent 
factor"  in  determining  the  legal  rights  of  the  parties  to  such  a 
transaction.  The  bonds  then  become  payable  to  the  consolidated 
company  instead  of  that  company  to  whom  the  aid  was  originally 
granted.577 


BTS  Chapman  v.  City  Council  of 
Charleston,  30  S.  C.  549,  3  L.  R.  A. 
311.  See,  also,  Id.,  28  S.  C.  373,  13 
Am.  St.  Rep.  681. 

a™  st.  Louis  County  Com'rs  v.  Net- 
tleton,  22  Minn.  356.  In  this  case 
the  statute  allowed  the  payment  of 
interest  but  the  point  was  made  that 
interest  could  not  be  paid  even  un- 
der this  statute  on  unregistered 
bonds  because  it  provided  that  "All 
bonds  heretofore  issued  and  still  un- 
paid shall  be  registered  by  the  hold- 
er thereof."  The  court  said:  "Al- 
though the  language  is  in  form  im- 
perative when  we  consider  that  con- 
struing it  strictly  would  render  the 
act  of  doubtful  validity  we  think 
it  was  not  intended  to  require  a  reg- 
istration of  the  bonds  as  a  condition 
of  the  holder's  right  to  demand  the 
interest  but  was  intended  only  for 
the  convenience  of  those  bondhold- 
ers who  may  choose  to  avail  them- 
selves of  it  and  consequently  that  it 
was  not  intended  to  take  from  the 
county  commissioners  the  authority 
to  provide  for  paying  the  interest  on 
bonds  not  registered.  The  commis- 
sioners still  provide  for  raising,  by 
tax,  the  amount  required  to  pay  all 


the  interest  on  the  county  debt,  the 
county  treasurer  pays  to  the  state 
treasurer  the  amount  which  has 
been  certified  by  the  state  auditor  to 
the  county  auditor,  and  the  balance 
remains  in  the  county  treasury  to 
pay  the  interest  according  to  the 
terms  of  the  bonds  or  contracts  un- 
der which  the  debts  exist.  The  levy 
of  the  $12,000  for  railroad  bond  in- 
terest was  valid  and  the  court  be- 
low will  sustain  the  same." 

577  Pope  v.  Lake  County  Com'rs,  51 
Fed.  769.  "Any  person  or  corpora- 
tion subscribing  for  stock  in  a  rail- 
road company  in  aid  of  its  construc- 
tion does  so  with  the  knowledge  that 
such  company  may  become  merged 
into  a  new  consolidated  railroad  cor- 
poration. It  must  be  held  to  have 
been  in  the  contemplation  of  such 
subscriber  that  such  a  consolidation 
might  occur.  The  law  enters  as  si- 
lent factor  into  every  contract.  The 
subscriber  by  his  contract,  impliedly 
anthorizes  the  railroad  company  for 
whose  stock  he  has  subscribed  to 
consolidate  with  any  other  railroad 
company.  He  is  not  thereby  released 
from  liability,  but  with  his  implied 
consent  he  is  brought  into  the  same 


§  221 


ISSUANCE    OF    SECURITIES. 


507 


The  holder  of  negotiable  bonds,  however,  takes  them  subject 
to  all  conditions  which  may  affect  their  validity  arising  either 
from  lack  of  authority  or  irregularity  in  the  manner  of  their 
issue.578 


§  221.    The  payment  of  interest. 

A  public  corporation,  like  an  individual,  is  liable  for  the  in- 
terest upon  an  indebtedness  unless,  by  the  terms  of  the  instru- 
ment evidencing  such  debt,  it  is  relieved  from  its  payment.  The 
time,  the  manner  and  the  medium  of  payment  are  usually  pro- 
vided for  in  the  bond  or  the  coupon  which  is  a  separate  and  ex- 
press promise  to  pay  one  of  the  equal  installments  of  interest 
due  upon  the  principal  of  a  debt.579 


contractual  relations  with  the  con- 
solidated company  which  he  occu- 
pied with  the  company  for  whose 
stock  he  subscribed." 

sis  Otis  v.  Cullum,  92  U.  S.  447. 
Hughson  v.  Crane,  115  Cal.  404.  "If 
the  benefits  received  and  enjoyed  by 
the  district  under  his  performance 
of  the  contract  give  him  an  equitable 
right  of  recovery  therefor,  such  right 
is  independent  of  any  liability  of  the 
district  upon  the  bonds.  If  the 
bonds  were  issued  to  him  in  viola- 
tion of  the  statute,  they  cannot  in 
his  hands  be  valid  obligations 
against  the  district  even  though 
they  were  taken  in  payment  for  his 
work.  The  law  is  well  settled  that 
ene  dealing  with  a  municipal  cor- 
poration is  charged  with  a  knowl- 
edge of  all  the  limitations  upon  the 
power  of  its  officers  and  that  he 
can  have  no  right  of  action  upon  its 
written  obligation  if  it  was  entered 
into  in  disregard  of  statutory  re- 
quirements." 

579  Respublica  v.  Mitchell,  2  Ball. 
(Pa.)  101;  State  of  Louisiana  v. 
Pilsbury,  105  U.  S.  278;  State  v. 
Thompson,  10  Ark.  61;  Bates  v. 
Gerber,  82  Cal.  550;  Davis  v.  City  of 


Sacramento,  82  Cal.  562;  Kendall  v. 
Porter,  120  Cal.  106,  45  Pac.  333,  52 
Pac.  143;  Ellis  v.  Witmer,  134  Cal. 
249,  66  Pac.  301;  St.  Louis  County 
Com'rs  v.  Nettleton,  22  Minn.  356; 
Coler  v.  Santa  Fe  County  Com'rs,  6 
N.  M.  88,  27  Pac.  619;  Mall  v.  City 
of  Portland,  35  Or.  89,  56  Pac.  654. 

Bassett  v.  City  of  El  Paso,  88 
Tex.  168,  30  S.  W.  893.  A  city  or- 
dinance authorizing  the  issue  of 
bonds  and  providing  for  the  pay- 
ment of  interest  and  principal  is  a 
part  of  the  contract  between  the 
holder  of  the  bonds  and  the  munici- 
pality. State  v.  Rathbun,  22  Wash. 
651.  But  the  following  cases  hold 
that  in  the  absence  of  express  con- 
tract or  the  statutory  direction,  a 
public  corporation  is  under  no  obli- 
gation to  pay  interest  upon  the  prin- 
cipal or  interest  of  a  debt  after  its 
maturity.  Town  of  Mt.  Morris  v. 
Williams,  38  111.  App.  401,  following 
City  of  Pekin  v.  Reynolds,  31  111. 
529.  Also,  City  of  Chicago  v.  Eng- 
lish, 80  111.  App.  163. 

Sinking  Fund  Com'rs  of  Louisville 
v.  Zimmerman,  101  Ky.  432,  41  S.  W. 
428;  State  v.  Mayes,  28  Miss.  706. 
"As  a  general  rule  the  state  is  not 


508  POWERS.  §  722 

The  obligation  to  pay  interest  becomes  as  full  and  complete  an 
obligation  as  that  of  meeting  the  principal  when  it  becomes  due. 
The  usual  and,  generally,  the  only  source  of  revenue  of  a  public 
corporation  is  by  the  levying  and  collection  of  taxes.  If  consti- 
tutional or  statutory  provisions  do  not  prevent,  the  corporation 
must  levy  a  tax  sufficient  to  meet  the  interest  upon  its  indebted- 
ness. This  is  a  duty  which,  it  has  been  held,  is  mandatory  in 
its  character  and  the  performance  of  which,  and  on  the  part  of 
the  public  officials,  can  be  compelled  by  writ  of  mandamus.580 

The  levying  of  taxes  where  an  obligation  exists  is  not  consid- 
ered discretionary  on  the  part  of  the  corporation  when  within 
statutory  or  constitutional  limitations.  So  far  as  the  means  of 
payment  is  concerned,  the  courts  will  not  consent  to  a  willful  or 
dishonest  repudiation  of  legal  or  moral  obligations  and  a  failure 
on  the  part  of  public  officials  to  provide  for  the  payment  of  either 
principal  or  interest  of  a  debt  is  no  defense  in  an"  action  brought 
by  bondholders  to  enforce  such  obligation.  The  corporation 
cannot  be  released  from  its  liabilities  by  a  failure  to  provide  a 
means  of  payment  when  such  is  within  its  power.581 

§  222.    The  rule  as  to  the  payment  of  void  bonds. 

When  bonds  are  held  void,  either  for  want  of  authority  or 
other  reasons,  it  may  release  the  public  corporation  from  the 
obligation  to  pay  according  to  their  terms.  It  does  not,  how- 
ever, always  relieve  it  from  its  obligation  to  pay  the  debt  which 
may  arise  through  the  transaction.  The  authorities  are  quite 
unanimous  in  holding  that  where  bonds  have  been  issued,  sold 
and  the  proceeds  arising  from  such  sales  appropriated  by  the 

bound    to  pay   interest."    Attorney-  Sup'rs  v.  United  States,  71  U.  S.   (4 

General  v.  Cape  Fear  Nav.  Co.,   37  Wall.)    435;    and  Riggs   v.   Johnson 

N.  C.    (2   Ired.   Eq.)    444;    Milne  v.  County,  73  U.  S.  (6  Wall.)   166. 

Rempublicam,   3  Yeates    (Pa.)    102;  ssi  Knox  County  v.  Aspinwall,  21 

Auditorial   Board  v.  Aries,  15   Tex.  How.   (U.  S.)    539;   New  York  Life 

72.  Ins.  Co.  v.  Cuyahoga  County  Com'rs, 

Gsosibley    v.    City    of    Mobile,    3  106  Fed.  123;  Reis  v.  State,  133  Cal. 

Woods,   535,   Fed.   Gas.    No.   12,829;  593,  65  Pac.  1102,  reversing  59  Pac. 

Flagg  v.   City   of   Palmyra,   33   Mo.  298;  Moore  v.  City  of  New  Orleans, 

440;    St.  Joseph  &  D.  C.  R.  Co.   v.  32   La.  Ann.   726;    State  v.   City   of 

Buchanan   County   Ct,   39   Mo.   485.  New  Orleans,  32  La.  Ann.  763;  Mor- 

See,  also,  City  of  Memphis  v.  Brown,  rill    v.    Smith    County     (Tex.    Civ. 

97  U.   S.  300;    Rock  Island   County  App.)  33  S.  W.  899. 


§  222 


ISSUANCE    OF    SECURITIES. 


509 


public  corporation  to  its  proper  purposes,  there  exists  a  debt 
or  obligation  due  and  owing  from  the  corporation  to  the  party 
advancing  moneys  which  can  be  enforced  generally  in  an  action 
on  a  quantum  meruit  or  valebant  for  moneys  or  goods  had  and 
received.582 


582  Marsh  v.  Fulton  County,  77  U. 
S.  (10  Wall.)  676.  "The  obligation 
to  do  justice  rests  upon  all  persons, 
natural  and  artificial  and  if  a  coun- 
ty obtains  the  money  or  property  of 
others  without  authority,  the  law,  in- 
dependent of  any  statute,  will  com- 
pel restitution  or  compensation." 

In  City  of  Louisiana  v.  Wood,  102 
U.  (S.  294,  Waite,  C.  J.,  said:  "It 
would  certainly  be  wrong  to  permit 
the  city  to  repudiate  the  bonds  and 
keep  the  money  borrowed  on  their 
credit.  The  city  could  lawfully  bor- 
row. The  objection  goes  only  to  the 
way  it  was  done.  *  *  *  While 
therefore,  the  bonds  cannot  be  en- 
forced because  defectively  executed, 
the  money  paid  for  them  may  be  re- 
covered back." 

Read  v.  City  of  Plattsmouth,  107 
U.  S.  568.  A  purchaser  of  bonds  for 
full  value  without  notice  of  any  in- 
formality in  their  issue,  to  whom  the 
city  paid  the  interest  thereon  for 
four  years,  brought  suit  to  recover 
the  amount  of  the  coupons  then  due 
and  unpaid.  The  money  was  used  to 
erect  a  schoolhouse.  The  court  said: 
"As  the  City  of  Plattsmouth  was 
bound,  by  force  of  the  transaction 
to  repay  the  purchaser  of  its  void 
bonds  the  consideration  received  and 
used  by  it,  or  a  legal  equivalent  the 
statute  which  recognized  the  exist- 
ence of  that  obligation  and  by  con- 
firming the  bonds  themselves,  pro- 
vided a  medium  for  enforcing  it  ac- 
cording to  the  original  intention  and 
promise  cannot  be  said  to  be  a  spe- 


cial act  conferring  upon  the  city  any 
new  corporate  power." 

Gause  v.  City  of  Clarksville,  1  Fed. 
353;  Deyo  v.  Otoe  County,  37  Fed. 
246;  Bangor  Sav.  Bank  v.  City  of 
Stillwater,  49  Fed.  721;  Jefferson 
County  v.  Hawkins,  23  Fla.  223,  2 
So.  362.  A  legal  debt  cannot  be  paid 
by  the  issue  and  delivery  of  a  void 
bond. 

Brown  v.  City  of  Atchison,  39 
Kan.  37.  "Where  a  contract  is  en- 
tered into  in  good  faith  between  a 
corporation,  public  or  private,  and 
an  individual  person,  and  the  con- 
tract is  void,  in  whole  or  in  part, 
because  of  a  want  of  power  on  the 
part  of  the  corporation  to  make  it 
or  to  enter  into  it  in  the  manner  in 
which  the  corporation  enters  into  it, 
but  the  contract  is  not  immoral,  in- 
equitable, or  unjust,  and  the  con- 
tract is  performed  in  whole  or  in 
part  by  and  on  the  part  of  one  of 
the  parties,  and  the  other  party  re- 
ceives benefits  by  reason  of  such 
performance  over  and  above  any 
equivalent  rendered  in  return,  and 
these  benefits  are  such  as  one  party 
may  lawfully  render  and  the  other 
party  lawfully  receive,  the  party  re- 
ceiving such  benefits  will  be  required 
to  do  equity  towards  the  other  party 
by  either  rescinding  the  contract 
and  placing  the  other  party  in  statu 
quo,  or  by  accounting  to  the  other 
party  for  all  benefits  received,  for 
which  no  equivalent  has  been  ren- 
dered in  return;  and  all  this  should 
be  done  as  nearly  in  accordance  with 


310 


POWERS. 


§  223 


§  223.    Payment  of  securities  through  provisions  for  a  sinking 
fund. 

The  charter,  statutes  or  constitution  may  provide  that  before 
a  public  corporation  can  incur  an  indebtedness  either  through 
an  issue  of  negotiable  bonds  or  otherwise,  it  must  provide  for 
ultimate  payment  of  the  principal  by  the  creation  of  a  sinking 
fund,  so  termed.  This  fund  to  be  raised  by  imposing  a  certain 
annual  tax,  either  general  in  its  character  or  falling  upon  specific 
property,  the  accumulations  of  which,  it  is  calculated,  will 
at  the  time  the  indebtedness  falls  due  be  sufficient  to  meet 
it.583  Such  provisions,  however,  are  usually  held  mandatory  in 


the  terms  of  the  contract  as  the  law 
and  equity  will  permit." 

State  v.  Hart,  46  La.  Ann.  54; 
People  v.  Porter  &  Calvin  Tp.,  18 
Mich.  101;  State  v.  Dickerman,  16 
Mont.  278,  40  Pac.  698;  Town  of 
Lyons  v.  Chamberlin,  25  Hun  (N.  Y.) 
49;  City  of  Plattsmouth  v.  Fitzger- 
ald, 10  Neb.  401;  Hoag  v.  Town  of 
Greenwich,  133  N.  Y.  152.  Commis- 
sioners issued  bonds  payable  in 
twenty  years  instead  of  thirty  years 
as  required  by  the  statute;  it  was 
held  that  the  bonds  were  void  as 
euch,  but  as  the  commissioners  had 
the  authority  to  borrow  the  money 
which  the  bonds  were  meant  to  se- 
cure, they,  by  doing  so,  bound  the 
town  to  repay  it;  and  it  appearing 
that  the  parties,  both  borrower  and 
lender,  acted  in  good  faith  and  with 
the  intention  to  comply  with  the 
statute,  a  provision  on  the  part  of 
the  town  to  repay  the  loan  at  the 
time  and  in  the  manner  prescribed 
by  the  statute  would  be  implied  and 
an  action  thereon  against  the  town 
was  maintainable.  Borough  of 
Rainsburg  v.  Fyan,  127  Pa.  74,  4  L. 
R.  A.  336;  Livingston  v.  School  Dist. 
No.  7,  11  S.  D.  150,  76  N.  W.  301; 
Paul  v.  City  of  Kenosha,  22  Wis. 
266;  Citizens'  Bank  v.  City  of  Ter- 


rell, 78  Tex.  456,  14  S.  W.  1003.  But 
see  City  of  Litchfield  v.  Ballou,  114 
U.  S.  190;  Norton  v.  Town  of  Dyers- 
burg,  127  U.  S.  160;  Morton  v.  City 
of  Nevada,  41  Fed.  582;  McPhersoa 
v.  Foster  Bros.,  43  Iowa,  48;  Town 
of  Milan  v.  Tennesee  Cent.  R.  Co., 
79  Tenn.  329. 

sss  Siebert  v.  Lewis,  122  U.  S.  284; 
Fazende  v.  City  of  Houston,  34  Fed. 
94.  A  municipal  corporation  under 
an  ordinance  authorized  by  their 
charter,  issued  bonds  to  provide  a 
fund  for  building  a  market  house. 
By  their  terms  the  revenue  of  the 
market  was  to  be  devoted  to  the  pay- 
ment of  the  interest  on  the  bonds 
and  to  the  formation  of  a  sinking 
fund  to  redeem  them.  As  the  ordi- 
nance was  authorized  by  the  charter 
and  therefore  valid,  it  constituted 
a  contract  between  the  holders  of 
the  bonds  and  the  city  and  subse- 
quent ordinances  making  other  dis- 
position of  the  market  revenue  were 
void  and  so  much  of  a  charter  grant- 
ed the  city  after  the  issue  of  the 
bonds  as  authorized  the  city  council 
to  divert  any  of  such  revenue  from 
the  special  fund  created  in  the  ordi- 
nance under  which  the  bonds  were 
issued  was  inoperative,  as  impairing 
the  obligation  of  a  contract  in  viola- 


§  223 


ISSUANCE    OF    SECURITIES. 


511 


their  character  in  so  far  as  the  levying  of  the  sinking  fund  tax 
depends  upon  the  independent  action  of  subordinate  officials 
from  time  to  time.  Bonds  issued  under  such  provisions,  legal 
at  the  time  of  issue,  cannot  be  rendered  void  or  become  worthless 
by  the  neglect  of  a  public  duty  devolving  upon  officials  of  public 
corporations.884 


tion  of  the  constitution.  Quaker 
City  Nat.  Bank  v.  Nolan  County,  59 
Fed.  660.  County  bonds  are  invalid, 
even  in  the  hands  of  bona  fide  pur- 
chasers, when  issued  without  a  com- 
pliance with  a  constitutional  re- 
quirement that  provision  shall  be 
made,  at  the  time  of  incurring  any 
debt  for  levying  a  sufficient  tax  to 
create  a  sinking  fund  of  two  per 
cent  in  addition  to  meeting  the  in- 
terest. Affirmed  in  (C.  C.  A.)  66 
Fed.  883;  Millsaps  v.  City  of  Terrell, 
60  Fed.  193;  Lee  County  v.  Robert- 
son, 66  Ark.  82,  48  S.  W.  901.  Mon- 
eys raised  through  the  imposition 
of  taxes  provided  for  the  payment  of 
interest  cannot  be  appropriated  for 
general  purposes.  Kendall  v.  Por- 
ter, 120  Cal.  106,  45  Pac.  333,  52  Pac. 
143;  Wilkins  v.  City  of  Waynesboro, 
116  Ga.  359,  42  S.  E.  767;  Sinking 
Fund  Com'rs  of  Louisville  v.  Zim- 
merman, 10  Ky.  L.  R.  689,  41  S.  W. 
428;  O'Bryan  v.  City  of  Owensboro, 
24  Ky.  L.  R.  469,  68  S.  W.  858;  Wil- 
son v.  City  of  Shreveport,  29  La. 
Ann.  673;  Knox  v.  City  of  Baton 
Roug*,  36  La.  Ann.  427;  Kelly  v. 
City  of  Minneapolis,  63  Minn.  125, 
30  L.  R.  A.  281;  Baily  v.  City  of 
Philadelphia,  184  Pa.  594;  Galbreath 
v.  City  of  Knoxville  (Tenn.)  59  S. 
W.  178;  Basset  County  v.  City  of  El 
Paso,  88  Tex.  168,  30  S.  W.  893; 
Conklin  v.  City  of  El  Paso  (Tex.  Civ. 
App.)  44  S.  W.  879.  See,  however, 
National  Life  Ins.  Co.  v.  Board  of 
Education  of  Huron,  62  Fed.  778; 
Marion  County  v.  Coler,  67  Fed.  60; 


and  Basset  v.  City  of  El  Paso  (Tex. 
Civ.  App.)  28  S.  W.  554,  holding 
bonds  valid  though  issued  without 
a  provision  for  the  constitutional 
sinking  fund  or  annual  tax. 

The  states  of  California,  Idaho,  Il- 
linois, Kentucky,  Missouri,  New 
York,  Pennsylvania,  South  Dakota, 
Texas  and  West  Virginia  have  con- 
stitutional provisions  requiring  eith- 
er the  creation  of  a  sinking  fund  or 
the  levying  of  an  annual  tax  for  the 
payment  of  the  principal  and  inter- 
est of  the  bonds  as  it  falls  due. 

In  Wade  v.  Travis  County,  174  U.  S. 
499,  the  court  in  sustaining  the  val- 
idity of  bonds  held  that  in  determin- 
ing what  laws  of  a  state  will  be  re- 
garded as  rules  of  decision,  that  it 
would  look  not  only  to  its  constitu- 
tions and  statutes  but  at  the  decisions 
of  its  highest  court  giving  construc- 
tion to  them  and  that  if  there  was 
any  inconsistency  in  the  opinion  of 
such  highest  court,  the  decisions  of 
the  United  States  supreme  court 
would  follow  the  latest  settled  adju- 
dications in  preference  to  earlier 
ones  unless  such  earlier  decisions 
sustained  the  validity  of  bonds  while 
the  later  ones  declared  them  invalid, 
in  which  case  the  earlier  decisions 
would  be  followed.  The  supreme 
court  announced  its  readiness  to  fol- 
low that  line  of  decisions  sustaining 
the  validity  of  bonds  irrespective  of 
the  time  rendered. 

ss*  Wade  v.  Travis  County,  174  U. 
S.  499,  reversing  Wade  v.  Travis 
County,  72  Fed.  985;  Wade  v.  Travig 


512 


POWERS. 


§  223 


The  duty  to  levy  a  sinking  fund  tax  or  a  general  tax  for  the 
payment  of  bonds  may  be  compelled  by  the  proper  writ  directed 
against  designated  public  officials.585  A  provision  for  the  estab- 
lishment and  maintenance  of  a  sinking  fund  is  a  contract  between 
the  bondholder  as  creditor  and  the  public  corporation,  and  one 
which  cannot  be  impaired  or  destroyed  by  subsequent  legislation 
or  action ;  it  is  a  contract  within  the  meaning  of  the  Federal  con- 
stitution.586 


County  (C.  C.  A.)  81  Fed.  742;  Mari- 
on County  v.  Coler,  67  Fed.  70. 

Rowland  v.  San  Joaquin  County 
Sup'rs,  109  Cal.  152;  City  of  Houston 
v.  Voorhies,  70  Tex.  356,  8  S.  W.  109; 
Howard  v.  Smith,  91  Tex.  8,  38  S. 
W.  15.  Upon  a  failure  to  provide 
the  sinking  fund  as  required  by  the 
constitution  of  Texas  at  the  time  of 
the  issue  of  bonds  or  the  making 
of  a  contract,  such  bonds  or  contract 
will  be  void.  This  ruling,  however, 
was  reversed  by  the  supreme  court 
of  the  United  States  in  the  case  of 
Wade  v.  Travis  County,  cited  above, 
where  the  same  question  was  raised. 
See,  also,  Nalle  v.  City  of  Austin 
(Tex.  Civ.  App.)  42  S.  W.  780; 
Mitchell  County  v.  City  Nat.  Bank, 
91  Tex.  361. 

ess  Von  Hoffman  v.  City  of  Quincy, 
71  U.  S.  (4  Wall.)  535;  City  of  Ga- 
lena v.  Amy,  72  U.  S.  (5  Wall.)  705; 
Cape  Girardeau  County  Ct.  v.  Hill, 
118  U.  S.  68;  Kennedy  v.  City  of 
Sacramento,  19  Fed.  580.  But  in 
United  States  v.  Macon  County,  99 
U.  S.  582,  Chief  Justice  Waite  said: 
"We  have  no  power  by  mandamus  to 
compel  a  municipal  corporation  to 
levy  a  tax  which  the  law  does  not 
authorize.  We  cannot  create  new 
rights  or  confer  new  powers.  *  *  * 
In  this  case  it  appears  that  the  spe- 
cial tax  of  one-twentieth  of  one  per 
cent  has  been  regularly  levied,  col- 
lected and  applied,  and  no  complaint 
is  made  as  to  the  levy  of  one  half  of 


one  per  cent  for  general  purposes. 
What  is  wanted  is  the  levy  beyond 
these  amounts,  and  that,  we  think, 
under  existing  laws,  we  have  no 
power  to  order." 

United  States  v.  Macon  County 
Ct.,  35  Fed.  483;  Haumeister  v.  Por- 
ter (Cal.)  16  Pac.  187,  following 
Bates  v.  Porter,  74  Cal.  224,  15  Pac. 
732. 

Dillon,  Mun.  Corp.  §  855.  "The 
proper  mode  of  enforcing  or  com- 
pelling the  performance  of  the  duty 
of  levying  and  collecting  taxes  in 
such  cases  is  by  mandamus  and  not 
by  a  bill  in  equity."  Walkley  v. 
City  of  Muscatine,  73  U.  S.  (6  Wall.) 
481;  Rees  v.  City  of  Watertown,  86 
U.  S.  (19  Wall.)  107. 

Federal  courts  have  no  power  to 
issue  a  writ  of  mandamus  as  an  orig- 
inal proceeding,  a  bondholder  should 
first  obtain  judgment.  Bath  County 
v.  Amy,  80  U.  S.  (13  Wall.)  244; 
Heine  v.  Carroll-Madison  Levee 
Com'rs,  86  U.  S.  (19  Wall.)  655; 
Greene  County  v.  Daniel,  102  U.  S. 
187;  Osborne  v.  Adams  County 
Com'rs,  7  Fed.  441.  Though  in  most 
of  the  state  courts  a  prior  judgment 
is  not  always  held  necessary  in  or- 
der to  obtain  a  mandamus.  Riley  v. 
Garfield  Tp.,  54  Kan.  463;  Flagg  v. 
City  of  Palmyra,  33  Mo.  440;  Com. 
v.  Select  &  Common  Councils  of 
Pittsburgh,  34  Pa.  496. 

sse  Von  Hoffman  v.  City  of  Quincy, 
71  U.  S.  (4  Wall.)  535.  The  court  in 


224 


ISSUANCE    OF   SECURITIES. 


513 


§  224.    The  duty  to  levy  taxes  for  the  payment  of  interest  or 
principal  of  negotiable  bonds. 

In  a  preceding  section587  the  statement  has  been  made  that 
upon  the  creation  of  a  valid  obligation,  there  arises  the  moral  and 
legal  duty  on  the  part  of  a  public  corporation  to  levy  taxes  or 
make  other  provisions  for  the  payment  of  such  obligation.  The 
authority  granted  the  corporation,  so  it  is  held,  to  issue  interest- 
bearing  negotiable  bonds,  carries  with  it  the  implied  power  to 
levy  taxes  to  pay  principal  and  interest.688  The  power  may  be 
expressly  given,  but  if  not,  it  is  held  to  exist  as  an  implied  one 
and  of  such  a  character  as  to  constitute  a  contract  between  the 
bondholder  and  the  corporation  which  cannot  be  affected  or  de- 
stroyed until  the  contract  is  satisfied.589  A  public  corporation 


its  opinion  in  this  case  in  part  said: 
"It  is  equally  clear  that  where  a 
state  has  authorized  a  municipal  cor- 
poration to  contract  and  to  exercise 
the  power  of  local  taxation  to  the 
extent  necessary  to  meet  its  engage- 
ments, the  power  thus  given  cannot 
be  withdrawn  until  the  contract  is 
satisfied.  The  state  and  the  corpo- 
ration in  such  cases  are  equally 
bound.  The  power  given  becomes  a 
trust  which  the  donor  cannot  annul, 
and  which  the  donee  is  bound  to 
execute;  and  neither  the  state  nor 
the  corporation  can  any  more  im- 
pair the  obligation  of  the  contract 
in  this  way  than  in  any  other." 
Citing,  People  v.  Bond,  10  Cal.  570. 
Dominick  v.  Sayre,  5  N.  Y.  Super. 
Ct.  (3  Sandf.)  555;  Maenhaut  v. 
City  of  New  Orleans,  3  Woods,  1, 
Fed.  Gas.  No.  8,940;  People  v.  Du- 
bois,  19  111.  222. 

State  v.  Cardozo,  8  S.  C.  (8  Rich.) 
71.  A  pledge  of  receipts  from  spe- 
cified sources  to  the  payment  of  the 
principal  and  interest  of  certain 
bonds  made  at  the  time  of  their  is- 
sue becomes  a  part  of  the  contract 
with  the  holders  of  such  bonds  and 
the  city  has  no  right  under  art.  1, 

Abb.  Corp.— 33. 


§  10,  of  the  constitution  of  the  Unit- 
ed States  to  impair  the  obligation 
of  a  contract  by  devoting  this  fund 
to  other  purposes.  See,  also,  author- 
ities cited,  §  217. 

587  Section  221. 

ess  Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 
655;  Rails  County  Ct.  v.  United 
States,  105  U.  S.  733;  United  States 
v.  North  Carolina,  136  U.  S.  211. 
But  there  exists  no  implied  liabili- 
ty on  the  part  of  a  city  to  pay  inter- 
est on  its  bonds  after  maturity.  Sib- 
ley  r.  City  of  Mobile,  4  Am.  Law. 
T.  Rep.  (N.  S.)  226,  Fed.  Gas.  No. 
12,829;  Young  v.  Tipton  County 
Com'rs,  137  Ind.  323,  36  N.  E.  1118; 
State  v.  Macon  County  Ct.,  68  Mo. 
29.  A  purchaser  of  bonds  is,  howev- 
er, chargeable  with  knowledge  of 
the  limitation  in  the  statutes  under 
the  authority  of  which  they  are  is- 
sued in  regard  to  the  rate  of  taxa- 
tion which  may  be  imposed  for  their 
payment.  This  provision  is  regard- 
ed as  a  part  of  the  contract  between 
himself  and  the  county.  Com.  v. 
Allegheny  County  Com'rs,  32  Pa. 
218. 

689  Von  Hoffman  v.  City  of  Quincy, 


514  POWERS.  §  224 

may  be  compelled  by  mandamus  to  levy  the  necessary  taxes  for 
the  payment  of  either  interest  or  principal  notwithstanding  the 
fact  that  the  legislature  of  the  state  may  have  assumed  or  at- 
tempted to  repeal  the  authority  to  levy  such  taxes.590  A  bond  by 
its  terms  made  payable  from  a  fund  raised  in  a  specific  manner 
or  from  taxes  levied  upon  specific  property  and  not  so  phrased 
as  to  constitute  a  general  obligation  of  the  public  corporation 
issuing  it  is  payable  only  from  such  fund  or  taxes.  The  obliga- 
tion exists  only  to  pay  the  net  proceeds  of  such  taxes  or  the 
amount  which  may  be  available  in  such  fund.691 

If  negotiable  bonds  are  phrased  as  general  obligations  of  a 
municipality,  although  they  may  contain  provisions  for  their  pay- 
ment from  a  special  fund  or  tax  upon  specific  property  as  in  the 
case  of  "local  improvement  bonds,"  the  authorities  are  quite 
uniform  in  holding  that  upon  the  exhaustion  of  such  special  fund 
or  tax  levy,  the  general  revenues  of  the  corporation  can  be  drawn 
upon  to  meet  the  obligation.592  The  promise  to  pay  is  the  pri- 
mary contract;  the  obligation  on  the  part  of  the  municipality  to 
raise  a  special  fund  or  levy  special  taxes  is  a  separate  and  inde- 
pendent one,  the  failure  to  perform  which  does  not  or  cannot 
affect  the  validity  of  negotiable  bonds. 

These  rules,  however,  may  not  apply  where  the  bond  lacks 
some  or  all  of  the  requisites  of  negotiable  paper,  being  uncertain 
as  to  the  time  of  payment  of  either  principal  or  interest.593 

71  U.  S.  (4  Wall.)  535;  Buck  v.  Peo-  City  of  Altoona,  200  Pa.  15,  49  Atl. 

pie,  78  111.  560.  367.     "Even  when  a  special  tax  is 

690  Von  Hoffman  v.  City  of  Quincy,  provided,  the  holder  is  not  limited 

71   U.    S.    (4   Wall.)    535;    Hicks   v.  to  such  a  tax,  unless  it  is  provided 

Cleveland,   106   Fed.    459;    Bates   v.  they  shall  not  be  paid  in  any  other 

Gregory  (Cal.)  22  Pac.  683.  manner.     Such  bonds  are  the  debts 

RSI  Braun      v.      Benton      County  of  the  corporation  and  after  the  ap- 

Com'rs,  66  Fed.  476;  State  v.  Tram-  plication  of  the  proceeds  of  a  special 

mel,  106  Mo.  510;  McCless  v.  Meek-  levy  the  holder  is  entitled  to  have 

Ins,  117  N.  C.  34;  Baker  v.  Meacham,  the  balance  paid  out  of  the  general 

18  Wash.  319.     See,  also,  §  217.  funds  of  the  corporation."     Simon- 

"2  United  States  v.  Knox  County,  ton,    Mun.    Bonds,    §    134;     United 

51  Fed.  880,  following  United  States  States  v.  Clark  County,  96  U.  S.  211; 

r.  Clark  County,  96  U.  S.  211;  United  Avery  v.  Job,  25   Or.   512,   36   Pac. 

States   v.   Macon   County,    99   U.   S.  293. 

582;  and  Knux  County  Ct.  v.  United  »»3  Washington     County     y.     Wil- 

States,    109   U.    S.    229;    Vickrey   v.  liams,  111  Fed.  801. 
Sioux  City,  115  Fed.  437;   Gable  v. 


§   225  ISSUANCE    OF    SECURITIES.  515 

§  225.    Rights  of  a  holder  to  maintain  an  action. 

The  bona  fide  holder  of  negotiable  bonds  has  the  right  to  main- 
tain an  action  against  a  corporation  issuing  them  upon  its  failure 
to  comply  with  the  terms  of  the  contract  they  contain.  This 
right  is  not  affected  by  a  failure  of  corporate  officials  to  perform 
their  duties.  The  obligation  on  the  part  of  the  public  corpora- 
tion exists  independent  of  the  performance  of  official  duties  by 
its  agents  from  time  to  time594  even  if  the  bonds  in  question  are 
those  known  as  ''local  improvement"  bonds  payable  from  a  spe- 
cial fund  or  the  proceeds  of  special  taxes  or  assessments.  Such 
fact  does  not  prevent  the  holder  from  maintaining  an  action  at 
law  to  enforce  collection.595  The  statute  of  limitations,  however, 
may  be  pleaded  as  a  defense  in  an  action  either  on  the  principal 
of  a  municipal  bond  or  a  coupon  separate  or  attached.596 

If  the  bonds  in  question  are  of  an  issue  partly  void  as  in  ex- 
cess of  legal  authority,  the  right  of  a  holder  to  collect  will  de- 
pend upon  the  policy  of  the  state  which  may  be  either  that  the 
excess  should  be  held  entirely  void  or  that  it  should  be  distrib- 
uted among  the  holders  of  the  entire  issue.  This  question  of 
authority  has  been  considered  in  a  preceding  section.591 

591  Robertson  v.  Elaine  County,  85  as   between   a  municipality   issuing 

Fed.  735.     The  statute  of  limitations  local    improvement    bonds    payable 

may  be  pleaded  as  a  defense  to  an  from  a  special  fund  and  the  holder 

action  on  municipal   bonds.     Marsh  of  such  bonds. 

v.  Town  of  Little  Valley,  64  N.  Y.        Mather   v.  City  &  County  of  San 

112;  Thornburgh  v.  City  of  Tyler,  16  Francisco    (C.   C.   A.)    115   Fed.   37. 

Tex.  Civ.  App.  439,  43  S.  W.  1054.  In  an  action  on  such  bonds  it  is  un- 

595  Waite  v.   City  of   Santa   Cruz,  necessary  to  join  as  parties  defend- 

75  Fed.  967;  Shepard  v.  Tulare  Irr.  ant  with   the   maker  of   the   bonds 

Dist.,  94  Fed.  1;  Washington  County  the  owners  of  property  upon  which 

v.   Williams,    111    Fed.    801.     Under  taxes   for  their  payment  are  to  be 

such    circumstances,    however,    the  levied.      Hammond     v.     Place,     116 

plaintiff  is  limited  in  his  right  of  re-  Mich.  628,  74  N.  W.  1002;   Murdock 

covery    to    the    amount    under    the  v.  Aikin,  29  Barb.  (N.  Y.)  59. 
terms  of  the  contract.  ooe  Clark   v.    Iowa  City,   87   U.   S. 

Farson    v.    Sioux    City,    106    Fed.  (20  Wall.)  583;  Amy  v.  City  of  Du- 

278.     A  court  of  equity  may  require  buque,    98    U.    S.   470;    Underbill   y. 

an  accounting  and  an  enforcement  Trustees  of  Sonora,  17  Gal.  172. 
of  the  trust  which,  it  is  held,  exists       597  See  §  203. 


516 


POWERS. 


§  226 


V.    WABBANTS  AND  MISCELLANEOUS  EVIDENCE  OF  INDEBTEDNESS. 
§  226.    Warrants;  definition;  by  whom  drawn. 

A  public  corporation  may  incur  an  indebtedness  which,  either 
at  the  time  of  its  incurrment  or  upon  the  making  of  an  appro- 
priation for  its  payment,  may  be  evidenced  by  an  obligation  or 
written  promise  to  pay,  commonly  called  a  warrant.  This  is  an 
instrument  in  writing  executed  by  the  proper  officials  acknowl- 
edging the  indebtedness  and  directing  the  officials  in  charge  of 
the  fund  from  which  it  is  payable  to  pay  the  same  on  demand 
or  at  some  specified  date.688  The  power  to  issue  in  anticipation 
of  revenues  for  the  necessary  corporate  expenses  is  usually  im- 
plied ;599  this  is  not  so  when  issued  in  anticipation  of  taxes  levied 
but  uncollected  and  where  they  are  of  such  a  character  as 
to  be  considered  under  such  circumstances,  a  "debt"  or  "indebt- 


698  City  Council  of  Nashville  v. 
Ray,  86  U.  S.  (19  Wall.)  468;  City 
of  Little  Rock  v.  United  States  (C. 
C.  A.)  103  Fed.  418;  City  of  Spring- 
field v.  Edwards,  84  111.  626;  Law  v. 
People,  87  111.  385;  Shawnee  County 
Com'rs  v.  Carter,  2  Kan.  109 ;  Burrton 
v.  Harvey  County  Sav.  Bank,  28 
Kan.  390.  Cities  of  the  third  class 
may  anticipate  the  revenues  of  the 
year,  and  in  payment  of  a  debt, 
whether  antecedent  or  one  present- 
ly contracted,  issue  time  warrants, 
payable  at  such  time  during  the 
current  year  as  the  revenues  may 
reasonably  be  expected  to  be  col- 
lected. City  of  Alpena  v.  Kelley, 
97  Mich.  550;  Warren  County  Sup'rs 
v.  Klein,  51  Miss.  807;  Aull  Sav. 
Bank  v.  City  of  Lexington,  74  Mo. 
104;  Slingerland  v.  City  of  Newark, 
54  N.  J.  Law,  62 ;  State  v.  Parkinson, 
5  Nev.  15;  City  of  Terrell  v.  Des- 
saint,  71  Tex.  770;  Daggett  v,  Lynch, 
18  Utah,  49.  But  there  is  an  implied 
power  to  issue  interest-bearing  war- 
rants. Ivinson  v.  Hance,  1  Wyo. 
270. 

The  grant  of  authority  to  make 


a  contract,  it  has  been  held,  carries 
with  it  the  implied  power  to  issue 
warrants  or  orders  in  payment  of 
the  obligations  of  the  contract.  See 
the  following  cases:  Kearney  Coun- 
ty Com'rs  v.  McMaster  (C.  C.  A.) 
68  Fed.  177;  Speer  v.  Kearney  Coun- 
ty Com'rs  (C.  C.  A.)  88  Fed. '749; 
Allen  v.  Town  of  Lafayette,  89  Ala. 
641,  9  L.  R.  A.  497;  Heal  v.  Jeffer- 
son Tp.,  15  Ind.  431;  Clayton  v. 
McWilliams,  49  Miss.  311;  and  San 
Patricio  County  v.  McClane,  58  Tex. 
243. 

599  Thomas  v.  City  of  Richmond, 
79  U.  S.  (12  Wall.)  349;  Brown  v. 
Sherman  County  Com'rs,  5  Fed.  274; 
Bangor  Sav.  Bank  v.  City  of  Still- 
water,  46  Fed.  899;  Allen  v.  Town 
of  La  Fayette,  89  Ala.  641,  9  L.  R. 
A.  497;  Lindsey  v.  Rottaken,  32  Ark. 
619;  Cothran  v.  City  of  Rome,  77  Ga. 
582;  Fuller  v.  City  of  Chicago,  89 
111.  282;  Fuller  v.  Heath,  89  111.  296; 
Dively  v.  City  of  Cedar  Falls,  21 
Iowa,  565;  Long  v.  Boone  County, 
32  Iowa,  181;  Hooper  v.  Ely,  46  Mo. 
505;  Cheeney  v.  Inhabitants  of 
Broofcfield,  60  Mo.  53. 


§  226 


WARRANTS,  ETC. 


517 


edness."  The  issue  of  warrants  is  the  method  by  which  the  or- 
dinary and  current  expenses  of  a  public  corporation  are  paid 
from  current  revenues;  funds  for  their  payment  are  usually  im- 
mediately available;  they  are  commonly  drawn  in  pursuance  of 
direct  charter  or  statutory  authority  that  may  or  may  not  specify 
the  required  details  preliminary  to  their  issue.  Without  such 
charter  or  statutory  provisions,  it  is  clear  that  public  officials 
have  no  power  to  bind  their  principal  in  this  respect.600 

Public  corporations  exercise  their  powers  by  and  through 
agents  of  limited  or  special  authority  authorized  to  act  for  and 
on  their  behalf  only  concerning  those  matters  which  by  some 
express  provision  of  the  law  may  be  given  to  them  to  transact. 
That  a  warrant  be  valid,  it  is  necessary  then  that  it  shall  be  is- 
sued or  drawn  by  the  proper  official,601  and  authorized,  audited 


eoo  People  v.  El  Dorado  County 
Sup'rs,  11  Cal.  170;  Stratton  v. 
Green,  45  Cal.  149;  People  v.  Canty, 
55  111.  33;  Home  v.  Mehler,  23  Ky. 
L.  R.  1176,  64  S.  W.  918;  Flagg 
r.  Parish  of  St.  Charles,  27  La.  Ann. 
319;  Hooper  v.  Ely,  46  Mo.  505.  A 
county  warrant  cannot  be  issued  to 
reimburse  sureties  for  moneys  ex- 
pended by  them  in  bringing  back  a 
defaulting  and  absconding  county 
treasurer.  Aull  Sav.  Bank  \.  City 
of  Lexington,  74  Mo.  104. 

6oi  Kearney  County  Com'rs  v.  Mc- 
Master  (C.  C.  A.)  68  Fed.  177;  Con- 
nor v.  Morris,  23  Cal.  447.  The  au- 
ditor of  the  county  is  the  mere  clerk 
of  the  board  of  supervisors;  and  he 
has  no  power  or  authority  to  draw 
his  warrant  on  the  county  treasurer 
for  the  payment  of  a  claim  unless 
the  board  of  supervisors  have  made 
an  express  order  that  it  be  paid. 
Stoddard  v.  Benton,  6  Colo.  508; 
Clark  v.  City  of  Des  Moines,  19 
Iowa,  199;  Clark  v.  Polk  County, 
19  Iowa,  248;  Tippecanoe  County 
€om'rs  r.  Cox,  6  Ind.  402;  Leaven- 
worth  County  Com'rs  v.  Keller,  6 
Kan.  510;  Alberts  v.  Torrent,  98 


Mich.  512;  Bailey  v.  City  of  Phila- 
delphia, 167  Pa.  569 ;  Dennis  v.  Table 
Mountain  Water  Co.,  10  Cal.  369; 
Newgass  v.  City  of  New  Orleans, 
42  La.  Ann.  163;  Hull  v.  Inhab- 
itants of  Berkshire,  26  Mass.  (9 
Pick.)  553;  Saline  County  v.  Wil- 
son, 61  Mo.  237;  State  v.  Collins, 
21  Mont.  448,  53  Pac.  1114;  Oakley 
v.  Valley  County,  40  Neb.  900,  fol- 
lowing Walsh  v.  Rogers,  15  Neb. 
309;  Halstead  v.  City  of  New  York, 
5  Barb.  (N.  Y.)  218;  Bailey  v.  City 
of  Philadelphia,  167  Pa.  569;  Mer- 
chants' Nat.  Bank  v.  McKinney,  2  S. 
D.  106,  48  N.  W.  841.  To  sustain 
the  validity  of  warrants  drawn  un- 
der the  authority  of  law,  it  is  not 
necessary  that  they  shall  be  signed 
by  officials  de  jure;  if  they  are  de 
facto  merely,  it  Is  sufficient.  Steph- 
ens v.  City  of  Spokane,  11  Wash. 
41,  39  Pac.  266;  Ivinson  v.  Hance,  1 
Wyo.  270;  Hubbard  v.  Town  of  Lyn- 
don, 28  Wis.  675. 

Hainer,  Mun.  Secur.,  §  356.  "The 
duties  and  powers  of  officers  of  the 
municipal  corporation  are  prescribed 
by  statute  and  every  person  deal- 
ing with  them  as  such  may  know 


518 


POWERS. 


§  226 


or  allowed  by  that  corporate  body  or  official  to  whom  is  delegated 
by  law  this  particular  duty.602  This  authority  may  be  granted 
to  some  special  official  to  whom  discretionary  powers  are  given 
to  pass  upon  the  legality  of  the  claim  or  indebtedness  to  liquidate 
which  the  warrant  is  drawn  or  upon  the  sufficiency  of  the  war- 
rant itself  In  such  a  case,  the  duties  performed  by  him  are  quasi 
judicial  in  their  character,  subject  to  the  usual  rules  of  law  which 
govern  and  control  the  performance  of  duties  of  that  nature.603 
The  law,  however,  may  impose  upon  such  officials  the  minis- 
terial duty  merely  of  drawing  the  warrant  upon  the  presentation 
to  them  of  a  claim  or  charge  audited  or  allowed  by  certain  desig- 
nated officers.  Here  the  duty  is  obligatory  and  the  official  is 
given  no  discretionary  powers  in  the  matter ;  it  may  then  become 
his  duty  to  draw  such  warrant  even  without  request  of  the  party 
in  whose  favor  it  is  to  be  issued.604  If  he  neglect  or  refuse  to 


and  is  charged  with  a  knowledge  of 
the  nature  of  these  duties  and  the 
extent  of  these  powers;  and  the 
want  of  corporate  power  or  the 
want  of  authority  in  municipal  of- 
ficers cannot  be  supplied  by  their 
unauthorized  action  or  representa- 
tion." 

eoa  people  v.  Fogg,  11  Cal.  351; 
State  v.  Atkinson,  25  Wash.  283,  65 
Pac.  531;  Clark  County  Sup'rs  v. 
Lawrence,  63  111.  32;  Clark  v.  City 
of  Des  Moines,  19  Iowa,  199;  Polk 
County  v.  Sherman,  99  Iowa,  60,  68 
N.  W.  562;  Capmartin  v.  Police  Jury, 

19  La,  Ann.  448;    Saline  County  v. 
Wilson,  61  Mo.  237;  People  v.  Booth, 
49    Barb.     (N.    Y.)     31;     People    v. 
Roberts,    45    App.    Div.    145,    61    N. 
Y.    Supp.    148;    Ex    parte    Florence 
Graded  School  Com'rs,  43  S.  C.  11, 

20  S.  E.  794;   Hubbard  v.  Town  of 
Lyndon,   28  Wis.   674. 

*>3  Henderson  v.  People,  17  Colo. 
587;  Carlile  v.  Kurd,  3  Colo.  App. 

II,  31   Pac.  952;   Ward  v.  Cook,  78 

III.  App.  Ill;   Norman  v.  Kentucky 
Board   of  Managers  of  World's  Co- 
lumbian   Exposition,    14    Ky.    L.    R. 


529,  20  S.  W.  901;  State  v.  Hallock, 
16  Nev.  373;  People  v.  Wood,  35 
Barb.  (N.  Y.)  653;  People  v.  Booth, 
49  Barb.  (N.  Y.)  31;  People  v. 
Green,  56  N.  Y.  476;  Commercial  & 
Farmers'  Bank  v.  Worth,  117  N.  C. 
146,  30  L.  R.  A.  261;  Kensington 
Elec.  Co.  v.  City  of  Philadelphia, 
187  Pa.  446;  In  re  Statehouse  Com- 
mission (R.  I.)  33  Atl.  453;  State  v. 
Lindsley,  3  Wash.  St.  125. 

«o*  Wilson  v.  Neal,  23  Fed.  129; 
Board  of  Liquidation  of  Louisiana 
v.  McComb,  92  U.  S.  531;  Jefferson- 
ian  Pub.  Co.  v.  Hilliard,  105  Ala. 
576;  Babcock  v.  Goodrich,  47  Cal. 
488;  Sehorn  v.  Williams,  110  Cal. 
621;  McMurray  v.  Hayden,  13  Colo. 
App.  51,  56  Pac.  206;  State  v.  Buck- 
les, 39  Ind.  272;  Prime  v.  McCarthy, 
92  Iowa,  569,  61  N.  W.  220;  Alberts 
v.  Torrent,  98  Mich.  512;  State  v. 
Kenney,  10  Mont.  496,  26  Pac.  388; 
State  v.  Smith,  5  Mo.  App.  427. 

State  v.  Moore,  40  Neb.  854.  59 
N.  W.  755,  25  L.  R.  A.  774.  A  state 
auditor  has  no  power  to  question 
the  validity  of  an  act  or  to  inquire 
whether  a  certain  amount  appropri- 


226 


WARRANTS,  ETC. 


519 


perform  the  duty,  its  performance  can  be  compelled  by  man- 
damus directed  against  him.605  Where  the  law  specifies  the  man- 
ner of  allowance  and  audit  of  claims  preliminary  to  the  drawing 
ef  a  warrant  for  their  payment,  such  provisions  are  usually  con- 
sidered mandatory  in  their  character,  necessary  to  be  followed 
even  to  the  slightest  detail  in  order  that  there  exist  a  legal  au- 
thority for  the  warrant.608  The  reason  for  this  ruling  is  appar- 
ent. 

Unless  the  law  otherwise  provides,  it  is  not  necessary  that 
there  should  be  funds  available  for  the  payment  of  the  war- 
rant immediately  upon  its  issue.  The  warrant  is  simply  writ- 
ten evidence  of  an  acknowledged  legal  claim  against  the  public 
corporation;  the  time  of  its  payment  does  not  affect  or  de- 
termine the  question  of  its  validity.607  In  some  states  the  mak- 
ing of  an  appropriation  for  the  payment  of  a  claim  is  neces- 
sary to  the  issuance  of  a  warrant  for  that  purpose,  and  then  the 
authorities  hold  that  no  matter  how  just  or  equitable  the  claim 
may  be,  no  obligation  rests  on  the  public  officials  upon  whom  the 
duty  ordinarily  devolves  to  issue  a  warrant  for  the  liquidation 


ated  is  excessive  where  the  legis- 
lature has  in  the  proper  manner 
made  an  appropriation  for  such  pur- 
pose. Hayes  v.  Davis,  23  Nev.  318. 
'46  Pac.  888;  People  v.  Flagg,  16 
Barb.  (N.  Y.)  503;  People  v.  Haws, 
36  Barb.  (N.  Y.)  59;  Cunningham  v. 
Mitchell,  67  Pa.  78;  Pace  v.  Ortiz, 
72  Tex.  437. 

605  Wilson  v.  Neal,  23  Fed.  129; 
Keller  v.  Hyde,  20  Cal.  594;  Babcock 
v.  Goodrich,  47  Cal.  488;  Ray  v. 
Wilson,  29  Fla.  342,  10  So.  613; 
Johns  v.  Orange  County  Com'rs,  28 
Fla.  626.  An  officer  cannot  be  com- 
pelled, by  mandamus,  to  issue  a 
warrant  until  the  required  action 
has  been  taken  in  respect  to  the  al- 
lowance and  certification  of  the 
claim  where  this  is  necessary.  Rice 
v.  Gwinn,  5  Idaho,  394,  49  Pac.  412; 
People  v.  Hastings,  5  111.  App.  436; 
Campbell  v.  Polk  County,  3  Iowa, 
467;  Evans  v.  McCarthy,  42  Kan. 


426;  State  v.  Clinton,  28  La.  Ann. 
47;  Trustees  of  Paris  Tp.  v.  Cherry, 
8  Ohio  St.  565;  Merkel  v.  Berks 
County,  81%  Pa.  505;  Callaghan  v. 
Salliway,  5  Tex.  Civ.  App.  239; 
State  v.  Headlee,  19  Wash.  477,  53 
Pac.  948.  See,  also,  authorities  un- 
der preceding  note.  But  see  Land 
v.  Allen,  65  Miss.  455. 

ace  Flagg  v.  Parish  of  St.  Charles, 
27  La.  Ann.  319. 

SOT  Speer  v.  Kearney  County  Com'rs 
(C.  C.  A.)  88  Fed.  749.  The  fact 
that  no  levy  of  taxes  has  been  made 
for  the  purpose  of  paying  warrants 
issued  by  county  commissioners  in 
payment  of  indebtedness  does  not 
invalidate  them.  City  of  Little 
Rock  v.  United  States  (C.  C.  A.) 
103  Fed.  418;  State  v.  Sherman,  46 
Iowa,  415;  Evans  v.  McCarthy,  42 
Kan.  426,  22  Pac.  631;  State  v.  Ken- 
ney,  10  Mont.  496,  26  Pac.  388. 


520 


POWERS. 


§  227 


of  such  claim  until  the  making  of  an  appropriation  by  the  proper 
body  for  its  payment  unless  there  are  moneys  in  the  treasury 
available  for  such  purpose.608 

§  227.    Fund  from  which  payable. 

The  usual  method  for  the  payment  of  the  ordinary  current  ex- 
penses of  a  corporation  is  through  the  appropriation  of  moneys 
by  a  duly  authorized  body  for  this  specified  purpose.  This  ap- 
propriation may  be  a  formal  direction  by  the  proper  officials  to 
pay,  either  from  a  fund  raised  or  set  aside  especially  for  the  set- 
tlement of  specified  claims  or  from  the  general  revenues.608 
Where  an  appropriation  is  made  for  payment  from  a  specific 
fund,  the  warrant  can  be  drawn  on  and  is  payable  only  from 
such  fund.610  If  there  are  no  moneys  available  at  the  time  of 


eos  Goyne  v.  Ashley  County,  31 
Ark.  552.  The  fact  that  warrants 
are  selling  at  a  discount  cannot  be 
considered  in  making  the  appropri- 
ation for  a  certain  purpose  resulting 
In  an  increase  of  the  appropriation. 
Cramer  v.  City  &  County  of  Sacra- 
mento Sup'rs,  18  Cal.  384;  In  re  Ap- 
propriation by  General  Assembly,  13 
•Colo.  316;  Henderson  v.  People,  17 
Colo.  587;  Collier  &C.  Lithographing 
Co.  v.  Henderson,  18  Colo.  259;  Goo- 
dykoontz  v.  Acker,  19  Colo.  360,  35 
Pac.  911;  Goodykoontz  v.  People,  20 
Colo.  374,  38  Pac.  473;  Cook  County 
v.  Lowe,  23  111.  App.  649;  Hubbell  v. 
City  of  South  Hutchinson,  64  Kan. 
645,  68  Pac.  52.  The  statute  of  lim- 
itations will  not  start  to  run  in  favor 
of  a  city  on  its  outstanding  war- 
rants until  it  has  money  in  its  treas- 
ury to  satisfy  such  obligations.  Snel- 
ling  v.  Joffrion,  42  La.  Ann.  886; 
State  v.  Seibert,  99  Mo.  122:  State 
v.  Kenney,  9  Mont.  389,  24  Pac.  96; 
State  v.  Kenney,  30  Mont.  496,  26 
Pac.  388;  State  T.  Hickman,  11  Mont. 
541,  29  Pac.  92.  The  rule  stated  in 
the  text,  however,  does  not  apply 
to  the  payment  of  interest  on  pub- 
lic debts  including  outstanding  war- 


rants. State  v.  Lindsley,  3  Wash. 
St.  125. 

SOD  Carter  v.  Tilghman,  119  Cal. 
104;  Stevens  v.  Truman,  127  Cal. 
155;  Campbell  v.  Polk  County,  3 
Iowa,  467;  Warren  County  Sup'rs 
v.  Klein,  51  Miss.  807;  Shipley  v. 
Hacheney,  34  Or.  303,  55  Pac.  971. 

6io  Peake  v.  City  of  New  Orleans, 
38  Fed.  779;  Rose  v.  Estudillo,  39 
Cal.  270;  McGowan  v.  Ford,  107  Cal. 
177,  40  Pac.  231;  Jordan  v.  Hubert, 
54  Cal.  260;  Travelers'  Ins.  Co.  v. 
City  of  Denver,  11  Colo.  434,  18  Pac. 
556;  Nance  v.  Stuart,  12  Colo.  App. 
125,  54  Pac.  867;  Park  v.  Candler, 
113  Ga.  647,  39  S.  E.  89;  Fuller  v. 
Heath,  1  111.  App.  118;  Village  of 
Marysville  v.  Schoonover,  78  111. 
App.  189;  Union  County  Com'rs  v. 
Mason,  9  Ind.  97;  Phillips  v.  Reed, 
107  Iowa,  331,  77  N.  W.  1031,  44 
L.  R.  A.  131,  modifying  judgment  in 
76  N.  W.  850. 

City  of  Atchison  v.  Leu,  48  Kan. 
138.  A  city  of  the  first  class  under 
the  Kansas  statutes  is  liable  on  war- 
rants issued  to  pay  for  curbing  and 
guttering  a  street  although  the 
money  due  it  from  special  assess- 
ments levied  for  such  purpose  may 


§   227  WARRANTS,  ETC.  521 

issue,  payment  is  necessarily  deferred  until  sufficient  funds  ac- 
cumulate with  which  to  discharge  the  particular  obligation.611 

The  fiscal  authorities  cannot  be  compelled  to  pay  warrants 
drawn  against  a  special  fund  or  appropriation  from  the  general 
revenues.612  Although  a  public  corporation  by  drawing  a  war- 
rant against  a  particular  fund  does  not  guarantee  the  existence 
of  such  a  fund,  it  does  guarantee  the  moneys  in  that  fund  legally 
belonging  to  it  and  if  there  has  been  a  diversion  or  misappro- 
priation of  such  moneys  for  other  purposes,  the  corporation  is 
liable  from  its  general  revenues  to  that  extent.613  A  warrant  for 

not  have  been  received.     Labatt  v.  City  of  Seattle,  6  Wash.  315,  33  Pac. 

City   of  New  Orleans,   38  La.   Ann.  384,   1080;    Kenyon  v.  City  of  Spo- 

283;  Abascal  v.  City  of  New  Orleans,  kane,    17    Wash.    57,    48    Pac.    783; 

48   La.   Ann.   565;   People   v.  Treas-  Wilson  v.  City  of  Aberdeen,  19  Wash, 

urer  of  Merritt  Tp.,  38  Mich.  243.  89;     Townsend    Gas    &    Elec.    Light 

State  v.  Hartley,  41  Neb.  277,  59  Co.  v.  Hill,  24  Wash.  469,  64  Pac. 
N.  W.  907.  The  holder  of  a  gen-  778;  Potter  v.  City  of  Whatcom,  25 
eral  fund  warrant  may  refuse  to  re-  Wash.  207,  65  Pac.  197;  Montague  v. 
ceive  in  payment  moneys  belonging  Horton,  12  Wis.  599. 
to  another  fund  the  diversion  of  en  Scruggs  v.  Underwood,  54  Ala. 
which  to  the  settlement  of  his  claim  186;  Day  v.  Callow,  39  Cal.  593; 
is  unconstitutional.  Kingsberry  v.  State  v.  State  Treasurer,  32  La. 
Pettis  County,  48  Mo.  207;  Camp-  Ann.  177;  Wilson  v.  Knox  County, 
bell  v.  Polk  County  Ct.,  76  Mo.  57;  132  Mo.  387,  34  S.  W.  45,  477;  An- 
Moody  v.  Cass  County,  85  Mo.  477;  drew  County  v.  Schell,  135  Mo.  37, 
Morrow  v.  Surber,  97  Mo.  155;  State  36  S.  W.  206;  Campbell  v.  Polk 
v.  Wright,  17  Mont.  565;  State  v.  County,  49  Mo.  214;  State  v.  John- 
Cook,  13  Mont.  465,  34  Pac.  770;  son,  162  Mo.  621,  63  S.  W.  390;  State, 
People  v.  Lathrop,  19  How.  Pr.  (N.  v.  Wilson,  71  Tex.  291,  9  S.  W.  155. 
Y.)  358;  People  v.  Wood,  71  N.  Y.  A  state  is  not  liable  for  the  loss  sus- 
371;  Hall  v.  State,  54  Neb.  280;  tained  by  a  warrant  holder  obliged 
Redmon  v.  Chacey,  7  N.  D.  231;  to  sell  at  a  discount  for  lack  of 
Theis  v.  Washita  County  Com'rs,  9  funds.  But  see  Potter  v.  Black,  15 
Okl.  643;  Diggs  v.  Lobsitz,  4  Okl.  Wash.  186,  where  it  is  held  that 
232,  43  Pac.  1069;  Jones  v.  City  of  part  of  a  warrant  must  be  paid 
Portland.  35  Or.  512;  Northup  v.  when  there  are  insufficient  moneys 
Hoyt,  31  Or.  524,  49  Pac.  754;  La  to  pay  the  whole  of  it. 
France  Fire  Engine  Co.  v.  Davis,  9  612  Potter  v.  City  of  Whatcom,  25 
Wash.  600.  Wash.  207,  65  Pac.  197. 

Potter  v.  Black,  15  Wash.  186.    If        eis  peake  v.  City  of  New  Orleans, 

there   is  not  sufficient  money   in   a  38  Fed.  779;   Wilder  v.  City  of  New 

particular  fund  to  pay  the  whole  of  Orleans    (C.    C.    A.)    87    Fed.    843; 

a  warrant  presented  and  chargeable  Hockaday  v.  Chaffee  County  Com'rs, 

against   such   fund,    its   payment   in  1  Colo.  App.  362;    Shotwell   v.  City 

part    can    be    compelled.      Soule    v.  of  New   Orleans,  36   La.  Ann.  938; 


522  POWERS.  §  229 

the  payment  of  a  specific  claim  may  be  held  invalid  where  it  is 
general  in  its  terms  but  the  authority  for  its  payment  is  special. 
The  party  to  whom  such  a  warrant  may  be  issued  is  usually  held 
charged  with  knowledge  of  the  provisions  of  the  law  allowing 
the  claim  and  making  the  appropriation.614 

§  228.    Formal  issue. 

In  common  with  other  evidences  of  indebtedness,  a  warrant  is 
not  issued  until  it  is  delivered  and  this  involves  the  question  of 
.  its  issue  and  delivery  to  the  proper  person.615 

§  229.    Audit  and  allowance  of  claims  as  preliminary  to  issuance. 

The  audit  and  allowance  of  a  claim  is  a  recognition  of  its  ex- 
istence as  a  valid  outstanding  indebtedness  and  where  the  law 
provides  for  such  action,  if  not  done,  warrants  although  drawn 
by  the  proper  officials  are  not  binding.616  After  the  issuance  of 
a  warrant  upon  an  audit  and  allowance,  the  public  corporation 

Valleau  r.  Newton  County,  72  Mo.  Pac.  505;  City  of  New  Orleans  v. 
593;  McGlue  v.  City  of  Philadelphia,  City  Hotel,  28  La.  Ann.  423. 
10  Phila.  (Pa.)  348;  Potter  v.  City  6"  Jeffersonian  Pub.  Co.  v.  Hil- 
of  New  Whatcom,  20  Wash.  589.  Hard,  105  Ala.  576;  San  Juan  County 
See,  also,  the  following  cases  hold-  Com'rs  v.  Oliver,  7  Colo.  App.  515; 
ing  to  a  general  liability  where  State  v.  Miller,  145  Ind.  598;  State 
there  is  a  neglect  on  the  part  of  the  v.  Pierce,  52  Kan.  521.  To  issue 
corporation  to  collect  or  create  the  county  warrants  or  orders  means 
special  fund  designated.  Warner  v.  "to  send  out  to  deliver,  or  to  put 
City  of  New  Orleans,  167  U.  S.  467,  into  circulation."  Craig  v.  Mason, 
affirming  87  Fed.  829;  City  of  New  64  Mo.  App.  342;  State  v.  Lewis,  6 
Orleans  v.  Warner,  175  U.  S.  120;  Ohio  Dec.  198;  Clark  County  Sup'rs 
Denny  v.  City  of  Spokane,  79  Fed.  v.  Lawrence,  63  111.  32.  It  is  not 
719  -r  Mills  County  Nat.  Bank  v.  Mills  necessary  to  the  validity  of  a  war- 
County,  67  Iowa,  697;  Reilly  v.  City  rant  that  it  be  delivered  in  the 
of  Albany,  112  N.  Y.  30,  2  L.  R.  A.  county  in  which  it  is  issued. 
648;  Commercial  Nat.  Bank  v.  City  eie  Keller  v.  Hyde,  20  Cal.  594; 
of  Portland,  24  Or.  188;  Jones  v.  Sawyer  v.  Colgan  (Cal.)  33  Pac. 
City  of  Portland,  35  Or.  512;  Bank  911;  Capmartin  v.  Police  Jury  of 
of  British  Columbia  v.  City  of  Port  Natchitocb.es,  19  La.  Ann.  448;  State 
Townsend,  16  Wash.  450.  But  see  v.  City  of  New  Orleans,  50  La.  Ann. 
Stephens  v.  City  of  Spokane,  11  880;  Wilson  v.  State,  53  Neb.  113, 
Wash.  41;  and  McEwan  v.  City  of  73  N.  W.  456;  State  v.  Hallock,  20 
Spokane,  16  Wash.  212.  Nev.  326,  22  Pac.  123;  In  re  State- 
si*  Sutro  v.  Dunn,  74  Cal.  593,  16  house  Bills,  19  R.  I.  390,  35  Atl.  21° 


§   230  WARRANTS,  ETC.  523 

is  estopped  to  set  up  as  a  defense,  in  an  action  upon  it,  irregulari- 
ties in  the  audit  or  allowance;  to  illustrate,  the  audit  and  allow- 
ance at  a  special  instead  of  a  regular  meeting  of  the  board  upon 
whom  such  duty  rests.617 

§  230.    Their  legal  character. 

Warrants  issued  by  public  corporations,  purchased  before  ma- 
turity and  for  value,  are  subject  to  all  defenses  or  equities,  al- 
though in  contradiction  to  their  recitals,  which  may  exist  be- 
tween the  parties  to  the  transaction  whether  such  bona  fide 
holder  is  the  original  payee  or  a  subsequent  purchaser  for 
value.618  In  this  respect  they  differ  radically  from  negotiable 
bonds  or  securities  issued  by  public  corporations.  The  rules  of 
law  concerning  the  issue  of  warrants  are  applied  with  less  strict- 
ness than  in  the  case  of  negotiable  bonds  for  this  reason.  The 
courts  will  imply  authority  to  issue,  when  under  the  same  cir- 
cumstances, no  such  authority  would  be  implied  with  respect  to 
negotiable  securities  and  they  will  overlook  irregularities  in  the 
form  or  manner  of  issue  when  such  irregularities  would  render 
negotiable  bonds  absolutely  void  even  in  the  hands  of  bona  fide 
holders.619 

«"  Warner    v.    City    of    New    Or-  and  the  chief  design  of  those  enact- 

leans  (C.  C.  A.)  87  Fed.  829;  Speer  v.  ments  was,  to  prevent  the  making 

Kearney  County  Com'rs    (C.  C.  A.)  of    paper   by    county    courts    which 

88    Fed.    749;    Los   Angeles   County  could  be  used  as  a  circulating  me- 

v.  Lankershim,  100  Cal.   525.  dium  having  the  appearance  of  ordi- 

«is  School   Dist.   Tp.   v.   Lombard,  nary    bank  paper.     *     *     *     "When 

2    Dill.   493,   Fed.   Gas.   No.    12,478;  a    party   like   the   present   plaintiff, 

Shirk  v.  Pulaski  County,  4  Dill.  209,  has    performed    labor,    or    rendered 

Fed.    Cas.    No.    12,794;    Watson    v.  services  to  the  county,  and  holds  a 

City  of  Huron    (C.  C.  A.)    97  Fed.  warrant   issued   upon    the   treasury 

449.  of  the  county  by  the  county  court, 

«i»  Young  v.  Camden  County,  19  his  claim  to  the  money  is  not  affect- 
Mo.  309.  Sections  of  an  act  pre-  ed  by  the  taste  of  the  court  in  or- 
scribing  a  form  for  county  war-  namenting  their  warrants,  although 
rants  are  merely  directory  and  a  they  are  forbidden  to  use  such  or- 
departure  from  the  form  prescribed  naments  by  the  county.  The  words 
is  no  defense  to  an  action  on  the  of  the  warrant  have  the  same  mean- 
warrant.  The  court  say:  "The  ing,  and  import  the  same  obligation 
provisions  of  the  act  which  have  whether  the  ends  of  the  paper  upon 
been  relied  upon  by  the  counsel  for  which  it  is  printed  have  ornaments 
the  county,  are  directory  to  the  or  not." 
county  courts  in  issuing  warrants, 


524 


POWERS. 


§  230 


Warrants  are  not  negotiable  instruments  in  the  full  sense  of 
the  term  as  used  in  the  law  merchant.  They  are  non-negotiable 
and  merely  prima  facie  evidence  of  a  valid  claim  against  the 
corporation  issuing  them.*20 


«2o  City  of  Nashville  v.  Ray,  86  U. 
S.  (19  Wall.)  468.  "Vouchers  for 
money  due,  certificates  of  indebted- 
ness for  services  rendered,  or  for 
property  furnished  for  the  uses  of 
the  city,  orders  or  drafts  drawn  by 
one  city  officer  upon  another,  or  any 
other  device  of  the  kind  used  for 
liquidating  the  amounts  legitimately 
due  to  public  creditors,  are,  of  course, 
necessary  instruments  for  carrying 
on  the  machinery  of  municipal  ad- 
ministration, and  for  anticipating 
the  collection  of  taxes.  But  to  in- 
vest such  documents  with  the  char- 
acter and  incidents  of  commercial 
paper,  so  as  to  render  them  in  the 
hands  of  bona  fide  holders  absolute 
obligations  to  pay,  however  irreg- 
ularly or  fraudulently  issued,  is  an 
abuse  of  their  true  character  and 
purpose." 

Thompson  v.  Searcy  County  (C. 
C.  A.)  57  Fed.  1030;  Speer  v.  Kear- 
ney County  Com'rs  (C.  C.  A.)  88 
Fed.  749;  Lake  County  Com'rs  v. 
Keene  Five-Cents  Sav.  Bank  (C.  C. 
A.)  108  Fed.  505;  Shirk  v.  Pulaskl 
County,  4  Dill.  209,  Fed.  Cas.  No. 
12,794;  Crawford  County  v.  Wilson, 
7  Ark.  214;  Police  Jury  of  Tensas 
v.  Britton,  82  U.  S.  (15  Wall.)  566; 
Wall  v.  County  of  Monroe,  103  U. 
S.  74.  "The  warrants  being  in  form 
negotiable,  are  transferable  by  de- 
livery so  far  as  to  authorize  the 
holder  to  demand  payment  of  them 
and  to  maintain,  in  his  own  name, 
an  action  upon  them.  But  they  are 
not  negotiable  instruments  in  the 
sense  of  the  law  merchant,  so  that, 
when  held,  by  bona  fide  purchaser, 


evidence  of  their  invalidity  or  de- 
fenses available  against  the  orig- 
inal payee  would  be  excluded.  The 
transferee  takes  them  subject  to  all 
legal  and  equitable  defenses  which 
existed  to  them,  in  the  hands  of 
such  payee. 

There  has  been  a  great  number  of 
decisions  in  the  courts  of  the  sev- 
eral states  upon  instruments  of  this 
kind,  and  there  is  little  diversity 
of  opinion  respecting  their  charac- 
ter. All  the  courts  agree  that  the 
instruments  are  mere  prima  facie 
and  not  conclusive  evidence  of  the 
validity  of  the  allowed  claims 
against  the  county  by  which  they 
were  issued.  The  county  is  not  es- 
topped from  questioning  the  legal- 
ity of  the  claims;  and  when  this  is 
conceded,  the  instruments  conclude 
nothing  as  to  other  demands  be- 
tween the  parties."  The  court  also 
in  speaking  of  the  decision  in  Craw- 
ford County  v.  Wilson,  7  Ark.  (2 
Eng.)  214,  said:  "This  case  in  the 
supreme  court  of  Arkansas,  is  cited 
as  showing  that  a  different  rule  pre- 
vails in  that  state.  The  language 
of  the  opinion,  that  county  war- 
rants are  endowed  with  the  proper- 
ties of  negotiable  instruments,  must 
be  read  in  connection  with  the  point 
involved,  which  was  whether  coun- 
ty warrants  were  transferable  by 
mere  delivery,  so  as  to  vest  the  legal 
interest  in  the  holder.  To  this  ex- 
tent they  may  be  called  negotiable, 
but  no  court  of  Arkansas  has  held 
that  they  were  negotiable  in  the 
sense  of  the  law  merchant,  so  as  to 
shut  out,  in  the  hands  of  a  bona 


230  § 


WARRANTS,  ETC. 


525 


They  are  negotiable  only  so  far  that,  when  endorsed,  they  be- 
come transferable  by  delivery  and  the  holder  may  maintain  an 
action  thereon  in  his  own  name.  But  in  such  action,  whether 
brought  by  the  original  payee  or  a  subsequent  purchaser  for 
value,  all  irregularities  in  the  manner  of  issue,  lack  of  authority 
or  the  purpose  for  which  the  funds  were  used,  are  available  as 
defenses.621  In  a  case  decided  by  the  supreme  court  of  the  United 


fide  purchaser,  inquiries  as  to  their 
validity  or  preclude  defenses  which 
could  be  made  to  them  in  the  hands 
of  the  original  parties.  The  law 
is  not  different  there  from  that 
which  obtains  in  other  states." 

Hill  v.  City  of  Memphis,  134  U. 
S.  198;  Shirk  v.  Pulaski  County, 
4  Dill.  209,  Fed.  Cas.  No.  12,794; 
People  v.  El  Dorado  County  Sup'rs, 
11  Cal.  170;  Pacific  Pav.  Co.  v.  Mow- 
bray,  127  Cal.  1;  Ray  v.  Wilson, 
29  Fla.  342,  10  So.  613,  14  L.  R.  A. 
773;  Delfosse  v.  Metropolitan  Nat. 
Bank,  98  111.  App.  123;  People  v. 
Johnson,  100  111.  537;  Davis  v.  Steu- 
ben  School  Tp.(  19  Ind.  694,  50  N.  E. 
1;  Clark  v.  City  of  Des  Moines,  19 
Iowa,  199;  Walnut  Tp.  v.  Jordan, 
38  Kan.  562,  16  Pac.  812;  Garfield 
Tp.  v.  Crocker,  63  Kan.  272,  65  Pac. 
273;  Sturtevant  v.  Inhabitants  of 
Liberty,  46  Me.  457;  Emery  v.  Inhab- 
itants of  Mariaville,  56  Me.  315;  Van 
Akin  v.  Dunn,  117  Mich.  421,  75  N. 
W.  938;  Matthis  v.  Inhabitants  of 
Cameron,  62  Mo.  504;  International 
Bank  of  St.  Louis  v.  Franklin  Coun- 
ty, 65  Mo.  105,  overruling  Howell  v. 
Reynolds  County,  51  Mo.  154;  Chand- 
ler v.  City  of  Bay  St.  Louis,  57 
Miss.  326;  Great  Falls  Bank  v. 
Farmington,  41  N.  H.  32;  State  v. 
Cook,  43  Neb.  318;  D  County  Com'rs 
v.  Sauer,  8  Okl.  235;  Borough  of 
Port  Royal  v.  Graham,  84  Pa.  426; 
East  Union  Tp.  v.  Ryan,  86  Pa.  459; 
Hyde  v.  County  of  Franklin,  27  Vt. 


185;  Bardsley  v.  Sternberg,  18  Wash. 
612;  West  Philadelphia  Title  & 
Trust  Co.  v.  City  of  Olympia,  19 
Wash.  150,  52  Pac.  1015.  See,  also, 
many  authorities  collected  in  21  Am. 
&  Eng.  Enc.  Law  (2d  Ed.)  p.  26, 
note  to  par.  12. 

sal  Wall  v.  Monroe  County,  103 
U.  S.  74;  Ouachita  County  v.  Wol- 
cott,  103  U.  S.  559;  Watson  v.  City 
of  Huron  (C.  C.  A.)  97  Fed.  449; 
Crawford  County  T.  Wilson,  7  Ark. 
214;  Apache  County  v.  Barth  (Ariz.) 
53  Pac.  187;  People  v.  Gray,  23  Cal. 
125;  Jones  v.  Smith,  64  Ga.  711; 
People  v.  Rio  Grande  County  Com'rs, 
11  Colo.  App.  124,  52  Pac.  748;  Good- 
win v.  Town  of  East  Hartford,  70 
Conn.  18;  Newell  v.  School  Direc- 
tors of  Dist.  No.  1,  68  111.  514;  City 
of  Hammond  v.  Evans,  23  Ind.  App. 
501;  Davis  v.  Steuben  School  Tp., 
19  Ind.  App.  694,  50  N.  E.  1;  Clark 
v.  City  of  Des  Moines,  19  Iowa,  199; 
Clark  v.  Polk  County,  19  Iowa,  248. 

First  Nat.  Bank  of  Arkansas  City 
v.  Gates,  66  Kan.  505,  72  Pac.  207. 
"Such  paper  (commercial)  is  made 
free  from  defenses  in  the  hands  of 
such  holders  in  order  to  facilitate 
the  circulation  thereof,  and  there- 
by promote  the  transaction  of  busi- 
ness. But  paper  non-negotiable  for 
any  reason  is  not  thus  protected. 
The  very  fact  of  its  being  non-ne- 
gotiable is  a  sign  of  warning  to  the 
prospective  purchaser  and  places 
him  on  his  guard.  Municipal  war- 


526 


POWERS. 


§  231 


States,  it  was  held  that  a  warrant  drawn  by  state  authorities 
receivable  in  payment  of  certain  obligations  due  the  state  was 
not  a  bill  of  credit  or  other  instrument  intended  to  circulate  as 
money.022  Some  authorities  hold  that  an  executive  warrant  di- 
recting the  payment  of  money  in  pursuance  of  an  appropriation 
made  by  law  does  not  partake  of  the  nature  of  a  contract  but  is 
merely  a  license  of  power  and  revocable  so  long  as  the  payment 
authorized  is  not  made.623 

§  231.    Form. 

A  public  corporation  transacts  its  business,  exercises  all  its 
powers  and  performs  all  its  duties  through  its  duly  appointed  or 
elected  agents.  To  protect  the  corporation  therefore,  there  are 
well  denned  and  established  rules  of  law  controlling  and  regu- 
lating the  manner  in  which  and  the  acts  that  may  be  done  by 
such  agents  for  and  in  behalf  of  their  principal.  This  is  espe- 


rants  though  negotiable  in  form,  are 
non-negotiable  in  fact;  hence  they 
are  not  within  the  protection  of  the 
rule  which  guards  commercial  pa- 
per. The  warrant  in  question  be- 
ing such  an  instrument,  it  was  there- 
by, in  the  eye  of  the  law,  non-ne- 
gotiable, though  as  to  form  and  in 
other  respects  of  a  negotiable  char- 
acter. It  therefore  took  its  place  in 
the  list  of  non-negotiable  paper  for 
all  purposes.  In  other  words,  an 
instrument  non-negotiable  between 
the  original  parties  remains  non-ne- 
gotiable through  successive  trans- 
fers. The  bank,  knowing  that  it  was 
non-negotiable  must  take  and  hold 
it  as  it  would  any  other  non-nego- 
tiable paper. 

Long  v.  McDowell,  107  Ky.  14,  52 
N.  W.  812;  Klein  v.  Pipes,  43  La. 
Ann.  359;  Emery  v.  Inhabitants  of 
Mariaville,  56  Me.  315;  School  Dist. 
No.  2  v.  Stough,  4  Neb.  357;  State 
v.  Cook,  43  Neb.  318;  Smith  v.  Town 
of  Epping,  69  N.  H.  558,  45  Atl.  415; 
McPeeters  v.  Blankenship,  123  N. 


C.  651;  Oilman  v.  Gilby  Tp.,  8  N.  D. 
627;  Capital  Bank  of  St.  Paul  v. 
School  Dist.  No.  03,  1  N.  D.  479; 
Crawford  v.  Noble  County  Com'rs,  8 
Okl.  450.  But  see  Snyder  Tp.  v. 
Bovaird,  122  Pa.  442,  15  Atl.  910, 
as  holding  that  a  blank  assignment 
does  not  vest  in  the  holder  of  a 
township  warrant  the  right  to  main- 
tain an  action  in  his  own  name 
against  the  township.  Hubbell  v. 
Town  of  Custer  City,  15  S.  D.  55, 
87  N.  W.  520;  Lane  v.  Hunt  Coun- 
ty, 13  Tex.  Civ.  App.  315,  35  S.  W. 
10;  Bardsley  v.  Sternberg,  17  Wash. 
243,  49  Pac.  499;  West  Philadelphia 
Title  &  Trust  Co.  v.  City  of  Olympia, 
19  Wash.  150,  52  Pac.  1015;  Chehalis 
County  v.  Hutcheson,  21  Wash.  82, 
57  Pac.  341.  See,  also,  authorities 
cited  in  preceding  note. 

622  Houston    &    T.    C.    R.    Co.    v. 
Texas,  177  U.  S.  66.     See,  also,  City 
of   New   Orleans   v.    Mount,   24   La. 
Ann.  37. 

623  Fletcher    v.    Renfroe,    56    Ga. 
674. 


§  231 


WARRANTS,  ETC. 


527 


cially  true  of  all  those  acts  by  or  through  which  a  pecuniary  re- 
sponsibility or  obligation  may  be  imposed  upon  a  public  corpora- 
tion. The  law  or  custom  may  require  warrants  in  their  form  to 
be  phrased  in  a  certain  manner,624  signed  by  certain  officials,  en- 
dorsed by  others625  and  sealed  with  the  seal  of  the  corporation, 
if  any.626  Where  a  warrant  in  its  mechanical  execution  does  not 
comply  with  such  reasonable  requirements  of  the  law,  it  may  be 
considered  invalid  and  the  official  to  whom  it  is  directed  and 
whose  duty  it  is  to  pay  valid  warrants,  can  properly  refuse  to 
recognize  them.627  This  may  be  not  only  a  discretionary  matter 


«2*  Shipman  v.  Forbes,  97  Cal. 
572,  32  Pac.  599;  Witter  v.  Bach- 
man,  117  Cal.  318,  49  Pac.  202;  El- 
lis v.  Witmer,  134  Cal.  249,  66  Pac. 
301;  State  v.  Pilsbury,  29  La.  Ann. 
787;  Taylor  v.  Chickasaw  County 
Sup'rs,  74  Miss.  23,  19  So.  834;  Cal- 
laghan  v.  Salliway,  5  Tex.  Civ.  App. 
239;  Minor  v.  Loggins,  14  Tex.  Civ. 
App.  15,  37  S.  W.  1086. 

625  Apache  County  v.  Barth  (Ariz.) 
53  Pac.  187;  National  Bank  of  D.  O. 
Mills  &  Co.  v.  Herold,  74  Cal.  603, 
16  Pac.  507  (the  omission  of  an 
official  designation  not  material) ; 
State  v.  Dickerman,  16  Mont.  278, 
40  Pac.  698;  State  v.  Morton,  51  S. 
C.  323,  28  S.  E.  945.  It  is  not  nec- 
essary that  each  member  of  the 
board  of  trustees  of  a  school  district 
sign  a  warrant  to  render  it  valid. 
Bardsley  v.  Sternberg,  17  Wash.  243, 
49  Pac.  499.  A  city  is  not  liable 
for  a  fraudulent  re-issue  of  war- 
rants by  its  treasurer  in  payment 
of  the  original  Indebtedness. 

«26  Smeltzer  v.  White,  92  U.  S.  390; 
Springer  v.  Clay  County,  35  Iowa, 
241;  Thompson  v.  Fellows,  21  N.  H. 
(1  Fost.)  425.  A  warrant  issued  by 
selectmen  need  not  be  under  seal. 
State  v.  Morton,  51  S.  C.  323,  28  S. 
E.  945;  Heffleman  v.  Pennington 
County,  3  S.  D.  162.  "The  stat- 
ute is  very  explicit  as  to  how 


a  claim  against  a  county  shall 
be  presented  and  passed  upon  by 
its  board  of  county  commission- 
ers. The  duty  of  the  board  is  to 
judicially  investigate  the  validity 
and  justice  of  the  claim,  and  to  al- 
low or  disallow  the  same  in  whole 
or  in  part,  as  to  such  board  shall 
appear  just  or  lawful.  While  the 
immediate  purpose  of  the  warrant 
is  to  enable  the  claimant  to  whom 
it  is  delivered  to  draw  from  the 
county  treasury  the  amount  of  mon- 
ey therein  named,  yet  it  rests  upon, 
and  its  issue  and  payment  could 
only  be  justified  upon,  the  theory 
that  after  a  full  investigation  the 
county  had  found  itself  to  be  so  in- 
debted; so  that  the  warrant  is  a 
formal  and  deliberate  acknowledg- 
ment by  the  county  of  such  indebt- 
edness." 

627  Hamilton  County  Com'rs  v. 
Sherwood  (C.  C.  A.)  64  Fed.  103. 
A  county  warrant  regular  in  its 
form  but  issued  for  an  account 
which  was  not  verified  as  required 
by  Gen.  St.  Kan.  1889,  c.  25,  §  28, 
is  not  utterly  void,  unless  issued 
fraudulently  without  consideration 
or  authority. 

Freeman  v.  City  of  Huron,  10  S. 
D.  368,  73  N.  W.  260.  The  failure 
of  a  city  treasurer  to  record,  as 
required  by  law,  warrants  presented. 


528  POWERS.  §  232 

with  such  official  but  an  imperative  duty ;  the  right  to  refuse  pay- 
ment may  also  exist  where  the  appropriation  has  been  made  to  a 
certain  individual  for  a  specific  purpose  and  the  warrant  as 
drawn  is  to  another  individual  and  without  specifying  the  pur- 
pose. No  rule  of  universal  applicability,  however,  can  be  given 
but  charter  or  statutory  provisions  must  be  consulted  to  deter- 
mine the  validity  of  the  warrant  in  this  respect. 

§  232.    Wording. 

Provisions  that  a  warrant  shall  show  upon  its  face  the  purpose 
for  which  it  is  drawn  are  usually  considered  mandatory  and  in 
the  absence  of  such  recital,  no  recovery  can  be  had  even  by  a 
bona  fide  purchaser.628  A  substantial  compliance,  however,  with 
charter  or  statutory  provisions,  satisfies  legal  requirements  and 
payment  can  then  be  enforced.629  Where  they  are  issued  con- 
taining certain  recitals  and  the  law  in  full  under  which  they  are  is* 
sued,  subsequent  legislation  cannot  be  passed  which  changes  or  af- 
fects the  terms  or  conditions  upon  which  they  are  payable.  Such 
legislation  will  be  considered  an  impairment  of  the  obligation  of 
the  contract  between  the  holder  and  the  maker.630  The  party  to 
whom  payable  is  usually  determined  by  law.  Ordinarily,  a  war- 
rant is  only  valid  when  issued  in  favor  of  the  one  so  designated. 
This  principle  has  been  applied  in  the  issue  of  a  warrant  to  the 
assignee  of  one  holding  the  original  claim  and  invalidating  it.631 

does  not  defeat  the  right  of  a  war-  ation  of  warrants  see  Foote  v.  City 

rant  holder  to  enforce  it.     See  also  of  Salem,  96  Mass.    (14  Allen)    87; 

holding    that    statutory    provisions  Young  v.   Camden   County,    19    Mo. 

fixing    the    form    of    warrants    are  309;    and    Kenyon   v.    City    of   Spo- 

directory  and  that  the  addition  of  kane,  17  Wash.   57. 

other  words  does  not  necessarily  de-  629  Goldsmith  v.  Stewart,  45  Ark. 

stroy  their  effect.     City  of  Burrton  149;    San    Juan    County    Com'rs    v. 

v.    Harvey    County    Sav.    Bank,    28  Oliver,  7  Colo.  App.  515,  44  Pac.  362; 

Kan.    390;    and    Young    v.    Camden  Ray  Y.  Wilson,  29   Fla.  342,  10   So. 

County,  19  Mo.  309.  613,  14  L.  R.  A.  773;   City  of  East 

628  Raymond    v.    People,    2    Colo.  St.  Louis  v.  Flannigen,  36  111.  App. 

App.    329,    30    Pac.    504,    following  50. 

Travelers'  Ins.  Co.  v.  City  of  Den-  eso  Brooklyn  Park  Com'rs  v.  Arm- 

ver,  11  Colo.  434,  18  Pac.  556;   San  strong,  45  N.  Y.  234;  Wabash  &  E. 

Juan    County    Com'rs    v.    Oliver,    7  t!anal  Co.  v.  Beers,  2  Black  (U.  S.) 

Colo.   App.    515,    44    Pac.    362.      For  448. 

cases   passing   upon   questions   rela-  esi  Sheerer  v.  Edgar,  76  Cal.  569; 

tive  to  the  phraseology  or  ornament-  but  see  Hadley  v.   Dague,   130   CaL 


§  233a 


WARRANTS,  ETC. 


529 


§  233.    Validity. 

(a)  In  general.  There  does  not  exist  usually,  an  implied  au- 
thority on  the  part  of  public  corporations  to  issue  warrants.  The 
power  must  be  found  in  some  provision  of  the  laws  of  the  state  or 
charter  of  the  municipality  before  it  can  be  exercised.  To  be  valid, 
there  must  exist  the  legal  authority  for  their  issue  assuming  the 
absence  of  irregularities  in  other  respects.632  The  presumption  of 


207,  62  Pac.  500.  "The  contract 
was  originally  awarded  to  John  T. 
Long  and  before  its  completion  was 
assigned  to  the  Western  Contract- 
ing and  Construction  Company.  The 
warrant  issued  with  the  assessment 
was  in  favor  of  'the  Western  Con- 
tracting and  Construction  Company, 
assignee  of  John  T.  Long,  agents 
or  assigns.'  The  appellant  contends 
that  the  warrant  should  have  been 
issued  in  the  name  of  the  original 
contractor,  and  that  its  issuance  in 
favor  of  his  assignee  was  unauthor- 
ized. The  form  of  warrant  which 
is  prescribed  in  the  street  improve- 
ment act  in  terms  authorizes  and 
empowers  the  contractor,  his  agents 
or  assigns  to  demand  and  receive 
the  several  assessments,  and  the  act 
declares  that  the  warrant  to  be  is- 
sued shall  be  'substantially'  in  this 
form.  The  right  of  the  contractor  to 
assign  the  contract  prior  to  the  com- 
pletion of  the  work  is  recognized 
in  many  portions  of  the  act  and  has 
been  recognized  by  this  court. 

Anderson  v.  De  Urioste,  96  Cal. 
404.  After  he  has  ceased  to  have 
any  interest  in  the  contract,  or  in 
the  assessment  therefor,  there  would 
seem  to  be  no  reason  for  the  issu- 
ance of  the  warrant  in  his  name  es- 
pecially since  the  statute  does  not 
specifically  require  it.  Sections  9 
and  10  of  the  act  designated  the 
assignee  as  the  proper  person  to 
the  warrant  and  assignment 

Abb.   Corp.— 34. 


are  to  be  delivered.  We  hold  there- 
fore, that  a  warrant  in  favor  of  one 
who  is  therein  named  as  the  as- 
signee of  the  original  contractor, 
whose  name  is  also  given,  is  'sub- 
stantially' in  the  form  prescribed 
in  the  act."  Travelers'  Ins.  Co.  v. 
City  of  Denver,  11  Colo.  434;  In- 
ternational Bank  of  St.  Louis  r. 
Franklin  County,  65  Mo.  105. 

eaa  City  of  Little  Rock  v.  United 
States,  103  Fed.  418;  Farmers'  & 
M.  Nat.  Bank  v.  School  Dist.  No. 
53,  6  Dak.  255.  In  this  case  a  school 
board  had  issued  warrants  to  pay 
for  a  school  house  site.  In  speak- 
ing of  their  validity  the  court  said: 
"The  fact  that  the  legislature  has 
in  no  place,  nor  under  any  circum- 
stances, clothed  the  district  board 
with  power  to  create  debts  that 
should  be  binding  obligations  upon 
the  district,  except  by  and  with  the 
consent  of  the  inhabitants  of  the 
district,  is  sufficient  evidence  that 
it  supposed  the  authority  to  incur 
obligations  would  be  more  wisely 
exercised  by  those  who  had  them  to 
pay  than  by  a  board  which  perad- 
venture  might  in  that  regard  be 
moved  by  some  ulterior  purpose. 
In  any  event,  the  legislature,  with- 
in the  statutory  limitations  has  left 
the  matter  entirely  with  the  inhab- 
itants of  the  district  and  empow- 
ered the  district  board  to  act  only 
in  consonance  with  the  will  of  the 
voters  of  the  district,  as  expressed  at 


530 


POWERS. 


§  233a 


law  is,  however,  in  favor  of  the  legality  of  warrants,  orders  or  oth- 
er like  evidences  of  indebtedness  and  the  burden  of  proof  is  upon 
the  party  denying  such  validity.633  The  rule  of  law  which  applied 
to  the  issue  of  negotiable  bonds  or  the  increasing  of  indebtedness 
by  a  de  facto  corporation  also  applies  to  the  validity  of  warrants 
issued  by  a  de  facto  organization.  These  are,  if  otherwise  valid, 
held  good  in  the  hands  of  third  parties  to  whom  they  have  been 
sold.  Obligations  incurred  by  the  inhabitants  of  a  certain  dis- 
trict as  a  rule  cannot  be  avoided  by  the  tax-paying  interests  of 
such  territory.  The  obligation  exists  not  against  the  individuals 
but  against  the  district.63*  In  preceding  sections  the  subject  of 


the  district  meetings.  The  district 
board  in  issuing  these  orders  acted 
without  any  authority  whatever 
and  such  orders  are  therefore,  in- 
valid for  any  purpose." 

Clark  v.  City  of  Des  Moines,  19 
Iowa,  199;  Jefferson  County  Sup'rs 
v.  Arrighi,  54  Miss.  668;  Andrews 
v.  School  Dist.  of  McCook,  49  Neb. 
420,  35  L.  R.  A.  444;  Markey  v. 
School  Dist.  No.  18,  58  Neb.  479, 
78  N.  W.  932,  following  Pomerene 
v.  School  Dist.  No.  56,  56  Neb.  126, 
76  N.  W.  414;  State  v.  Omaha  Nat. 
Bank,  59  Neb.  483,  81  N.  W.  319. 
See,  also,  authorities  cited  §  224, 
note  1. 

ess  wall  v.  Monroe  County,  103  U. 
S.  74;  George  D.  Barnard  &  Co. 
v.  Knox  County,  37  Fed.  563,  2  L. 
R.  A.  426;  Aylesworth  v.  Gratiot 
County,  43  Fed.  350;  Speer  v.  Kear- 
ney County  Com'rs  (C.  C.  A.)  88 
Fed.  749;  Seward  County  Com'rs  v. 
Aetna  Life  Ins.  Co.  (C.  C.  A.)  90 
Fed.  222;  Rollins  v.  Rio  Grande 
County  Com'rs  (C.  C.  A.)  90  Fed. 
675;  Grayson  v.  Latham,  84  Ala. 
646;  Lusk  v.  Perkins,  48  Ark.  238; 
Apache  County  v.  Barth  (Ariz.)  53 
Pac.  187;  San  Juan  County  Com'rs 
r.  Oliver,  7  Colo.  App.  515;  Lake 
County  Com'rs  v.  Standley,  24  Colo. 
1;  Ray  v.  Wilson,  29  Fla.  342,  14 


L.  R.  A.  773;  People  v.  Johnson,  100 
111.  537;  City  of  Connersville  v.  Con- 
nersville  Hydraulic  Co.,  86  Ind.  184; 
Hospers  v.  Wyatt,  63  Iowa,  264; 
Leavenworth  County  Com'rs  v.  Kel- 
ler, 6  Kan.  510;  Cheeney  v.  Inhab- 
itants of  Brookfleld,  60  Mo.  53; 
Mountain  Grove  Bank  v.  Douglas 
County,  146  Mo.  42;  Custer  County 
Com'rs  v.  De  Lana,  8  Okl.  213;  Edin- 
burg  American  Land  &  Mortg.  Co.  v. 
City  of  Mitchell,  1  S.  D.  593,  12  L.  R. 
A.  705;  Chehalis  County  v.  Hutche- 
son,  21  Wash.  82;  Brown  v.  School 
Directors  of  Jacobs,  77  Wis.  27. 

634  Board  of  Education  of  Atchi- 
son  v.  De  Kay,  148  U.  S.  591;  Speer 
v.  Kearney  County  Com'rs  (C.  C. 
A.)  88  Fed.  749.  The  point  was 
urged  here  that  the  warrants  were 
invalid  because  the  law  under  which 
they  were  given  was  unconstitution- 
al. Upon  this  the  court  said: 
"Such  a  law  passes  the  scrutiny  and 
receives  the  approval  of  the  attor- 
ney general,  of  the  lawyers  who 
compose  the  Judiciary  committees  of 
the  legislative  bodies,  of  the  legis- 
lature and  of  the  governor  before  it 
reaches  the  statute  book.  *  *  * 
Courts  declare  its  invalidity  with 
hesitation  and  after  long  delibera- 
tion and  much  consideration,  even 
when  its  violation  of  the  organic 


§  233a 


WARRANTS,  ETC. 


5.U 


incurring  indebtedness  by  public  corporations  has  been  discussed, 
whether  such  indebtedness  exists  as  negotiable  bonds  or  in  other 
forms  and  in  this  connection  attention  has  been  called  to  the 
constitutional  or  statutory  provisions  found  in  every  state  and 
which  limit  the  amount  of  indebtedness  that  can  be  legally  in- 
curred by  public  corporations.  Indebtedness  incurred  in  excess 
of  such  limitations  is  usually  held  void  and  not  capable  of  en- 
forcement.835 Whether  warrants  as  ordinarily  issued  constitute 


law  is  clear  and  never  when  it  is 
doubtful.  Until  the  judiciary  has 
declared  it  void,  men  act  and  con- 
tract and  they  ought  to  act  and  con- 
tract on  the  presumption  that  it  is 
valid  and  where  before  such  a  dec- 
laration is  made,  their  acts  and  con- 
tracts have  affected  public  interest 
or  private  rights,  they  must  be 
treated  as  valid  and  lawful.  The 
acts  of  a  de  facto  corporation  or 
officer  under  an  unconstitutional  law 
before  its  invalidity  is  challenged  in 
or  declared  by  the  judicial  depart- 
ment of  the  government  cannot  be 
avoided  as  against  the  interests  of 
the  public  or  of  third  parties  who 
have  acted  or  invested  in  good 
faith  in  reliance  upon  their  valid- 
ity by  any  ex-post  facto  declaration 
or  decision  that  the  law  under  which 
they  acted  was  void."  Merchants' 
Nat.  Bank  v.  McKinney,  2  S.  D.  106, 
48  N.  W.  841.  The  payment  of  war- 
rants was  sought  to  be  avoided  on 
the  ground  that  there  were  no  coun- 
ty officers  and  therefore  no  county. 
The  court  said:  "So  we  say  here 
the  county  existed  from  the  moment 
it  was  segregated  from  the  other 
portions  of  the  territory,  its  bound- 
aries defined,  and  its  name  given  to 
it,  and  all  the  offices  provided  by 
law  existed.  They  were  vacant,  it 
is  true,  but  they  nevertheless  exist- 
ed, ready  to  be  filled  whenever  cer- 
tain conditions  should  exist.  *  *  * 


We  conclude  therefore,  that  there 
were  de  jure  county  offices  existing 
in  Douglas  county  to  be  filled  and 
that,  when  filled,  the  officers  were 
at  least,  de  facto  officers  and  their 
acts  good  as  to  third  persons  and 
the  public;  and  that  the  board  of 
county  commissioners  of  said  Doug- 
las county  in  issuing  the  warrants 
in  controversy,  constituted  a  de 
facto  board  and  the  warrants  issued 
by  it  are  prima  facie  valid  and  bind- 
ing upon  the  county." 

ess  See  §§  148  et  seq.  Farmers'  & 
M.  Nat.  Bank  v.  School  Dist.  No.  53, 
6  Dak.  255.  "We  think  it  was  the 
purpose  of  the  legislature  to  re- 
strict within  the  limits  specified  by 
the  statute,  the  amount  of  actual 
expenditures  which  could  be  made 
by  the  district  in  any  one  year.  Any 
other  construction  of  this  statute 
would  be  equivalent  to  holding  that 
it  has  no  force  or  effect  and  that 
school  districts  or  school  boards  may 
incur  any  amount  of  indebtedness 
and  bind  the  district  with  its  im- 
mediate payment." 

Andrew  County  v.  Schell,  135  Mo. 
31,  36  S.  W.  206;  Mountain  Grove 
Bank  v.  Douglas  County,  146  Mo. 
42,  47  S.  W.  944;  D  County  Com'rs 
v.  Sauer,  8  Okl.  235;  Municipal  Se- 
curity Co.  v.  Baker  County,  33  Or. 
338,  54  Pac.  174;  City  of  Sherman 
v.  Smith,  12  Tex.  Civ.  App.  580,  35 
S.  W.  294;  Baker  v.  City  of  Seat- 


532 


POWERS. 


233  a 


an  "indebtedness"  within  the  meaning  of  such  constitutional  or 
statutory  phrases  may  depend  upon  the  decisions  of  a  particular 
state  following  what  might  be  termed  a  local  public  policy636  or 
upon  the  construction  given  by  some  courts  to  such  instruments 
that  if  drawn  against  a  tax  levy  or  funds  already  within  the  con- 
trol and  possession  of  the  corporation  they  do  not  constitute  an 
indebtedness.637  Those  provisions  which  require,  before  an  in- 
debtedness can  be  legally  incurred,  the  affirmative  vote  of  the 
electors,  must  be  followed  where  warrants  are  regarded  as  an 
indebtedness,  and  if  issued  without  are  invalid.638 


tie,  2  Wash.  St.  576.  Invalid  war- 
rants, however,  can  be  validated 
under  legislative  authority.  Duryee 
v.  Friars,  18  Wash.  55.  The  consti- 
tutional limitation  does  not  apply 
to  obligations  incurred  in  matters 
essential  to  governmental  mainte- 
nance and  therefore  warrants  issued 
after  such  limitation  had  been 
reached  are  prima  facie  valid.  Roe 
v.  Town  of  Philippi,  45  W.  Va.  785, 
32  S.  E.  224.  The  fact  of  a  debt  in 
excess  of  a  constitutional  limita- 
tion must,  however,  clearly  appear. 
Kane  v.  School  Dist.,  52  Wis.  502. 

«36  George  D.  Barnard  &  Co.  v. 
Knox  County,  37  Fed.  563,  2  L.  R.  A. 
426,  following  Potter  v.  Douglas 
County,  87  Mo.  240;  Koppikus  Y. 
State  Capitol  Com'rs,  16  Cal.  248; 
Henderson  v.  People,  17  Colo.  587. 
Every  appropriation  in  excess  of  the 
constitutional  limitation  should  be 
regarded  as  void.  City  of  Spring- 
field v.  Edwards,  84  111.  626;  Law  v. 
People,  87  111.  385;  Fuller  v.  City  of 
Chicago,  89  111.  282;  In  re  State  War- 
rants, 25  Neb.  659;  State  v.  Parkin- 
son, 5  Nev.  15;  Lorence  v.  Bean, 
18  Wash.  36. 

School  Dist.  No.  3  v.  Western 
Tube  Co.,  5  Wyo.  185,  and  Fenton 
v.  Blair,  11  Utah,  78,  hold  warrants 
•void  issued  in  excess  of  the  Federal 
limitation  on  indebtedness. 


GST  puller  v.  Heath,  89  111.  296; 
Phillips  v.  Reed,  107  Iowa,  331.  "If 
it  appeared  that  the  indebtedness  to 
the  payment  of  which  the  satisfac- 
tion of  plaintiff's  warrant  is  sought 
to  be  postponed  was  incurred  in  ex- 
cess of  the  prescribed  limit  *  *  * 
the  decision  of  this  case  would  be 
a  matter  of  no  difficulty.  It  is  true, 
the  petition  alleges  that  at  the  times 
when  this  indebtedness  was  contract- 
ed the  city  was  in  debt  to  the  limit 
of  the  amount  allowed.  But  it  does 
not  follow  from  this  that  the  in- 
debtedness as  represented  by  these 
warrants  was  necessarily  invalid. 
If  the  city  had  on  hand  or  in  pros- 
pect, at  the  time  these  warrants 
were  issued,  funds  with  which  to 
meet  them  without  trenching  upon 
the  rights  of  creditors,  for  current 
expenses  of  the  city,  then  the  war- 
rants were  valid,  although  such 
funds  may  have  been  thereafter 
wrongfully  applied  to  other  pur- 
poses." Darling  v.  Taylor,  7  N.  D. 
538,  75  N.  W.  766;  Shannon  v.  City 
of  Huron,  9  S.  D.  356,  69  N.  W.  598; 
Lawrence  County  v.  Meade  County, 
10  S.  D.  175,  72  N.  W.  405. 

ess  Farquharson  v.  Yeargin,  24 
Wash.  549,  64  Pac.  717.  The  rule, 
however,  does  not  apply  to  warrants 
issued  in  excess  of  a  constitutional 
limitation  without  the  consent  of 


§  233b 


WARRANTS,  ETC. 


533 


(b)  Warrants  invalid  because  of  purpose  for  which  issued. 
Again  a  warrant  may  be  invalid  because  issued  for  a  purpose 
which  is  not  considered  or  regarded  by  the  courts  as  a  public 
one ;  the  basis  of  all  legal  expenditure  of  public  moneys  by  public 
corporations  is  the  fact  of  the  disbursement  for  some  purpose 
germane  to  their  organization  and  the  transaction  of  public  busi- 
ness by  them.  Clearly,  therefore,  if  warrants  are  issued  by 
public  corporations,  although  regular  in  their  form,  for  a  pur- 
pose not  public  in  its  character,  they  will  be  regarded  as  illegal, 
and  not  being  considered  negotiable  in  their  character,  this  ques- 
tion can  be  raised  even  where  they  have  passed  into  the  hands  of 
bona  fide  holders  for  value  and  before  maturity.639 


the  required  affirmative  vote  when 
Issued  in  payment  of  compulsory 
obligations.  The  cost  of  construct- 
ing a  court  house  and  the  salaries 
of  county  officials  are  of  such  a 
character.  The  court  in  part  say: 
"It  is  contended  that  the  warrants 
issued  after  the  county  had  reached 
its  limit  of  indebtedness  were  illegal. 
It  appears  that  these  warrants  were 
issued  for  salary  purposes  and  to 
complete  the  payment  upon  the 
county  court  house.  *  *  *  At 
the  time  the  court  house  was  erect- 
ed such  a  county  building  was  ab- 
solutely necessary  for  county  offi- 
cers and  a  proper  care  of  the  county 
records.  Republic,  the  county  seat, 
was  a  new  mining  camp  and  but  a 
short  time  before  had  been  destroyed 
by  fire.  Most  of  the  buildings  were 
small  frame  cabins  none  of  them 
being  suitable  places  to  deposit  the 
county  records  or  to  accommodate 
the  county  offices.  While,  ordina- 
rily, warrants  issued  in  payment  of 
money  expended  in  building  a  court 
house  would  not  fall  under  the  class 
of  compulsory  obligations  the  condi- 
tions existing  in  Republic  at  the 
time  of  the  erection  of  the  court 
house  were  such  as  to  bring  the 
warrants  for  the  erection  of  this 


particular  court  house  within  the 
rule  *  *  *  because  it  may  be 
fairly  inferred  that  no  other  build- 
ing could  be  had  for  the  purpose 
owing  to  the  destruction  of  the  town 
by  fire."  Rauch  v.  Chapman,  16 
Wash.  568,  36  L.  R.  A.  407. 

639  First  Nat.  Bank  of  Lansdale  v. 
Wyandotte  County  Com'rs  (C.  C.  A.) 
68  Fed.  878;  Littler  v.  Jayne,  124 
111.  123,  16  N.  E.  374;  'Long  v.  Boone 
County,  32  Iowa,  181.  Warrants 
valid  issued  in  payment  of  a  con- 
tract for  grading  and  improving  the 
public  roads  of  a  county. 

Salamanca  Tp.  v.  Jasper  County 
Bank,  22  Kan.  696;  D  County  Com'rs 
v.  Sauer,  8  Okl.  235;  Custer  County 
Com'rs  v.  De  Lana,  8  Okl.  213,  57 
Pac.  162.  The  presumption,  how- 
ever, exists  that  such  warrants  are 
issued  for  lawful  corporate  purpose. 
King  v.  Sullivan  County,  67  Tenn. 
(8  Baxt.)  329;  James  v.  City  of  Se- 
attle, 22  Wash.  654,  62  Pac.  84.  The 
payment  of  expenses  incurred  by 
city  officials  while  on  a  trip  to 
various  cities  investigating  munici- 
pal affairs  was  not  held  as  a  public 
purpose.  The  court  say  in  part: 
"The  members  of  the  city  council 
are  trustees.  The  body  holds  a  trust 
for  the  inhabitants  of  the  city.  The 


534  POWERS.  § 

(c)  Invalidity  resulting  from  character.  By  the  constitution 
of  the  United  States  the  states  are  prohibited  from  coining  money, 
emitting  bills  of  credit  or  making  anything  but  gold  and  sil- 
ver coin  a  legal  tender  in  payment  of  debts.  At  times  states 
have  authorized  the  issuance  of  warrants  which  are  receivable 
within  the  state  for  taxes,  debts  or  other  obligations  due  them; 
the  question  of  their  validity  has  arisen,  the  contention  being 
made  that  such  warrants  are  "currency"  within  the  meaning 
of  the  Federal  constitution,  the  emission  of  which  is  there  pro- 
hibited. The  decisions,  however,  have  been  adverse  to  such  con- 
tention.640 

terms  of  the  trust  are  fixed  by  legis-  the  willingness  of  people  to  take 
lation  and  no  expenditure  of  money  them  in  payment  of  debts  due  them 
belonging  to  the  city  can  be  made  from  the  state  and  that  while  in 
without  express  authority  or  implied  their  hands  others  might  receive 
authority  by  reason  of  a  necessary  them  in  payment  of  debts,  was  a 
granted  power.  Where  this  author-  possibility  or  probability  depending 
ity  does  not  exist  the  council  is  upon  whether  the  person  taking 
without  power  to  authorize  the  pay-  them  had  opportunity  to  use  them 
ment  of  the  claim  against  the  city,  to  pay  some  of  his  own  debts  to 
and  upon  sound  principle  it  cannot  the  state.  That  he  might  on  some 
be  conceded  that  the  council  had  the  occasion  be  able  to  so  use  the  war- 
power  to  authorize  the  payment  of  rant  as  to  enable  him  to  thereby 
the  claim  of  appellant.  *  *  *  discharge  an  obligation  from  him- 
Where  the  council  is  without  power  self  to  a  third  person  who  was  will- 
to  authorize  the  payment  of  the  ing  to  accept  it  does  not  bring  the 
claim,  the  officer  may  properly  re-  warrant  so  used  within  the  ordinary 
fuse  to  countersign  the  warrant  di-  meaning  of  the  term  'money.'  It  is 
recting  the  payment  of  such  claim."  not  money  in  that  sense."  See,  also, 
6*0  Houston  &  T.  C.  R.  Co.  v.  Tex-  Craig  v.  Missouri,  4  Pet.  (U.  S.) 
as,  177  U.  S.  66.  "These  warrants  410;  Briscoe  v.  Bank  of  Kentucky, 
were  payable  to  the  individual  to  11  Pet.  (U.  S.)  257;  Woodruff  v. 
whom  the  state  was  indebted,  or  to  Trapnall,  10  How.  (U.  S.)  190; 
bearer,  and  were  issued  to  a  creditor  Thomas  v.  City  of  Richmond,  79  U. 
of  the  state.  That  the  legislature  S.  (12  Wall.)  349;  Sprott  v.  United 
may  have  desired  to  facilitate  the  States,  87  U.  S.  (20  Wall.)  459; 
use  of  the  warrants  by  these  provi-  Poindexter  v.  Greenhow,  114  U.  S. 
sions  is  perhaps  true  but  the  mem-  270  (Virginia  coupon  cases) ;  Baldy 
bers  of  the  legislature  knew  that  to  v.  Hunter,  171  U.  S.  388;  Lindsey  v. 
issue  the  warrants  to  circulate  as  Rottaken,  32  Ark.  619;  Cothran  v. 
money  would  be  to  condemn  them  City  of  Rome,  77  Ga.  582;  Dively  v. 
from  the  start.  That  the  promise  City  of  Cedar  Falls,  21  Iowa,  565; 
should  be  made  to  receive  them  in  Cheeney  v.  Inhabitants  of  Brookfleld, 
payment  of  debts  due  the  state  60  Mo.  53. 
would  add  to  their  usefulness  and  to 


§  234 


WARRANTS.   ETC. 


535 


(d)  Refunding.  Warrants  issued  for  the  refunding  of  a  prior 
indebtedness  will  partake  of  the  original  character  of  such  in- 
debtedness. Void  debts  cannot  be  rendered  valid  by  a  mere 
change  of  form,641  and  the  reverse  of  this  rule  is  also  true  that 
indebtedness  which  is  valid  and  binding  cannot  be  rendered  in- 
valid by  the  issue  of  warrants  for  which  there  is  no  authority.842 
As  a  rule,  in  the  absence  of  authority,  warrants  outstanding  can- 
not be  funded  by  the  issue  of  negotiable  bonds,  an  instrument  of 
a  different  character  and  which,  owing  to  this  fact,  may  increase 
the  debt  beyond  a  constitutional  limit;  such  refunding  bonds  are 
usually  held  void.643 

§  234.    Interest  payable. 

Warrants  are  non-interest  bearing,  prima  facie  evidences  of 
indebtedness.  If  made  payable  at  a  certain  date,  they  bear  in- 
terest from  and  after  that  date  if  presented  and  payment  is  re- 
fused.644 A  demand  is  generally  necessary  to  start  interest  run- 


s*1  Royster  v.  Granville  County 
Com'rs,  98  N.  C.  148. 

«*2  Otis  v.  Inhabitants  of  Stock- 
ton, 76  Me.  506;  Brown  v.  Bon 
Homme  County,  1  S.  D.  216,  46  N. 
W.  173.  Neither  can  a  valid  debt  as 
evidenced  by  a  warrant  be  rendered 
invalid  by  the  issue  of  either  void 
refunding  warrants  or  bonds.  See 
O'Connor  v.  Parish  of  East  Baton 
Rouge,  31  La.  Ann.  221;  City  of 
Plattsmouth  v.  Fitzgerald,  10  Neb. 
401. 

043  Whitwell  v.  Pulaski  County,  2 
Dill.  249,  Fed.  Gas.  No.  17,605; 
Richards  v.  Klickitat  County,  13 
Wash.  509.  This  can  be  done,  how- 
ever, if  constitutional  authority  ex- 
ists. 

6*4  City  of  New  Orleans  v.  Warner, 
175  U.  S.  120,  modifying  decree  in 
(C.  C.  A.)  81  Fed.  645;  Marks  v. 
Purdue  University,  37  Ind.  155; 
Rooney  v.  Dubuque  County,  44  Iowa, 
128.  An  actual  tender  of  an  amount 
due  on  a  warrant,  alone  can  sus- 


pend the  accumulation  of  interest. 
Creole  Steam  Fire  Engine  Co.  v. 
City  of  New  Orleans,  39  La.  Ann. 
981;  State  v.  Hickman,  11  Mont.  541, 
29  Pac.  92.  No  special  appropria- 
tion necessary  for  the  payment  of 
interest  on  outstanding  warrants. 
Hotchkiss  v.  Marion,  12  Mont.  218, 
29  Pac.  821.  Holding  unconstitu- 
tional compiled  statutes,  division  5, 
§  794  relating  to  the  payment  of  in- 
terest on  unpaid  warrants  after  de- 
mand. 

Read  v.  City  of  Buffalo,  74  N.  Y, 
463;  Shipley  v.  Hacheney,  34  Or. 
303;  Seton  v.  Hoyt,  34  Or.  266,  55 
Pac.  967;  Monteith  v.  Parker,  36 
Or.  170,  59  Pac.  192.  Where  unpaid 
warrants  are  funded,  the  holder  is 
entitled  to  interest  from  the  date  of 
the  original  warrant. 

Davidson  County  v.  Olwill,  72 
Tenn.  (4  Lea)  28;  Gibson  County 
v.  Rains, 79  Tenn.  (11  Lea)  22;  Lang- 
don  v.  City  of  Castleton,  30  Vt.  285; 
Seymour  v.  City  of  Spokane,  6 


536 


POWERS. 


§  235 


ning  upon  them.     This  rule  also  applies  where  they  are  payable 
on  demand  and  on  presentation  payment  is  refused.645 

§  235.    Actions  on  warrants. 

"Warrants  being  non-negotiable  and  merely  prima  facie  evi- 
dence of  indebtedness  against  the  public  corporation  issuing 
them  are  subject  to  all  equities  existing  between  parties  even 
when  they  are  in  the  hands  of  a  bona  fide  holder  who  has  pur- 
chased the  same  and  paid  value  therefor  before  maturity.  In  an 
action  brought  by  such  a  holder  against  the  maker  with  its  con- 
sent,948 in  case  of  a  refusal  to  pay,  all  the  defenses  which  may 


Wash.  362;  City  of  Scranton  v.  Hyde 
Park  Gas  Co.,  102  Pa.  382;  Mcln- 
tosh  T.  Salt  Lake  County,  23  Utah, 
504,  65  Pac.  483;  Alexander  v. 
Oneida  County,  76  Wis.  56,  45  N. 
W.  21. 

Where  the  statutes  prohibit  the 
payment  of  interest  on  county  or- 
ders, it  cannot  be  recovered,  but 
see  the  following  cases  holding  that 
municipal  warrants  or  orders  do  not 
bear  interest  after  they  have  be- 
come due  and  payable  or  after  de- 
mand and  nonpayment  for  want  of 
funds.  Madison  County  v.  Bartlett,2 
111.  (1  Scam.)  67;  Hardin  County  v. 
McFarlan,82  111.  138;  City  of  Chicago 
v.  English,  80  111.  App.  163;  Hall  v. 
Jackson  County,  95  111.  352;  War- 
ren County  Sup'rs  v.  Klein,  51  Miss. 
807;  Com.  v.  Philadelphia  County 
Com'rs,  4  Serg.  &  R.  (Pa.)  125;  Ashe 
v.  Harris  County,  55  Tex.  49;  Alex- 
ander v.  Oneida  County,  76  Wis.  56. 

645  City  of  New  Orleans  v.  Warner, 
175  U.  S.  120.  The  commencement 
of  a  suit  will  be  sufficient  demand 
to  make  the  warrant  carry  interest 
from  that  time.  Ter.  v.  Cascade 
County  Com'rs,  8  Mont.  396,  7  L. 
R.  A.  105;  Shipley  v.  Hacheney,  34 
Or.  303,  55  Pac.  971;  Monteith  v. 
Parker,  36  Or.  170,  59  Pac.  192: 


Soule  v.  City  of  Seattle,  6  Wash.  315, 
33  Pac.  384,  1080.  Interest  is  not 
payable  on  improvement  warrants 
until  after  the  city  issuing  them  is 
entitled  to  interest  on  delinquent 
taxes  due  under  the  assessment  form- 
ing the  fund  for  the  payment  of 
such  warrants.  Special  statutes  of 
particular  states  may  provide  for 
the  payment  of  interest  on  warrants 
presented  for  payment  and  remain- 
ing unpaid  for  want  of  funds.  Such 
provisions  will,  of  course,  establish 
rights  not  otherwise  existing.  See 
Jacks  &  Co.  v.  Turner,  36  Ark.  89. 
Such  a  statute  held  unconstitutional 
in  Arkansas  being  in  contravention 
of  the  constitutional  provision  pro- 
hibiting counties  from  issuing  in- 
terest-bearing evidences  of  indebted- 
ness. 

Hall  v.  Jackson  County,  95  111. 
353;  Marks  v.  Purdue  University, 
37  Ind.  155;  Rooney  v.  Dubuque 
County,  44  Iowa,  128;  Robbins  v. 
Lincoln  County  Ct.,  3  Mo.  57;  Skin- 
ner v.  Platte  County,  22  Mo.  437; 
State  v.  Trustees  of  Town  of  Pa- 
cific, 61  Mo.  155;  Higgins  v.  Ed- 
wards, 2  Mont.  585;  Seton  v.  Hoyt, 
34  Or.  266,  43  L.  R.  A.  634;  Monteith 
v.  Parker,  36  Or.  170,  59  Pac.  192; 
Freeman  v.  City  of  Huron,  10  S.  D. 


§  235 


WARRANTS,  ETC. 


537 


be  available  or  to  which  they  were  subject  in  the  hands  of  the 
original  payee  may  be  taken  advantage  of  by  the  defendant.647 
And  all  conditions  which  under  other  circumstances  would  create 
an  estoppel  against  one  of  the  parties  to  the  transaction  will 
operate  here  to  the  same  effect.648  It  is  not  necessary  for  the 
holder  to  proceed  by  mandamus  against  the  proper  disbursing 
officer  of  the  corporation,  but  he  may  sue  it  direct.649  Mandamus 
may,  however,  be  the  ordinary  or  exclusive  remedy  for  the  col- 
lection of  a  corporate  warrant.650  If  warrants  are  payable,  as 
stated  in  a  preceding  section,651  from  a  specific  fund  or  by  their 
terms  are  made  payable  from  such  fund,  there  does  not  exist  a 
general  obligation  to  pay  them  from  revenues  or  funds  raised  in 


368;  Williams  v.  Shoudy,  12  Wash. 
362;  City  of  New  Orleans  v.  Warn- 
er, 175  U.  S.  120. 

646  Klein  v.  Warren  County  Sup'rs, 
51   Miss.    878.     See,    also,    Klein   v. 
Smith  County  Sup'rs,  54  Miss.  254. 

647  Coffin      v.      Kearney      County 
Com'rs,  114  Fed.  518.     The  defense 
that   warrants    issued   in   excess   of 
the  statutory  limitation  as  to  amount 
held  not  available  where  the  fact  is 
undisputed  that  there  has  been  no 
assessment   upon   which   to   base   a 
determination  of  what  is  the   stat- 
utory amount. 

Grayson  v.  Latham,  84  Ala.  546; 
Pulaski  County  v.  Lincoln,  9  Ark. 
320;  Wood  v.  Bangs,  1  Dak.  179. 
An  action  for  equitable  relief  in- 
volving the  validity  of  warrants 
cannot  be  maintained  until  the  par- 
ties are  placed  in  statu  quo.  Polk 
v.  Tunica  County  Sup'rs,  52  Miss. 
422;  Crawford  v.  Noble  County 
Com'rs,  8  Okl.  450.  See,  also,  §  230, 
supra. 

6*8  Thompson  v.  Searcy  County 
(C.  C.  A.)  57  Fed.  1030,  following 
Fones  Hardware  Co.  v.  Erb,  54  Ark. 
645,  13  L.  R.  A.  353. 

6*9  Jerome  v.  Rio  Grande  County 
Com'rs,  18  Fed.  873;  Thompson  v. 


Searcy  County  (C.  C.  A.)  57  Fed. 
1030;  School  Dist.  No.  7  v.  Reeve, 
56  Ark.  68;  Travelers'  Ins.  Co.  v.  City 
of  Denver,  11  Colo.  434;  Cook  County 
v.  Schaffner,  46  111.  App.  611;  People 
v.  Clark  County  Sup'rs,  50  111.  213; 
City  of  Connersville  v.  Connersville 
Hydraulic  Co.,  86  Ind.  184;  Wood 
v.  State,  155  Ind.  1;  Campbell  v.  Polk 
County,  3  Iowa,  467;  Mills  County 
Nat.  Bank  v.  Mills  County,  67  Iowa, 
697;  Benham  v.  Parish  of  Carroll, 
28  La.  Ann.  343;  International  Bank 
v.  Franklin  County,  65  Mo.  105; 
Knapp  v.  City  of  Hoboken,  38  N.  J. 
Law,  371;  Raton  Waterworks  Co.  v. 
Town  of  Raton,  9  N.  M.  70;  Gold- 
smith v.  Baker  City,  31  Or.  249,  49 
Pac.  973;  Simmons  v.  Davis,  18  R. 
I.  46;  Alexander  v.  Oneida  County, 
76  Wis.  56;  Brown  v.  School  Direct- 
ors of  Jacobs,  77  Wis.  27. 

sso  Davenport  v.  Dodge  County, 
105  U.  S.  237;  Chickaming  Tp.  v. 
Carpenter,  106  U.  S.  663;  State  v. 
Clay  County,  46  Mo.  231;  Mansfield 
v.  Fuller,  50  Mo.  338;  Klein  v.  Smith 
County  Sup'rs,  58  Miss.  540;  Greeley 
v.  Cascade  County,  22  Mont.  580; 
Abernethy  v.  Town  of  Medical  Lake, 
9  Wash.  112. 

65i  See  §  227. 


538 


POWERS. 


any  other  manner  or  for  any  other  purpose.  The  holder  of  such 
warrants  is  limited  in  his  recovery  to  the  fund  existing  for  their 
payment.652  This  principle,  however,  is  not  applied  to  the  ex- 
tent that  a  public  corporation  will  be  justified  in  refusing  to  levy 
or  collect  the  taxes  or  special  assessments  which  form  the  speci- 
fied fund.  In  case  of  refusal  on  the  part  of  public  officers  they 
can  be  compelled  by  mandamus  to  perform  the  duties  imposed 
upon  them  by  law  in  this  regard.653  Neither  will  a  public  cor- 
poration be  excused,  by  a  plea  of  lack  of  funds,  from  paying 
warrants  drawn  upon  a  special  fund  where  the  moneys  in  this 
fund  have  been  illegally  withdrawn  and  used  for  other  pur- 
poses,654 or  where  the  public  corporation  has  rendered  itself  in- 


652  Warner    v.    City    of    New    Or- 
leans, 167  U.  S.  467.     Where  a  mu- 
nicipality   issues    warrants    payable 
from  a  certain  fund,  it  is  estopped 
to    set    up    in    defense    an    action 
against  it  on  such  warrants  that  it 
had  discharged  claims  against  such 
fund   in  excess  of  the  amount  col- 
lected;    the    maintenance    of    such 
fund  being  practically  abandoned. 

United  States  v.  King,  74  Fed. 
493;  Wilder  v.  City  of  New  Orleans, 
87  Fed.  843.  The  holders  of  special 
drainage  warrants  not  restricted  for 
their  payment  to  the  special  fund 
from  which  they  were  originally  de- 
signed to  be  paid.  Bush  v.  Wolf,  55 
Ark.  124;  Forbes  v.  Grand  County 
Com'rs,  23  Colo.  344;  Bank  of  Na- 
cona  v.  March  (Tex.  Civ.  App.)  51 
S,  W.  266;  Northwestern  Lumber 
Co.  v.  City  of  Aberdeen,  22  Wash. 
404. 

653  United  States  v.  Macon  County 
Ct.,  75  Fed.  259;  Warner  v.  City  of 
New  Orleans,  87  Fed.   829;    City  of 
New  Orleans  v.   Warner,  175  U.   S. 
120;   Knapp  v.  City  of  Hoboken,  38 
N.   J.  Law,   371.     In  this   case   the 
remedy  of  the  warrant  holder  was 
held  to  be  by  action  of  debt  not  by 
mandamus   to    compel    the    enforce- 


ment of  assessments.  Theis  v. 
Washita  County  Com'rs,  9  Okl.  643. 
The  proceeding  by  mandamus  may 
be  the  proper  one  authorized  by  law 
and  holders  of  warrants  may  not 
have  the  option  to  proceed  in  any 
other  manner  to  enforce  their  obli- 
gations against  the  corporation.  Cit- 
ing Knox  County  Com'rs  v.  Aspin- 
wall,  24  How.  (U.  S.)  376;  Rock 
Island  County  Sup'rs  v.  United 
States,  71  U.  S.  (4  Wall.)  435;  City 
of  Davenport  v.  Lord,  76  U.  S.  (9 
Wall.)  409;  Washington  County 
Sup'rs  v.  Durant,  76  U.  S.  (9  Wall.) 
415;  Riggs  v.  Johnson  County,  73 
U.  S.  (6  Wall.)  166;  Elliott  County 
v.  Kitchen,  77  Ky.  (14  Bush)  289; 
Limestone  County  Com'rs  Ct.  v. 
Rather,  48  Ala.  434;  Diggs  v.  Lob- 
sitz,  4  Okl.  232;  Com.  v.  Select  & 
Common  Councils  of  Pittsburgh,  34 
Pa.  496. 

Bank  of  British  Columbia  v.  City 
of  Port  Townsend,  16  Wash.  450; 
Sharp  v.  City  of  Mauston,  92  Wis. 
629. 

es*  Hockaday  v.  Chaffee  County 
Com'rs,  1  Colo.  App.  362,  29  Pac. 
287;  Schulenburg  &  Boeckler  Lum- 
ber Co.  v.  City  of  East  St.  Louis, 
63  111.  App.  214;  Valleau  v.  New- 


WARRANTS,  ETC. 


539 


capable  of  creating  such  fund  in  the  manner  originally  in- 
tended.655 In  the  absence  of  the  necessary  moneys  in  the  proper 
fund,  no  right  of  action  will  accrue  against  the  public  corpora- 
tion where  the  taxes  or  assessments  have  been  properly  levied 
and  collected  or  remain  partially  uncollected.  It  is  generally 
optional  with  the  holder  of  warrants  in  case  of  a  refusal  to  levy 
taxes  for  their  payment  to  compel  by  mandamus  the  officials  to 
perform  their  duties  or  to  sue  the  public  corporation.656  The 
legal  character  of  different  classes  or  kinds  of  warrants  as  bring- 
ing them  within  the  operation  of  the  statutes  of  limitation  de- 
pends entirely  upon  the  construction  given  them  by  the  courts  of 


ton  County,  72  Mo.  593.  The  rule  in 
the  text,  however,  does  not  apply  to 
warrants  issued  without  authority, 
and  for  a  debt  which  the  city  could 
not  legally  contract. 

Pollock  v.  Stanton  County,  57  Neb. 
399;  Ayres  v.  Thurston  County,  63 
Neb.  96,  88  N.  W.  178;  Brewer  v. 
Otoe  County,  1  Neb.  373;  Blackman 
v.  City  of  Hot  Springs,  14  S.  D.  497, 
85  N.  W.  996;  State  Sav.  Bank  v. 
Davis,  22  Wash.  406;  New  York  Se- 
curity &  Trust  Co.  v.  City  of  Ta- 
coma,  21  Wash.  303,  57  Pac.  810. 
The  rule  applies  where  funds  ap- 
plicable to  the  payment  of  certain 
warrants  have  been  placed  for  de- 
posit in  banks  subsequently  becom- 
ing insolvent  with  a  resultant  loss 
of  such  moneys. 

Quaker  City  Nat.  Bank  v.  City  of 
Tacoma,  27  Wash.  259,  67  Pac.  710. 
The  city  held  not  generally  liable, 
the  remedy  of  the  warrant  holder  be- 
ing an  action  in  damages  for  the 
misappropriation. 

ess  City  of  New  Orleans  v.  Warner, 
175  U.  S.  120;  Louisiana  Nat.  Bank 
v.  Board  of  Liquidation,  30  La.  Ann. 
1356. 

656  Board  of  Improvement  v.  Mc- 
Manus,  54  Ark.  446;  Mills  County 
Nat.  Bank  v.  Mills  County,  67  Iowa, 
697.  "The  question  is,  how  is  the 


owner  of  the  warrants  to  enforce 
payment?  There  is  no  such  privity 
between  him  and  the  taxpayers  that 
any  action  or  proceeding  can  be 
maintained  against  them.  It  is 
claimed  that  a  demand  should  be 
made  on  the  board  of  supervisors  to 
levy  a  tax  and  that  no  suit  can  be 
maintained  without  such  demand. 
This  position  cannot  be  maintained. 
It  is  the  duty  of  the  county  to  make 
the  levy  without  a  demand.  It  might 
with  the  same  propriety,  be  claimed 
that  the  holder  of  any  other  war- 
rant upon  the  county  must  make  a 
demand  that  a  tax  be  levied  to  pay 
his  warrant  before  he  can  maintain 
an  action.  The  county  has  an  un- 
doubted right  to  make  any  proper 
and  lawful  defense  to  these  war- 
rants. If  it  has  no  defense,  the 
plaintiff  is  entitled  to  judgment  and 
to  the  enforcement  of  payment  by 
the  levy  of  a  tax  in  obedience  to  the 
requirements  of  the  statute.  *  *  * 
The  law  contemplates  that  the  own- 
ers of  property  benefited  by  the  ditch 
must  pay  the  cost  of  its  construc- 
tion and  if  the  plaintiff  obtains  judg- 
ment upon  the  warrants,  the  method 
of  raising  means  for  its  payment  is 
plainly  pointed  out  by  statute." 
Hunter  v.  Mobley,  26  S.  C.  192. 


540 


POWERS. 


§  23e 


a  state.657  In  actions  against  public  corporations  on  warrants 
valid  on  their  face,  the  presumption  of  law  exists  that  they  were 
lawfully  and  legally  issued  and  the  burden  of  establishing  their 
illegality  or  the  fraudulent  and  illegal  character  of  the  claims 
upon  which  they  wejre  based  is  on  the  defendant.858 

§  236.    Their  payment. 

Where  the  power  to  audit,  allow  and  authorize  the  issuance  of 
warrants  is  by  law  placed  in  the  hands  of  certain  designated 
officials  of  the  public  corporation  upon  the  presentation  of  a 
warrant  duly  issued,  other  officials  have  no  discretion  in  regard 
to  its  payment;  this  exists  as  an  imperative  duty  capable  of  en- 
forcement if  there  are  sufficient  funds.659  The  fact  that  the  cor- 


es? Knox  County  v.  Morton  (C.  C. 
A.)  68  Fed.  787,  construing  Rev.  St. 
Mo.  1889,  §  3195,  relating  to  county 
warrants.  Hintrager  v.  Richter,  85 
Iowa,  222,  52  N.  W.  188;  Wilson  v. 
Knox  County,  132  Mo.  387,  34  S.  W. 
45,  477;  Borough  of  Port  Royal  v. 
Graham,  84  Pa.  426;  Leach  v.  Wil- 
son County,  68  Tex.  353. 

ess  San  Juan  County  Com'rs  v. 
Oliver,  7  Colo.  App.  515,  44  Pac.  362; 
Everts  v.  District  Tp.  of  Rose  Grove, 
77  Iowa,  37;  Mountain  Grove  Bank 
v.  Douglas  County,  146  Mo.  42,  47 
S.  W.  944;  Taylor  v.  Chickasaw 
County  Sup'rs,  74  Miss.  23,  19  So. 
834;  Freeman  v.  City  of  Huron,  10 
S.  D.  368,  73  N.  W.  260.  The  de- 
fendant urged  on  appeal  that  the 
plaintiff  had  not  shown  the  statute 
not  complied  with  so  far  as  the 
books  of  the  treasurer  were  con- 
cerned. The  court  said:  "The  city 
treasurer  is  an  officer  of  the  city, 
over  whom  the  warrant  holder  has 
no  control  and  for  whose  neglect  to 
perform  his  duty  he  is  not  respon- 
sible. If,  therefore,  the  books  of 
the  treasurer  were  not  properly  kept 
and  the  proper  entries  made  there- 
in, the  failure  is  the  failure  of  the 


city  by  its  officers,  and  it  cannot 
take  advantage  of  such  omission  as 
against  a  warrant  holder  who  has 
done  all  that  the  law  requires  him 
to  do,  namely  to  present  his  war- 
rant for  payment  and  have  it  regis- 
tered for  payment.  As  it  was  in 
fact  registered,  the  court  will  pre- 
sume that  he  paid  or  tendered  the 
required  fee,  or  that  payment  of  the 
same  was  waived  by  the  treasurer." 

Scott  v.  School  Directors  of  Arm- 
strong, 103  Wis.  280,  79  N.  W.  239. 

659  Keller  v.  Hyde,  20  Cal.  593; 
Von  Schmidt  v.  Widber,  105  Cal. 
151;  Bank  of  Staten  Island  v.  City 
of  New  York,  68  App.  Div.  231,  74 
N.  Y.  Supp.  284;  Bush  v.  Geisy,  16 
Or.  355;  Simmons  v.  Davis,  18  R.  I. 
46;  Culberson  v.  Gilmer  Bank,  20 
Tex.  Civ.  App.  565,  50  S.  W.  195; 
Collier  v.  Peacock,  93  Tex.  255,  54 
S.  W.  1025;  Webster  T.  Douglas 
County,  102  Wis.  181,  77  N.  W.  885, 
78  N.  W.  451.  If  a  payment  of  war- 
rants is  marked  by  haste  and  with 
apparent  collusion  in  face  of  lack 
of  funds  to  meet  them,  the  officers 
paying  them  may  be  personally  lia- 
ble for  the  repayment  of  the  money 
disbursed. 


§   237  WARRANTS,  ETC.  541 

poration  issuing  the  warrant  may  be  its  owner  is  ordinarily  no 
ground  for  the  refusal  of  a  subordinate  board  or  official  to  refuse 
payment.660  "Where  warrants  are  authorized  under  law  to  be 
issued  by  a  certain  designated  official  body,  an  order  for  pay- 
ment of  a  certain  claim  by  another  court  predicated  upon  a  judg- 
ment rendered  by  it  will  be  sufficient  authority  for  the  payment 
of  a  warrant  issued  upon  such  judgment.661  When  refunding 
bonds  have  been  issued  to  take  up  outstanding  warrants  and  the 
bonds  are  subsequently  established  as  void,  the  warrants  in  the 
meantime  having  been  destroyed,  this  does  not  give  a  holder  of 
such  warrants  any  right  of  action  for  damages  against  the  cor- 
poration for  the  destruction ;  he  can  recover,  however,  the  full 
value  of  the  warrants,662  and  this  is  true  where  the  same  state  of 
facts  exist  except  the  destruction  of  warrants  and  the  question  of 
damages.663  The  payment  of  warrants  issued  in  settlement  of  a 
claim  subsequently  held  invalid  or  of  like  warrants  can  be  pro- 
hibited and  all  officials  will  be  bound  by  orders  of  the  proper 
authorities  to  this  effect.664  The  payments  of  warrants  illegally 
drawn  or  issued  may  be  enjoined  and  the  warrants  directed  can- 
celed by  a  court  of  equity  upon  the  complaint  of  a  taxpayer.865 

§  237.    Presentation  for  payment. 

As  a  rule,  warrants  must  be  presented  to  and  a  demand  made 
for  payment  of  the  proper  disbursing  officer  of  the  corporation. 
This  is  necessary  that  the  holder  may  proceed  by  mandamus 
against  the  official  to  compel  a  payment  or  to  bring  an  actioit 
based  upon  them  and  that  interest  may  commence  to  run.666 

sec  Louisiana  Nat.  Bank  v.  Board  Davis,  23  Nev.  318;  Ter.  v.  Browne, 

of  Liquidation,  30  La.  Ann.  1356.  7  N.  M.   568;    Frankl  v.   Bailey,   31 

eel  United  States  v.  King,  74  Fed.  Or.  285,  50  Pac.  186;  State  v.  Walker 

493.  (Tenn.)  47  S.  W.  417;  Lane  v.  Hunt 

662  O'Connor    v.    Parish    of    East  County,  13  Tex.  Civ.  App.  315. 

Baton  Rouge,  31  La.  Ann.  221.  ees  Andrews  v.  Pratt,  44  Cal.  309; 

eesGause  v.  City  of  Clarksville,  1  Ackerman  v.  Thummel,  40  Neb.  95; 

McCrary,    78,    1    Fed.    353;    Deyo   v.  Crawford   v.   Noble   County   Com'rs, 

Otoe  County,  37  Fed.  247;    Coffin  v.  8  Okl.  450;  Dorothy  v.  Pierce,  27  Or. 

Kearney    County    Com'rs,    114    Fed.  373;   State  v.  Metschan,  32  Or.  372, 

518;    City    of    Plattsmouth    v.    Fitz-  41   L.  R.  A.   692;    Savage  v.   Stern- 

gerald,  10  Neb.  401.  berg,    19    Wash.    679;     Webster    v. 

6C4  polk    County    v.    Sherman,    99  Douglas  County,  102  Wis.  181. 

Iowa,  60;  Taylor  v.  Chickasaw  Coun-  6«6  Warner  v.  City  of  New  Orleans, 

ty    Sup'rs,    74    Miss.    23;    Hayes    v.  87  Fed.  829;  Grayson  v.  Latham,  84 


542 


POWERS. 


238 


§  238.    Payment;  the  amount. 

Public  officers  have  no  authority  to  bind  their  principal  for  the 
payment  of  more  than  the  face  of  a  warrant  although  it  may  be 
at  a  discount  and  the  sum  realized  from  its  sale  at  the  discount 
price  will  bring  to  the  holder  a  sum  less  than  the  bill  or  account 
rendered  by  him  which  has  been  approved,  audited  and  allowed 
by  the  proper  authorities.667  A  warrant  issued  either  by  fraud 
or  mistake  for  an  amount  in  excess  of  the  sum  actually  due  on  the 
account  or  bill  rendered  and  to  pay  which  it  was  intended,  is 
valid  only  for  the  amount  for  which  it  should  have  been  properly 
issued.668 


Ala.  546;  Apache  County  v.  Earth 
(Ariz.)  53  Pac.  187.  The  statute  of 
limitation  does  not  commence  to  run 
on  county  warrants  until  there  is  a 
fund  in  the  treasury  for  their  pay- 
ment. 

City  of  Central  v.  Wilcoxen,  3 
Colo.  566;  Johnson  v.  Wakulla  Coun- 
ty, 28  Fla.  720,  9  So.  690;  Bodman  v. 
Johnson  County,  115  Iowa,  296,  88  N. 
W.  331;  Hubbell  v.  City  of  South 
Hutchinson,  64  Kan.  645,  68  Pac.  52; 
Oliver  v.  Board  of  Liquidation,  40 
La.  Ann.  321,  4  So.  166;  State  v. 
Board  of  Liquidation,  31  La.  Ann. 
273;  Varner  v.  Inhabitants  of  Noble- 
borough,  2  Me.  (2  Greenl.)  121; 
Ferguson  v.  City  of  St.  Louis,  6  Mo. 
499;  Wilson  v.  Knox  County  (Mo.) 
28  S.  W.  896;  Shipley  v.  Hacheney, 
84  Or.  303,  55  Pac.  971;  Freeman  v. 
City  of  Huron,  10  S.  D.  368,  73  N. 
W.  260.  "The  next  contention  of  ap- 
pellants we  shall  notice  is  that  the 
court  erred  in  allowing  interest  on 
these  warrants  from  the  date  of 
their  presentation  and  registration. 
In  this  we  think  the  court  ruled  cor- 
rectly. The  warrants  were  payable 
upon  presentation  for  payment;  and 
payment  being  refused  for  want  of 
funds,  the  holder  was  thereafter  en- 
titled to  interest  under  the  provi- 


sion of  sections  3721,  4746  Comp. 
Laws,  until  the  treasurer  set  apart 
funds  to  pay  them,  as  provided  by 
section  1674,  Comp.  Laws.  This  and 
the  preceding  section  clearly  assume 
that  such  warrants  bear  interest 
after  presentation  and  registration." 
San  Patricio  County  v.  McClane, 
58  Tex.  243;  Bardsley  v.  Sternberg, 

18  Wash.   612;    State   v.   Young,    22 
Wash.   547. 

667  Morgan  v.  District  of  Columbia, 

19  Ct.  Cl.  156;  Shirk  v.  Pulaski  Coun- 
ty, 4  Dill.  209,  Fed.  Cas.  No.  12,794; 
Dorsey  County  v.  Whitehead,  47  Ark. 
205;  Foster  v.  Coleman,  10  Cal.  278; 
Clark  v.  City  of  Des  Moines,  19  Iowa, 
199;   Leavenworth  County  Com'rs  v. 
Keller,  6  Kan.  510;  Bauer  v.  Frank- 
lin  County,   51   Mo.   205;    Cleveland 
County    Com'rs    v.    Seawell,    3    Okl. 
281;  Municipal  Security  Co.  v.  Baker 
County,  33  Or.  338,  54  Pac.  174;   Ar- 
nott   v.    City   of   Spokane,   6   Wash. 
442;  Million  v.  Soule,  15  Wash.  261. 

ees  Foster  v.  Coleman,  10  Cal.  278; 
People  v.  State  Treasurer,  40  Mich. 
320;  Chandler  v.  City  of  Bay  St. 
Louis,  57  Miss.  326;  Erskine  v.  Steele 
County,  4  N.  D.  339,  60  N.  W.  1050, 
28  L.  R.  A.  645;  Arnott  v.  City  of 
Spokane,  6  Wash.  442,  33  Pac.  1063. 


§  239 


WARRANTS,  ETC. 


543 


§  239.    Manner  of  payment. 

In  the  absence  of  restrictive  legislation,  a  public  corporation 
or  the  state  may  issue  its  warrants  payable  in  gold  coin  of  the 
United  States  or  other  legal  tender.  It  may  also  make  its  war- 
rants as  well  as  other  due  bills  or  orders  receivable  by  the  public 
corporation  issuing  them  in  payment  of  debts  due  such  corpora- 
tion.669 Pursuant,  therefore,  to  such  provisions,  the  holder  of 
warrants  may  insist  upon  their  payment  in  the  manner  and  mode 
prescribed  or  may  compel  an  acceptance,  in  accordance  with 
their  terms  by  the  public  officials,  in  payment  of  taxes670  or  other 
obligations  due  from  him  to  the  corporation.  Usually,  a  public 
corporation  where  warrants  are  at  a  discount,  does  not  possess 
the  power  to  issue  them  at  such  a  rate  as  to  make  them  a  cash 
equivalent.671 


sea  white  v.  State  (Ark.)  11  S.  W. 
765;  State  v.  Miller,  145  Ind.  598,  44 
N.  E.  309;  Kentucky  Chair  Co.  v. 
Com.,  20  Ky.  L.  R.  1279,  49  S.  W. 
197.  State  treasury  warrants  not 
available  for  the  payment  of  a  debt 
due  the  state.  Long  v.  McDowell, 
21  Ky.  L.  R.  605,  52  S.  W.  812;  Al- 
berts v.  Torrent,  98  Mich.  512.  A 
mayor  ha§  no  authority  to  deduct 
from  a  valid  warrant  due  an  individ- 
ual a  sum  illegally  received  by  him 
from  the  city.  Raton  Waterworks 
v.  Town  of  Raton,  9  N.  M.  70,  49  Pac. 
898;  Lee  v.  Roberts,  3  Okl.  106. 

6To  state  v.  Rives,  12  Ark.  721;  Hill 
v.  Logan  County,  57  Ark.  400,  21 
S.  W.  1063;  McKibben  "v.  State,  31 
Ark.  46;  Lindsey  v.  Rottaken,  32 
Ark.  619,  to  the  contrary,  Loftin  v. 
Watson,  32  Ark.  414. 

Fry  v.  Reynolds,  33  Ark.  450;  How- 
ell  v.  Hogins,  37  Ark.  110;  Thorpe 
v.  Cochran,  7  Kan.  App.  726,  52  Pac. 
107;  State  v.  Payne,  151  Mo.  663,  52 
S.  W.  412;  Sheridan  v.  City  of  Rah- 
way,  44  N.  J.  Law,  587;  Western 
Town-Lot  Co.  v.  Lane,  7  S.  D.  1,  62 
N.  W.  982.  "A  city  undoubtedly 
may,  for  its  own  convenience,  make 
an  estimate  of  the  money  it  may  re- 


quire for  each  particular  city  pur- 
pose; but  when  it  makes  its  levy, 
all  those  various  sums  must  be  ag- 
gregated, and  the  levy  made  for  the 
total  amount  required  for  general 
municipal  purposes.  Of  course,  if 
the  city  makes  any  levy  for  bonded 
indebtedness,  for  interest,  for  the 
payment  of  any  judgments  or  for 
any  other  special  purpose  authorized 
by  law,  the  levy  may  be  special  as 
to  those  purposes.  Its  general  mu- 
nicipal expenses  cannot,  however,  be 
divided  and  subdivided  and  appro- 
priations made  for  specific  purposes 
in  advance,  so  as  to  cut  off  the  rights 
of  holders  of  warrants  on  its  general 
fund,  as  was  attempted  to  be  done  in 
the  case  at  bar.  Such  a  system,  if 
permitted,  would  in  a  great  meas- 
ure, repeal  the  laws  of  the  state. 
*  *  *  Holders  of  valid  city  war- 
rants have  vested  rights  that  can- 
not be  ignored.  Payment  of  such 
warrants  in  the  manner  provided  by 
the  law  cannot  be  suspended  at  the 
mere  will  and  pleasure  of  the  city 
council." 

Town  of  Marinette  v.  Oconto  Coun- 
ty Sup'rs,  47  Wis.  216. 

«7i  Clayton  v.  McWilliams,  49  Miss. 


544 


POWERS. 


§  240 


§  240.    Time  of  payment. 

Warrants  where  not  otherwise  provided  are  usually  payable  on 
demand.672  Payment  may  also  be  due  at  a  date  specified,673  in  the 
order  of  their  registration  with  designated  public  officers,674  or  in 


311;    Bauer  v.  Franklin  County,  51 
Mo.  205.    See  preceding  section. 

672  Shelley  v.  St.  Charles  County 
Ct,  21  Fed.  699;  United  States  v. 
King,  74  Fed.  493;  United  States  v. 
Macon  County  Ct.,  75  Fed.  259;  Peo- 
ple v.  Austin,  11  Colo.  134,  17  Pac. 
485;  McDonald  v.  Bird,  18  Cal.  195; 
Shaw  v.  Statler,  74  Cal.  258;  Phil- 
lips v.  Reed,  109  Iowa,  188;  Thorpe 
v.  Cochran,  7  Kan.  App.  726,  52  Pac. 
107;  State  v.  Burke,  35  La.  Ann.  457. 
Warrants  issued  in  favor  of  the 
Louisiana  University  take  precedence 
of  all  others  drawn  on  the  general 
fund  except  those  in  favor  of  offi- 
cers whose  salaries  are  fixed  by  the 
constitution;  this  case  also  holds 
that  warrants  issued  by  the  Louisi- 
ana board  of  health  are  not  en- 
titled to  preference  of  payment 
out  of  the  general  fund,  and  Klein 
v.  Pipes,  43  La.  Ann.  362,  holds 
that  warrants  issued  for  the  sup- 
port of  the  University  for  the  Edu- 
cation of  Negroes  should  not  in 
payment  take  precedence.  State  v. 
Johnson,  162  Mo.  621,  63  S.  W.  390; 
Morrow  v.  Surber,  97  Mo.  155;  An- 
drew County  v.  Schell,  135  Mo.  31; 
State  v.  Hortsman,  149  Mo.  290; 
State  v.  Allison,  155  Mo.  325;  Gree- 
ley  v.  Cascade  County,  22  Mont.  580, 
57  Pac.  274;  Esser  v.  Spaulding,  17 
Nev.  289;  Raton  Waterworks  Co.  v. 
Town  of  Raton,  9  N.  M.  70;  Shan- 
non v.  City  of  Huron,  9  S.  D.  356; 
Freeman  v.  City  of  Huron,  10  S.  D. 
368,  73  N.  W.  260;  La  France  Fire- 
Engine  Co.  v.  Davis,  9  Wash.  600; 
Lorence  v.  Bean,  18  Wash.  36.  A 
warrant  issued  in  payment  of  a 


judgment  should  not  be  postponed 
in  favor  of  other  claims  or  necessary 
expenses.  Bardsley  v.  Sternberg,  18 
Wash.  612. 

6T3  Frankford  Real-Estate,  Trust  & 
Safe-Deposit  Co.  v.  Jackson  County 
(C.  C.  A.)  98  Fed.  942;  Miller  Coun- 
ty v.  Gazola,  65  Ark.  353,  46  S.  W. 
423;  Markey  v.  School  Dist.  No.  18, 
58  Neb.  479,  78  N.  W.  932.  "The 
contract  and  order  in  question  each 
required  the  amount  therein  speci- 
fied to  be  paid  at  a  date  which  had 
not  then  arrived.  School  district 
officers  can  contract  for  the  furnish- 
ing of  school  houses  only  with  refer- 
ence to  money  on  hand  and  at  the 
time  available  for  that  purpose. 
The  officers  of  the  school  district 
possessed  no  authority  to  make  a 
contract  or  give  a  district  order  pay- 
able at  a  future  time.  This  prin- 
ciple has  been  frequently  stated  and 
applied  by  this  court."  Citing 
School  Dist.  No.  2  v.  Stough.  4  Neb. 
360;  State  v.  Sabin,  39  Neb.  570; 
A.  H.  Andrews  &  Co.  v.  School  Dist. 
of  McCook,  49  Neb.  420. 

674  Taylor  v.  Brooks,  5  Cal.  332; 
McCall  v.  Harris,  6  Cal.  281;  La 
Forge  v.  Magee,  6  Cal.  285;  First 
Nat.  Bank  of  Northampton  v.  Ar- 
thur, 10  Colo.  App.  283,  50  Pac.  738; 
Shepherd  v.  Helmers,  23  Kan.  504; 
First  Nat.  Bank  of  Garden  City  v. 
Morton  County  Com'rs,  7  Kan.  App. 
739,  52  Pac.  580;  Monroe  v.  Craw- 
ford, 9  Kan.  App.  749,  58  Pac.  232; 
State  v.  Allison,  155  Mo.  325;  O'Don- 
nell  v.  City  of  Philadelphia,  2 
Brewst.  (Pa.)  481. 

State   v.    Campbell,    7    S.    D.    568, 


240 


WARRANTS,  ETC. 


545 


the  order  of  their  issuance  by  number  or  date.675  The  weight 
of  authority  is  to  the  effect  that  after  issue  they  become  a 
prima  facie  evidence  of  indebtedness  which  cannot  be  affected 
by  subsequent  legislation  either  as  to  the  time,  the  mode  or  man- 
ner of  payment.676  Where  the  law  contains  provisions  for  their 
registration  or  record  by  certain  officials,  a  failure  to  properly 
record  or  register  them  does  not  invalidate  the  warrants;  their 
validity  cannot  be  destroyed  by  such  failure  or  neglect.  If 
a  certain  provision  is  made  or  a  certain  fund  is  raised  for  the 
payment  of  specific  indebtedness  represented  by  them,  it  is 
asually  not  necessary  that  the  fund  or  provision  should  be  avail- 
able as  an  entirety  before  payment  can  be  commenced.  A  dis- 
tribution or  payment  should  be  made  immediately  upon  any  of 
the  funds  becoming  available  for  such  purpose  provided  pay- 
ment can  be  properly  demanded  at  such  time.677  This  rule  is  ap- 
plied to  avoid  the  payment  of  interest  upon  warrants  demanded 
and  payment  of-  which  is  refused,  although  there  may  be  funds 
to  pay  on  account. 


64  N.  W.  1125.  In  this  case  the 
court  prepared  the  following  sylla- 
bus: "Every  lawfully  issued  and 
valid  municipal  warrant  should  be 
paid  in  the  order  of  its  registra- 
tion for  payment,  although  the  same 
was  issued  in  payment  of  an  indebt- 
edness of  a  prior  year." 

Shannon  v.  City  of  Huron,  9  S.  D. 
356,  69  N.  W.  598;  Freeman  v.  City 
of  Huron,  10  S.  D.  368,  73  N.  W.  260; 
Stewart  v.  Custer  County,  14  S.  D. 
155,  84  N.  W.  764. 

675McCall  v.  Harris,  6  Cal.  281; 
Mitchell  v.  Speer,  39  Ga.  56;  La 
France  Fire  Engine  Co.  v.  Davis,  9 
Wash.  600;  Munson  v.  Mudgett,  15 
Wash.  321;  Bardsley  v.  Sternberg, 
18  Wash.  612;  Potter  v.  City  of  New 
Whatcom,  20  Wash.  589;  Eidemiller 
v.  City  of  Tacoma,  14  Wash.  376,  44 
Pac.  877;  Hull  v.  Ames,  26  Wash. 
272,  66  Pac.  391. 

«"6  United  States  v.  Macon  County 
Ct.,  45  Fed.  400;  Read  v.  Mississippi 

Abb.  Corp — 35. 


County,  69  Ark.  365,  63  S.  W.  807; 
State  v.  Barret,  25  Mont.  112,  63 
Pac.  1030;  Shipley  v.  Hacheney,  34 
Or.  303,  55  Pac.  971. 

67T  United  States  v.  Macon  County 
Ct.,  75  Fed.  259;  Deals  v.  Evans,  10 
Cal.  459;  Day  v.  Callow,  39  Cal. 
593.  A  judgment  authorizing  a 
county  treasurer  to  satisfy  warrants 
partially  paid  out  of  a  special  fund 
from  moneys  that  might  thereafter 
come  into  such  fund  is  to  this  ex- 
tent erroneous.  Jordan  v.  Hubert, 
54  Cal.  260;  First  Nat.  Bank  of 
Northampton  v.  Arthur,  10  Colo. 
App.  283,  50  Pac.  738;  State  v. 
Windle,  156  Ind.  648,  59  N.  E.  276; 
Klein  v.  Pipes,  43  La.  Ann.  362; 
Sheidley  v.  Lynch,  95  Mo.  487,  8 
S.  W.  434;  Haydon  v.  Ormsby  Coun- 
ty Sup'rs,  2  Nev.  371;  State  v. 
Grant,  31  Or.  370,  49  Pac.  855.  A 
partial  payment  of  a  warrant  can- 
not be  compelled. 


POWERS. 


§  241 


§  241.    To  whom  payable. 

Warrants  although  not  considered  negotiable  instruments  ac- 
cording to  the  common  rules  of  law  are  usually  assignable,  and 
when  properly  assigned  and  endorsed  they  become,  in  the  hands 
of  the  holder  subject  to  prior  equities,  an  enforceable  demand 
by  him  against  the  corporation.678  The  assignee  of  a  warrant 


«78  City  of  Nashville  v.  Ray,  86 
U.  S.  (19  Wall.)  468;  Ouachita  Coun- 
ty v.  Wolcott,  103  U.  S.  559;  Watson 
T.  City  of  Huron  (C.  C.  A.)  97  Fed. 
449;  Bayerque  v.  City  of  San  Fran- 
cisco, McAll.  175,  Fed.  Cas.  No. 
1,137;  Crawford  County  v.  Wilson,  7 
Ark.  214;  People  v.  El  Dorado  Coun- 
ty Sup'rs,  11  Cal.  170.  "County 
warrants  acquire  no  greater  validity 
in  the  hands  of  third  parties  than 
they  originally  poesessed  in  the 
hands  of  the  first  holder,  no  matter 
for  what  consideration  they  may 
have  been  transferred  or  in  what 
faith  they  may  have  been  taken.  If 
illegal  when  issued,  they  are  illegal 
for  all  time.  The  protection  which 
attends  the  purchaser  of  negotiable 
paper  before  maturity,  without  no- 
tice of  the  illegality  of  its  consid- 
eration, does  not  extend  to  like 
purchasers  of  county  warrants. 
Were  this  otherwise,  it  is  easy  to 
see  that  the  county  would  be  en- 
tirely at  the  mercy  of  the  board." 

Tippecanoe  County  Com'rs  v.  Cox, 
6  Ind.  403;  Thayer  v.  City  of  Boston, 
36  Mass.  (19  Pick.)  511;  Hyde  v. 
Franklin  County,  27  Vt.  185;  Aver- 
ett's  Adm'r  v.  Booker,  15  Grat.  (Va.) 
163;  People  v.  Hall,  8  Colo.  485; 
Cook  County  v.  Lowe,  23  111.  App. 
649.  County  warrants  drawn  con- 
trary to  Starr  ft  C.  Ann.  St.  111.  p. 
2460,  held  void. 

Garvin  v.  Wiswell,  83  111.  215; 
Clark  v.  Polk  County,  19  Iowa,  248. 
"On  the  contrary  if  such  warrants 


are  held  non-negotiable,  it  is  com- 
pletely in  the  power  of  all  persons 
to  protect  themselves  from  loss, 
since  the  law  and  the  public  records 
necessarily  afford  to  every  person 
the  means  of  ascertaining  the  facts 
as  to  the  legality  and  validity  of  ev- 
ery warrant  issued,  so,  that,  by 
such  non-negotiability,  both  the 
counties  and  individuals  are  abund- 
antly and  fully  protected.  There  is 
no  validity  or  force  in  the  assump- 
tion that  by  such  ruling  the  credit 
of  the  counties  would  be  impaired 
and  their  necessary  municipal  op- 
erations be  impeded.  No  honest  per- 
son would  refuse  to  labor  or  furnish 
material  to  a  county  because  he 
could  only  receive  a  fair  and  just 
compensation,  nor  because  by  Judi- 
cial construction,  it  was  furnished 
with  a  coat  of  mail  guarding  it 
against  the  assaults  and  machina- 
tions of  the  dishonest.  A  warrant 
properly  issued,  if  not  as  readily 
sold,  would  yield  more  value  to  the 
seller  when  sold.  In  view  of  this 
concurrence  of  principle,  authority 
and  public  policy  We  have  no  hesi- 
tation in  holding  that  county  war- 
rants are  not  negotiable  at  the  law 
merchant.  They  are,  of  course,  as- 
signable under  our  statute,  and  suit 
may  be  brought  thereon  in  the  name 
of  the  assignee,  but  subject  to  any 
defense  which  might  be  made  as 
against  the  payee." 

McCormick  v.  Grundy  County,  24 
Iowa,  382;  Crawford  v.  Noble  Coun- 


§  241 


WARRANTS,  ETC. 


547 


may  demand  payment  and  sue  upon  refusal  to  pay.070  The  man- 
ner in  which  the  transfer  must  be  made  to  give  the  transferee  the 
privileges  and  rights  of  his  transferor  may  depend  largely  upon 
statutory  provisions  prescribing  the  manner  in  which  this  shall 
be  done  ;680  otherwise,  if  the  transfer  is  made  in  the  customary 
manner  for  the  sale  and  assignment  of  paper  or  articles  of  like 
character,  it  will  be  sufficient.881  Public  officials  cannot  draw 
warrants  for  the  payment  of  their  salaries  or  personal  claims 
which  they  may  have  against  the  corporation.682  In  an  action 
brought  by  the  holder  of  a  warrant  whether  the  original  payee, 
his  assignee  or  bearer,  its  presentation  and  possession  by  plain- 
tiff at  the  time  of  trial  is  prima  facie  evidence  of  his  ownership 
though  it  is  denied  in  the  pleadings.683 


ty  Com'rs,  8  Okl.  450;  Heffleman  v. 
Pennington  County,  3  S.  D.  162; 
Gibson  County  v.  Rain  79  Tenn. 
(11  Lea)  20;  Leach  v.  Wilson  Coun- 
ty, 62  Tex.  331;  Brown  v.  School 
Directors  of  Jacobs,  77  Wis.  27. 

Some  cases,  however,  hold  to  the 
contrary.  See  Savage  v.  Mathews, 
98  Ala.  535;  Dana  v.  City  &  County 
of  San  Francisco,  19  Cal.  486;  and 
East  Union  Tp.  v.  Ryan,  86  Pa. 
459. 

6^9  Laughlin  v.  District  of  Colum- 
bia, 116  U.  S.  485;  Beals  v.  Evans, 
10  Cal.  459;  Marshall  v.  Platte  Coun- 
ty, 12  Mo.  88;  State  v.  Barret,  25 
Mont.  112,  63  Pac.  1030.  An  as- 
signee of  state  warrants  succeeds  to 
all  the  rights  of  his  assignor,  includ- 
ing that  of  demanding  and  receiving 
interest.  State  v.  Van  Wyck,  20 
Wash.  39,  54  Pac.  768;  Webster  v. 
Douglas  County,  102  Wis.  181,  77 
N.  W.  885,  78  N.  W.  451.  See,  also, 
authorities  cited  in  preceding  note. 

aso  Savage  v.  Mathews,  98  Ala. 
535;  Martin  v.  City  &  County  of 
San  Francisco,  16  Cal.  285;  People 
v.  Gray,  23  Cal.  125. 

68i  Watson  v.  City  of  Huron  (C. 
C.  A.)  97  Fed.  449;  Crawford  County 


v.  Wilson,  i  ATK.  215;  Sweet  v.  Carv- 
er County  Com'rs,  16  Minn.  106  (Gil. 
96) ;  Crawford  v.  Noble  County 
Com'rs,  8  Okl.  450. 

ssz  Cricket  v.  State,  18  Ohio  St.  9. 

ass  Heffleman  v.  Pennington  Coun- 
ty, 3  S.  D.  162.  "Appellant's  remain- 
ing point  is  that,  having  in  his  an- 
swer denied  the  alleged  transfer  to 
an  ownership  by  the  respondent,  the 
mere  possession  of  and  presentation 
by  respondent  at  the  trial  was  not 
sufficient  evidence  of  the  assignment 
and  ownership.  There  being  no 
other  evidence  as  to  ownership, 
there  is  here  no  question  of  pre- 
ponderance, but  simply,  did  posses- 
sion of  and  dominion  over  these 
warrants  tend  to  prove  title?  As 
possession  is  usually  an  incident  of 
ownership,  unexplained  possession 
is  always  some  evidence  of  owner- 
ship. It  may  be  very  slight,  and 
easily  overcome  but  actual  posses- 
sion is  a  fact,  and,  in  the  absence 
of  other  facts,  it  will  be  presumed 
to  be  rightful.  These  warrants 
were  in  form  payable  to  bearer. 
They  were  in  the  possession  of  and 
presented  by  respondent  and  were 
received  from  him  without  objec- 


548 


POWERS. 


§   242 


§  242.    Miscellaneous  forms  of  indebtedness. 

A  public  corporation  may,  under  authority  of  law,  issue,  as 
an  evidence  of  an  indebtedness  legally  incurred,  orders,684  nego- 
tiable certificates,686  school  orders,686  or  other  acknowledgments 
of  a  similar  character.687  These  miscellaneous  forms  of  indebted- 
ness when  issued  without  authority  are  invalid  ;688  but  if  the  cor- 
poration had  the  power  to  make  the  contract  creating  the  in- 
debtedness, the  payee  may  then  maintain  an  action  for  money 
or  things  had  and  received  or  services  rendered.689 


tion.  In  the  absence  of  any  evi- 
dence whatever  tending  to  question 
respondent's  ownership,  or  tending 
to  show  tha't  his  absolute  posses- 
sion ought  not  to  support  the  usual 
presumption  we  think  his  owner- 
ship was  sufficiently  maintained  un- 
til attacked  by  some  evidence." 

68*  McCutchen  v.  Town  of  Free- 
dom, 15  Minn.  217  (Gil.  169);  State 
v.  Corzilius,  35  Ohio  St.  69;  Stoll 
v.  Johnson  County  Com'rs,  6  Wyo. 
231. 

ess  Brown  v.  Town  of  Canton,  4 
Lans.  (N.  Y.)  409. 

ese  Whitney  v.  Inhabitants  of 
Stow,  111  Mass.  368;  Edinburg 
American  Land  &  Mortg.  Co.  v.  City 
of  Mitchell,  1  S.  D.  593. 

ear  Bloomfield  v.  Charter  Oak 
Bank,  121  TL  S.  121;  Parsel  v. 
Barnes,  25  Ark.  261;  In  re  Certifi- 
cates of  Indebtedness,  18  Colo.  566; 
Foote  v.  City  of  Salem,  96  Mass. 
(14  Allen)  87;  Richardson  v.  City 
of  Brooklyn,  31  Barb.  (N.  Y.)  152. 

ess  Bloomfield  v.  Charter  Oak 
Bank,  121  U.  S.  121;  Scott's  Ex'rs 
v.  City  of  Shreveport,  20  Fed.  714; 
Bangor  Sav.  Bank  v.  City  of  Still- 
water,  46  Fed.  899.  In  the  absence 
of  special  statutory  authority,  a 
city  has  no  right  to  issue  certificates 
of  indebtedness  in  negotiable  form, 
even  in  payment  for  property  which 
it  has  authority  to  buy. 


City  of  Lockport  v.  Gaylord,  61 
111.  276;  Sullivan  v.  Highway 
Com'rs,  114  111.  262.  Highway 
commissioners  have  no  power  to 
issue,  under  the  statute,  interest- 
bearing  orders.  Citizens'  Bank  v. 
Police  Jury  of  Parish  of  Concordia, 
28  La.  Ann.  263;  Smith  v.  Madison 
Parish,  30  La.  Ann.  461;  Parsons  v. 
Inhabitants  of  Monmouth,  70  Me. 
262;  Abbott  v.  Inhabitants  of  North 
Andover,  145  Mass.  484;  Smallwood 
v.  Lafayette  County,  75  Mo.  450; 
Town  of  Hackettstown  v.  Swack- 
hamer,  37  N.  J.  Law,  191;  Chosen 
Freeholders  of  Hudson  County  v. 
Buck,  51  N.  J.  Law,  155;  Smith  v. 
Epping,  69  N.  H.  558;  Stewart  v. 
Otoe  County,  2  Neb.  177;  Parker  v. 
Saratoga  County  Sup'rs,  106  N.  Y. 
392;  Loan  &  Exch.  Bank  v.  Shealey, 
62  S.  C.  337;  Biddle  v.  City  of  Ter- 
rell, 82  Tex.  335;  Exchange  Bank  of 
Virginia  v.  Lewis  County,  28  W. 
Va.  273. 

689  In  Hitchcock  v.  City  of  Gal- 
veston,  96  U.  S.  341,  350,  Justice 
Strong  said:  "It  is  enough  for  them 
(the  plaintiffs)  that  the  city  coun- 
cil have  power  to  enter  into  a  con- 
tract for  the  improvement  of  the 
sidewalks;  that  such  a  contract  was 
made  with  them;  that  under  it  they 
have  proceeded  to  furnish  materials 
and  do  work  as  well  as  to  assume 
liabilities;  that  the  city  has  re- 


§  242 


WARRANTS,  ETC 


549 


Municipal  evidences  of  indebtedness  may  be  divided  into  two 
classes,  based  upon  legal  character  and  characteristics  as  affected 
by  or  depending  for  validity,  in  the  hands  of  the  original  payee 
or  a  bona  fide  holder  for  value,  on  the  availability,  as  a  defense 
in  an  action  upon  the  indebtedness,  of  equities  existing  between 
the  payee  and  the  public  corporation.  These  two  classes  as  sug- 
gested are,  first,  negotiable  bonds  or  securities,  and  second,  war- 
rants or  other  evidences  of  a  similar  character.  In  the  case  of 
negotiable  bonds  and  securities,  the  rule  of  law  is  clearly  estab- 
lished that  in  the  hands  of  a  bona  fide  purchaser  for  value, 
equities  between  original  parties  are  not  available  as  a  defense. 
Warrants,  as  stated  in  a  preceding  section,690  and  all  other  evi- 
dences of  a  similar  character  are  merely  prima  facie  evidences 
of  indebtedness  and  at  no  time  can  the  maker  of  them  be  pre- 
vented from  setting  up  as  a  defense  equities  that  may  have  orig- 
inally existed.691  The  miscellaneous  forms  of  indebtedness  con- 
sidered in  this  section  are  subject  to  the  rules  of  law,  in  regard  to 
their  issue,  their  form  and  their  payment,  applying  to  warrants 
and  discussed  in  preceding  sections.692  As  a  matter  of  conveni- 


ceived  and  now  enjoys  the  benefit 
of  what  they  have  done  and  fur- 
nished; that  for  these  things  the 
city  promised  to  pay;  and  that  after 
having  received  the  benefit  of  the 
contract  the  city  has  broken  it.  It 
matters  not  that  the  promise  was 
to  pay  in  a  manner  not  authorized 
by  law.  If  payments  cannot  be 
made  in  bonds  because  their  issue 
is  ultra  vires,  it  would  be  sanction- 
ing rank  injustice  to  hold  that  pay- 
ment need  not  be  made  at  all." 

Bangor  Sav.  Bank  v.  City  of  Still- 
water,  49  Fed.  721;  Morgan  v.  Town 
of  Guttenberg,  40  N.  J.  Law,  394. 

esc  See  §  230,  supra. 

691  Newell  v.  School  Directors,  68 
111.  514  (School  order);  Hall  v. 
Jackson  County,  95  111.  352;  Farm- 
ers' Bank  of  Frankfort  v.  Orr,  25 
Ind.  App.  71,  55  N.  E.  35;  Wood  v. 
State,  155  Ind.  1;  Sheffield  School 
Tp.  v.  Andress,  56  Ind.  157  (School 


district  promissory  note);  Abascalv. 
City  of  New  Orleans,  48  La.  Ann. 
565  (Floating  debt  certificate) ;  Em- 
ery v.  Inhabitants  of  Mariaville,  56 
Me.  315  (Town  orders) ;  School  Dist. 
No.  2  v.  Stough,  4  Neb.  359  (School 
district  orders) ;  Rensselaer  County 
Sup'rs  v.  Weed,  35  Barb.  (N.  Y.) 
136  (Draft  drawn  upon  county 
treasurer) ;  Loan  &  Exch.  Bank  v. 
Shealey,  62  S.  C.  337  (School  war- 
rant) ;  Texas  Transp.  Co.  v.  Boyd, 
67  Tex.  153;  Cheeney  v.  Inhabitants 
of  Brookfield,  60  Mo.  53.  Although 
a  warrant  if  signed  by  the  proper 
officers  prima  facie  imports  validity, 
its  issuance  may  be  shown  to  be 
ultra  vires.  Warrants  issued  to 
workmen  in  payment  of  wages  for 
engraving  illegal  scrip  are  void. 

692  People  v.  Munroe,  100  Gal. 
664.  A  writing  purporting  to  be 
a  sale  or  assignment  of  the  un- 
earned salary  of  a  public  school 


550 


POWERS. 


§  242 


ence  the  authorities  relating  to  special  forms  of  indebtedness  as 
distinguished  by  specific  names  are  collected  here. 

The  weight  of  authority  is  to  the  effect  that  the  power  to  issue 
an  evidence  of  indebtedness,  negotiable  in  its  character,  cannot 
be  implied  but  must  be  expressly  given  in  some  charter,  statu- 
tory or  constitutional  provision.  Under  this  ruling  the  making 
of  a  promissory  note  by  the  officials  of  a  public  corporation  has 
been  held  unauthorized  even  where  the  indebtedness  is  one  that 
the  public  corporation  could  legally  incur.693  It  is  considered 


teacher  is  the  subject  of  forgery. 
Clark  County  Sup'rs  v.  Lawrence, 
63  111.  32;  Kelley  v.  City  of  Brook- 
lyn, 4  Hill  (N.  Y.)  263;  Brown  v. 
Town  of  Jacobs,  77  Wis.  29;  Strong 
v.  District  of  Columbia,  4  Mackey 
(D.  C.)  242. 

«93  City  of  Nashville  v.  Ray,  86 
U.  S.  (19  Wall.)  468;  Merrill  v. 
Town  of  Monticello,  138  U.  S.  673; 
Chisholm  v.  City  of  Montgomery,  2 
Woods,  584,  Fed.  Gas.  No.  2,686; 
White  v.  City  of  Rahway,  11  Fed. 
853;  Bangor  Sav.  Bank  v.  City  of 
Stillwater,  49  Fed.  721.  Where  ne- 
gotiable certificates  of  indebtedness 
issued  by  a  city,  and  sued  upon  by 
the  payee  have  been  declared  invalid, 
the  payee  may  maintain  an  action 
for  money  had  and  received,  pro- 
vided the  city  had  power  to  make 
the  contract  out  of  which  the  in- 
debtedness arose. 

Ladd  v.  Town  of  Franklin,  37 
Conn.  53;  Bourdeaux  v.  Coquard, 
47  111.  App.  254;  Coquard  v.  Vil- 
lage of  Oquawka,  192  111.  355,  af- 
firming 91  111.  App.  648;  Craig 
School  Tp.  v.  Scott,  124  Ind.  72; 
Carter  v.  City  of  Dubuque,  35  Iowa, 
416.  A  contract  of  guaranty  is  not 
negotiable  and  the  power  of  a  city 
to  sell  negotiable  paper  held  by  it 
does  not  carry  with  it  as  an  inci- 
dent the  power  to  execute  a  guar- 
anty thereof. 


Capmartin  v.  Police  Jury,  23  La. 
Ann.  190;  Breaux  v.  Iberville  Par- 
ish, 23  La.  Ann.  232;  Flagg  v.  Par- 
ish of  St.  Charles,  27  La.  Ann.  319; 
State  v.  Fisher,  30  La.  Ann.  514; 
Newgass  v.  City  of  New  Orleans, 
42  La.  Ann.  163.  In  the  absence  of 
express  legislative  authority,  a  mu- 
nicipal corporation  has  no  power 
to  utter  unconstitutional  obligations 
to  pay  money. 

Parsons  v.  Inhabitants  of  Mon- 
mouth,  70  Me.  262;  Robbins  v. 
School  Dist.  No.  1,  10  Minn.  340 
(Gil.  268);  Atlantic  City  Water- 
works Co.  v.  Smith,  47  N.  J.  Law, 
473;  Halstead  v.  City  of  New  York, 
5  Barb.  (N.  Y.)  218;  Ketchum  v. 
City  of  Buffalo,  14  N.  Y.  (4  Kern.) 
356;  Clark  v.  Saratoga  County 
Sup'rs,  107  N.  Y.  553;  Vaughn  v. 
Forsyth  County  Com'rs,  117  N.  C. 
429;  Stewart  v.  Otoe  County,  2  Neb. 
177. 

In  West  v.  Town  of  Errol,  58  N. 
H.  233,  it  is  held  that  the  select- 
men may  without  vote  of  the  town 
negotiate  promissory  notes  upon 
which  the  town  will  be  liable  on  a 
showing  that  the  money  went  to  its 
use  or  that  the  transaction  was  rati- 
fied. In  City  of  Mineral  Wells  v. 
Darby  (Tex.  Civ.  App.)  51  S.  W. 
351,  it  is  held  that  a  municipality 
may  execute  its  note  in  payment  of 
a  legal  obligation. 


§   243  WARRANTS,  ETC.  551 

desirable  to  avoid  the  granting  of  a  power  to  public  corporations 
which  will  enable  them  to  issue  valid  securities  or  evidences  of 
indebtedness  not  subject  to  defense  or  an  investigation  of  equities 
which  may  exist  between  the  parties. 

§  243.    The  same  subject;  legal  character. 

The  Federal  government  has  the  exclusive  power  of  coining 
money  and  issuing  currency  or  certificates  constituting  a  legal 
tender  for  the  payment  of  debts.  Where  public  corporations 
have  issued  certificates  of  indebtedness,  promissory  notes  or  other 
instruments  either  in  the  similitude  of  bank  notes  or  other  usual 
forms  of  currency,  such  have  been  held  illegal  in  their  character 
and  the  corporation  held  without  power  or  authority  to  issue 

See  the  following  cases  in  the  Ind.  192;  State  v.  Babcock,  22  Neb. 
supreme  court  of  the  United  States  614;  Douglass  v.  Virginia  City,  5 
discussing  the  question  of  the  power  Nev.  147;  Town  of  Hackettstown  v. 
of  a  public  corporation  to  issue,  Swackhamer,  37  N.  J.  Law,  191; 
without  express  authority,  promis-  Knapp  v.  City  of  Hoboken,  39  N.  J. 
sory  notes  or  negotiable  paper:  Po-  Law,  394;  Ketchum  v.  City  of  Buf- 
lice  Jury  v.  Britton,  82  U.  S.  (15  falo,  14  N.  Y.  (4  Kern.)  356;  Bank 
Wall.)  566;  City  of  Nashville  v.  of  Chillicothe  v.  Town  of  Chilli- 
Ray,  86  U.  S.  (19  Wall.)  468;  City  cothe,  7  Ohio  (pt.  2)  31;  City  of 
of  Nashville  v.  Lindsey,  86  U.  S.  Williamsport  v.  Com.,  84  Pa.  487; 
(19  Wall.)  485;  Claiborne  County  City  of  Waxahachie  v.  Brown,  67 
v.  Brooks,  111  U.  S.  400;  Town  of  Tex.  519;  Mills  v.  Gleason,  11  Wis. 
Concord  v.  Robinson,  121  IL  S.  470;  Jones,  Ry.  Secur.  283;  Bur- 
165;  Kelley  v.  Town  of  Milan,  127  roughs,  Pub.  Secur.  p.  185. 
U.  S.  139;  Norton  v.  Town  of  Dy-  Dillon,  Mun.  Corp.  (4th  Ed.)  § 
ersburg,  127  U.  S.  160;  Young  v.  126,  "That  merely  as  incidental  to 
Clarendon  Tp.,  132  U.  S.  340;  Hill  the  discharge  of  its  ordinary  cor- 
v.  City  of  Memphis,  134  U.  S.  198;  porate  functions  no  municipal  or 
Merrill  v.  Town  of  Monticello,  138  public  corporation  has  the  right  to 
U.  S.  673;  Brenham  v.  German-Amer-  invest  any  instrument  it  may  issue 
ican  Bank,  144  U.  S.  173.  See,  also,  whatever  its  form  with  that  su- 
the  following  authorities:  Desmond  preme  and  dangerous  attribute  of 
v.  City  of  Jefferson,  19  Fed.  483;  commercial  paper  which  insulates 
Gause  v.  City  of  Clarksville,  5  Dill,  the  holder  for  value  from  defenses, 
165,  Fed.  Gas.  No.  5,276;  Law  v.  and  equities  which  attach  to  its  in- 
People,  87  111.  385;  Hewitt  v.  Board  ception.  This  point  ought  to  be 
of  Education  of  Normal  School  guarded  by  the  courts  with  the  ut- 
Dist,  94  111.  528;  Miller  v.  Dear-  most  vigilance  and  resolution." 
born  County  Com'rs,  66  Ind.  162;  Simonton,  Mun.  Bonds,  c.  II. 
City  of  Richmond  r.  McGirr,  78 


552 


POWERS. 


§  243 


them.694    Securities  of  any  form  intended  to  circulate  as  money 
are  held  invalid. 

Legality  based  upon  purpose  for  which  issued  follows  the  rule 
of  law  well  settled  and  constantly  referred  to.  If  any  such  mis- 
cellaneous forms  of  indebtedness  are  issued  as  evidence  of  an 
indebtedness  incurred  for  a  purpose  other  than  that  authorized 
by  law  since  they  are  subject  to  all  equities,  they  will  be  held  in- 
valid. Public  authorities  cannot,  by  the  use  of  an  authorized 


*&»*  Thomas  V.  City  of  Richmond, 
79  U.  S.  (12  Wall.)  349;  City  of 
Little  Rock  v.  Merchants'  Nat. 
Bank,  98  U.  S.  308,  5  Dill.  299,  Fed. 
Cas.  No.  9,455.  Here  bonds  had 
been  issued  having  the  form  and 
appearance  of  treasury  notes  which 
were  afterwards  redeemed  and  legal 
bonds  issued  in  their  place.  The 
city  failing  to  pay,  a  holder  brought 
suit.  The  city  resisted  on  the 
ground  that  the  original  bonds  is- 
sued in  the  form  of  currency  were 
illegal  and  their  surrender  was  not 
a  valuable  consideration  for  the 
bonds  given  in  lieu  thereof.  The 
court  said:  "It"  can  scarcely  be 
doubted  that  whoever  is  capable  of 
entering  into  an  ordinary  contract 
to  obtain  or  receive  the  means  with 
which  to  build  houses  or  wharves 
or  the  like,  may,  as  a  general  rule, 
bind  himself  by  an  admission  of  his 
obligation.  The  capacity  to  make 
contracts  is  at  the  basis  of  the  lia- 
bility. The  first  liability  of  the 
city  was  disputed  by  it.  It  had 
gone  beyond  its  power,  as  it  said, 
in  making  a  debt  in  the  form  of 
bank  notes.  If  it  had  not  denied 
its  power,  judgment  and  an  execu- 
tion might  have  gone  against  it,  and 
the  creditor  would  have  obtained  his 
money.  This  privilege  of  nonre- 
sistance  every  person  retains,  and 
continues  to  retain.  He  can  recon- 


sider at  any  time,  and  confess  and 
admit  what  the  moment  before  he 
denied."  In  1874,  the  City  of  Little 
Rock  did  reconsider.  It  said:  "We 
will  purge  the  transaction  of  il- 
legality. We  had  the  authority 
to  accept  from  you  in  satisfaction 
of  amounts  received  by  us  for  legiti- 
mate purposes  the  sums  in  question. 
We  did  so  receive  and  expend  for 
legitimate  purposes.  We  erred  in 
making  the  payment  to  you  in  an 
objectionable  form.  We  now  pay 
our  just  and  lawful  debt  by  can- 
celing the  bank  notes  issued  by  us, 
and  delivering  to  you  obligations  in 
the  form  of  bonds,  to  which  form 
there  is  no  legal  objection." 

Wesley  v.  Eells,  90  Fed.  151; 
Lindsey  v.  Rottaken,  32  Ark.  619. 
Where  the  city  has  illegally  issued 
"city  money,"  the  holder  thereof 
has  no  remedy.  Dively  v.  City  of 
Cedar  Falls,  21  Iowa,  565.  But  see 
the  same  case,  27  Iowa,  227;  Goth- 
ran  v.  City  of  Rome,  77  Ga.  582; 
Cheeney  v.  Inhabitants  of  Brook- 
field,  60  Mo.  53;  Allegheny  City  v. 
McClurkan,  14  Pa.  81;  State  v.  Car- 
dozo,  5  S.  C.  (5  Rich.)  297.  Cer- 
tificates of  indebtedness  issued  by 
a  state  treasurer  made  receivable  in 
payment  of  taxes  or  other  dues  to 
the  state,  not  held  bills  of  credit 
within  the  sense  of  that  term  as 
used  in  the  Constitution  of  the 


§   245  WARRANTS,  ETC.  553 

instrument,  create  an  indebtedness  for  an  illegal  purpose  which 
will  be  binding  upon  the  corporation.695 

§  244.    Form  and  phraseology. 

The  law  takes  into  consideration  at  all  times  the  bona  fides 
of  the  parties  and  the  relative  condition  and  circumstances  at- 
tending the  character  of  the  corporation  and  the  issuing  of  the 
particular  indebtedness.  Where  the  public  corporation  author- 
ized is  what  may  be  termed  a  public  quasi  corporation  and  where 
the  officers  of  such  corporation  are  not  presumed  to  have  the 
same  degree  or  extent  of  intelligence,  experience  and  learning  as 
that,  which  it  is  presumed  similar  officers  of  a  higher  grade  of 
corporation  may  have  acquired  or  possess,  the  law  will  consider 
such  circumstances  or  conditions  and  will  hold  an  instrument 
valid  issued  by  them  which  may  be  technically  defective  in  its 
form  but  which  substantially  complies  with  the  law  authorizing 
its  issue.  But  the  question  of  the  payment  aside  from  mere  form 
or  execution  of  such  instruments  depends  upon  the  principles 
considered  in  preceding  sections.  At  all  times,  questions  based 
upon  equities  existing  between  the  original  parties  can  be  raised 
and  payment  or  nonpayment  depend  upon  their  determination.698 

§  245.    Mode  and  time  of  payment. 

The  manner  of  payment,697  the  time,698  the  fund699  from  which 
payable,  and  the  rights  of  parties  holding  such  instruments 

United    States.     See,   also,   author!-  North    Bergen   v.    Eager,    41   N.    J. 

ties  cited,  §  233.  Law,  184. 

ess  Clark   v.   City  of  Des   Moines,  ear  Allen    v.    McCreary,    101    Ala. 

19    Iowa,    199,    87    Am.    Dec.    423;  514;    Armstrong  v.  Truitt,   53  Ark. 

Merkel   v.   Berks    County,    81%    Pa.  287;    Marshall  v.   City  of   San   An- 

505;   Isaacs  v.  City  of  Richmond,  90  tonio    (Tex.    Civ.    App.)    63    S.    W. 

Va.   30.  138. 

ese  Clark  y.  City   of  Des   Moines,  698  Owen  v.  Lincoln  Tp.,  41  Mich. 

19  Iowa,  199,  87  Am.  Dec.  423;  City  415.    Notes  issued  by  a  city  not  hav- 

of  New   Orleans  v.   Strauss,   25  La.  ing  been  presented  for  redemption 

Ann.   50;    Chandler  v.   City  of  Bay  within   the  time  prescribed   by  the 

St.    Louis,    57    Miss.    326;    Cheeney  act,  the  city  is  not  under  any  obli- 

v.  Inhabitants  of  Brookfield,  60  Mo.  gation  in  law  or  equity  to  redeem 

53;    Knapp  v.   City  of  Hoboken,  38  them. 

N.    J.     Law,     371;     Inhabitants    of  Brewer    v.    Otoe    County,    I    Neb. 


554 


POWERS. 


§   246 


whether  the  original  payee  or  his  assignee,700  all  depend  upon  the 
principles  sufficiently  discussed. 

VI.     THE  POWEB  TO  CONTRACT. 

§  246.    In  general. 

The  discussion  of  the  power  of  a  public  corporation  to  contract 
in  this  and  succeeding  sections  will  be  confined  to  certain  pecu- 
liarities and  rules  applying  to  and  controlling  the  making  of  con- 
tracts by  such  corporations.  The  general  principles  of  law  re- 
garding contracts,  their,  form,  execution  and  enforcement,  will 
not  be  considered  except  as  they  may  be  incidentally  treated. 


373.  In  Nebraska  it  has  been  held 
that  one  receiving  a  warrant  in 
which  no  time  of  payment  is  fixed 
takes  it  with  the  expectation,  if 
there  are  no  available  funds  in  the 
treasury,  of  waiting  until  the  money 
can  be  raised  in  the  ordinary  way. 

Miller  v.  City  of  Lynchburgh,  20 
Grat.  (Va.)  330;  Terry  v.  City  of 
Milwaukee,  15  Wis.  490.  An  order 
drawn  on  the  city  treasurer  direct- 
ing him  "to  pay,"  no  date  of  pay- 
ment being  mentioned,  imports  that 
the  order  was  payable  on  demancl. 

Packard  v.  Town  of  Bovina,  24 
Wis.  382.  A  town  is  not  liable,  on 
an  order  drawn  against  its  treas- 
urer, until  after  demand  and  re- 
fusal of  payment. 

«9»Meath  v.  Phillips  County,  108 
U.  S.  553;  Mobile  County  v.  Powers, 
103  Ala,  207;  Allen  v.  Watts,  88 
Ala.  497;  Mitchell  v.  Speer,  39  Ga. 
56;  Gamble  v.  Clark,  92  Ga.  695; 
Board  of  Education  v.  Foley,  88 
111.  App.  470  (School  district  war- 
rants) ;  Tobin  v.  Emmetsburg  Tp., 
52  Iowa,  81;  District  Tp.  of  Coon 
v.  Board  of  Directors  of  Providence, 
52  Iowa,  287;  Mills  County  Nat. 
Bank  v.  Mills  County,  67  Iowa,  697, 
25  N.  W.  884.  Suit  may  be  brought 
without  first  requesting  the  levy  of 


a  tax  to  replenish  the  particular 
fund  out  of  which  they  are  payable. 

Hopper  v.  Inhabitants  of  Union 
Tp.,  54  N.  J.  Law,  243,  24  Atl.  387. 
Certificates  of  indebtedness  for 
local  improvements.  Wyoming 
County  v.  Bardwell,  84  Pa.  104; 
Bank  of  Spring  City  v.  Rhea  Coun- 
ty (Tenn.)  59  S.  W.  442;  Terry  v. 
City  of  Milwaukee,  15  Wis.  490. 
School  orders  are  evidences  of  in- 
debtedness, upon  which,  if  payment 
is  refused  by  the  city  treasurer  for 
want  of  funds,  an  action  will  lie 
against  the  city. 

TOO  Terrell  v.  Town  of  Colebrook, 
35  Conn.  188.  The  assignee  of  an 
authorized  note  can  recover  from 
the  town.  Ladd  v.  Town  of  Frank- 
lin, 37  Conn.  53.  A  town  promissory 
note  held  void  in  the  hands  of  a 
purchaser  for  value  who  took  it 
after  the  fact  of  the  failure  of  the 
contract  had  been  established.  Peo- 
ple v.  Clark  County  Com'rs,  50  111. 
213;  National  State  Bank  v.  Inde- 
pendent Dist.  of  Marshall,  39  Iowa, 
490;  City  of  Springfield  v.  Weaver 
(Mo.)  37  S.  W.  509;  Flemming  v. 
City  of  Hoboken,  40  N.  J.  Law, 
270;  Eaton  v.  Manitowoc  County 
Sup'rs,  40  Wis.  668. 


§  246  POWER    TO    CONTRACT.  555 

A  public  corporation,  it  must  be  remembered,  is  first  an  arti- 
ficial person,  and  second  an  artificial  person  of  such  a  character 
that,  as  compared  with  others,  its  powers  are  still  further  re- 
stricted and  limited.  This  principle  arises  from  the  fact,  so  often 
repeated,  that  a  public  corporation  is  a  governmental  agent,  one 
organized  for  the  benefit  and  advantage  of  the  community  at 
large  without  special  reference  to  any  individual,  family  or  class. 
The  right  to  contract  is  one  of  the  powers  usually  conferred  upon 
public  corporations  through  charter,701  statutory,702  or  consti- 
tutional703 provisions  as  construed  and  denned  by  court  decisions. 
The  tendency  of  the  courts  is  to  confine  the  exercise  of  corporate 
powers  strictly  to  such  as  are  clearly  given,  and  following  this 
rule  the  power  to  contract,  of  a  particular  public  corporation  of 
whatever  class,  will  be  determined  not  by  the  application  of  gen- 
eral rules  or  principles  of  law  but  by  the  specific  right  given  to 
such  corporation  in  some  grant  of  legal  authority.  Public  cor- 
porations have  only  such  rights  and  powers  as  are  especially 
granted  them  or  absolutely  necessary  to  carry  into  effect  the 
rights  and  powers  so  granted.  This  rule  applies  with  its  full 
force  to  the  making  of  contracts,704  therefore,  we  find  many  cases 
where  the  legality  of  the  contract,  as  executed  by  a  public  eor- 

701  City  of  Memphis  v.  Brown,  87    Improvements  Act,  §  6,  fixing  time 
U.  S.  (20  Wall.)  289;  Ex  parte  City    for   commencement   and   completion 
of  Birmingham,  116  Ala.  186,  22  So.    of  street  improvement  work. 

454;   Hall  v.  Cockrell,  28  Ala.  507;  Nelson  v.  City  of  La  Porte,  33  Ind. 

Zottman   v.   City  &  County  of   San  258;    Stidger   v.   City   of   Red   Oak, 

Francisco,  20  Cal.  96;   Covington  &  64  Iowa,  465;    Swift  v.   Inhabitants 

M.  R.  Co.  v.  City  of  Athens,  85  Ga.  of  Falmouth,   167  Mass.   115;    Rum- 

367;    Goodrich    v.    City    of    Detroit,  sey  Mfg.  Co.  v.  Inhabitants  of  Schell, 

12  Mich.  279;   Rae  v.  City  of  Flint,  21  Mo.  App.  175;  City  of  Lexington 

51   Mich.    526;    Kelly   v.   Broadwell,  v.  Lafayette  County  Bank,  165  Mo. 

3   Neb.   Unoff.    617,    92   N.   W.    643;  671;    Chamberlain    v.    City    of    Ho- 

Kernitz    v.    Long    Island    City,    50  boken,  38  N.  J.  Law,  110;   Hubbard 

Hun    (N.    Y.)    428;    Francis  v.   City  v.   Norton,  28  Ohio   St.  116;    Black- 

of  Troy,  74  N.  Y.  338,  reversing  10  burn  v.  Oklahoma  City,  1  Okl.  292. 

Hun,    515;    City   of   Buffalo   v.    Bet-  The    contracts    of   a    de    facto    cor- 

tinger,  76  N.  Y.   393;    Noel  v.  City  poration  can  be  enforced.     Town  of 

of  San  Antonio,  11  Tex.  Civ.  App.  Levis  v.  Black  River  Imp.  Co.,  105 

580,  33  S.  W.  263.  Wis.  391,  81  N.  W.  669. 

702  Berry  v.  Mitchell,  42  Ark.  243;  -oa  state  v.  Hogan,  22   Mont.   384. 
Santa  Rosa  Lighting  Co.  v.   Wood-  The  approval  by  the  governor  and 
ward,  119  Cal.  30;   Ramish  v.  Hart-  treasurer  necessary  to  the  validity 
well,  126  Cal.  443.     Construing  Street  of   a   contract  under   Const,   art.   5, 


556 


POWERS. 


poration,  depends  upon  a  local  construction  of  some  legal  pro- 
vision under  which  the  right  to  contract  is  claimed.705  A  public 
corporation  may,  in  the  ordinary  course  of  the  exercise  of  its 
powers,  enter  into  contracts  pursuant  to  the  authority  suggested 
above,  and  necessary  to  the  proper  management  and  regulation 
of  its  finances  and  governmental  affairs.706  Assuming  the  ex- 


§  30,  and  Pol.  Code,  §  710.  Ellis  v. 
City  of  Cleburne  (Tex.  Civ.  App.) 
35  S.  W.  495. 

70*  City  of  Mobile  v.  Moog,  53  Ala. 
561;  City  of  Oakland  v.  Carpentier, 
13  Cal.  540;  City  of  New  London 
v.  Brainard,  22  Conn.  552;  Jackson 
Tp.  v.  Barnes,  55  Ind.  136;  City  of 
Leavenworth  v.  Rankin,  2  Kan.  357; 
Louisiana  State  Bank  v.  Orleans 
Nav.  Co.,  3  La.  Ann.  294.  The  right 
of  municipal  officers  to  enter  into  a 
contract  of  suretyship  denied  as 
not  being  derived  from  any  express 
authority  or  from  any  general  au- 
thority under  the  claim  of  necessity, 
convenience  or  public  interest. 

Patterson  v.  City  of  New  Orleans, 
20  La.  Ann.  103;  Roberts  v.  City  of 
Cambridge,  164  Mass.  176;  Mayo  v. 
Dover  &  P.  V.  Fire  Co.,  96  Me.  539; 
Ketchum  v.  City  of  Buffalo,  14  N. 
Y.  (4  Kern.)  356;  In  re  Board  of 
Water  Com'rs,  176  N.  Y.  239;  Faw- 
cett  v.  Town  of  Mt.  Airy,  134  N.  C. 
125,  45  S.  E.  1029;  City  of  Bren- 
ham  v.  Brenham  Water  Co.,  67  Tex. 
542. 

T05  Union  Coal  Co.  v.  City  of  La 
Salle,  34  111.  App.  93,  affirmed  in 
136  111.  119,  26  N.  E.  506,  12  L.  R. 
A.  326,  determining  the  right  of  a 
municipality  to  contract  for  the 
mining  of  coal  under  its  streets. 
Challiss  v.  Parker,  11  Kan.  394; 
Webb  City  &  C.  Waterworks  Co.  v. 
Webb  City,  78  Mo.  App.  422;  Wood- 
side  Water  Co.  v.  City  of  Long 
Island  City,  23  App.  Div.  78,  48  N. 


Y.  Supp.  686;  Erwin  v.  Town  of 
Richmond,  42  Vt.  557. 

foe  American  Stave  &  Cooperage 
Co.  v.  Butler  County,  93  Fed.  301; 
City  of  Memphis  v.  Brown,  11  Am. 
Law  Reg.  (N.  S.)  629;  McBean  v. 
City  of  Fresno,  112  Cal.  159,  31  L. 
R.  A.  794;  City  of  Rome  v.  Cabot, 
28  Ga.  50  (Contract  for  water- 
works) ;  City  of  McPherson  v. 
Nichols,  48  Kan.  430  (Care  of  sick); 
Bietry  v.  City  of  New  Orleans,  24 
La.  Ann.  21;  State  v.  Natal,  41  La. 
Ann.  887;  Conery  v.  New  Orleans 
Waterworks  Co.,  41  La.  Ann.  910. 
The  securing  of  a  water  supply  held 
a  legitimate  purpose  of  a  contract. 

Willard  v.  Inhabitants  of  New- 
buryport,  29  Mass.  (12  Pick.)  227; 
Hale  v.  Houghton,  8  Mich.  458;  St. 
Louis  Hospital  Ass'n  v.  City  of  St. 
Louis,  15  Mo.  592  (Care  of  insane) ; 
Robinson  v.  City  of  St.  Louis,  28 
Mo.  488;  State  v.  Fortinberry,  54 
Miss.  316;  City  of  Newark  v.  Bon- 
nel,  57  N.  J.  Law,  424,  31  Atl.  408; 
Tucker  v.  Virginia  City,  4  Nev.  20. 
Contract  for  care  of  indigent  sick 
at  private  hospital  held  good.  Utica 
Water-works  Co.  v.  City  of  Utica, 
31  Hun  (N.  Y.)  426.  Contract  with 
private  corporation  for  water  sup- 
ply held  void. 

Reynolds  v.  City  of  Albany,  8 
Barb.  (N.  Y.)  597.  The  power  to 
provide  furniture  for  a  public  build- 
ing includes  the  right  to  purchase 
a  portrait  of  the  governor  of  the 
state  as  an  ornament  for  the  wall. 


§  246 


POWER    TO    CONTRACT. 


557 


istence  of  a  legal  authority  for  the  making  of  a  contract  it  does 
not  necessarily  follow  that  in  all  cases  contracts  executed  are 
valid.  The  purpose  or  end  of  the  contract  may  be  one  in  further- 
ance of  an  act  which  the  corporation  is  prohibited  by  general 
principles  or  specific  restrictions  of  law  from  doing  as  not  com- 
ing within  the  scope  of  the  objects  or  the  purpose  for  which  it 
was  incorporated.707  Aid,  donations  or  assistance  rendered  pri- 


Harlem  Gas  Light  Co.  v.  City  of 
New  York,  33  N.  Y.  309.  Contracts 
for  the  lighting  of  public  buildings 
and  streets  held  valid.  Pullman  v. 
City  of  New  York,  54  Barb.  (N.  Y.) 
169;  Reynolds  v.  Stark  County 
Com'rs,  5  Ohio,  204;  City  of  Cincin- 
nati v.  Cameron,  33  Ohio  St.  336; 
Town  of  Royalton  v.  Royalton  &  W. 
Turnpike  Co.,  14  Vt.  311.  Contract 
for  constructing  roads.  Jackman  v. 
Town  of  New  Haven,  42  Vt.  591; 
Miller  v.  City  of  Milwaukee,  14  Wis. 
642.  Construction  of  a  breakwater. 

See,  also,  the  following  cases  with- 
holding the  power,  the  purpose  of 
the  contract  not  being  in  further- 
ance of  the  public  welfare  or  not 
coming  within  the  scope  of  powers 
expressly  granted  or  those  absolute- 
ly necessary  to  carry  such  into  ef- 
fect: Burrill  v.  City  of  Boston,  2 
Cliff.  590,  Fed.  Cas.  No.  2,198.  Se- 
curing volunteers  for  the  army.  The 
Maggie  P.,  25  Fed.  202.  Not  a  pub- 
lic duty  to  pump  out  and  raise 
boats  which  sink  at  public  levees. 
Hamilton  v.  City  of  Shelbyville,  6 
Ind.  App.  538;  City  of  Peru  v.  Glea- 
son,  91  Ind.  568.  Contract  for  main- 
tenance of  private  drain.  Penley 
v.  City  of  Auburn,  85  Me.  278,  21  L. 
R.  A.  657;  Gamble  v.  Village  of  Wat- 
kins,  7  Hun  (N.  Y.)  448.  The  pub- 
lic entertainment  of  a  party  of  news- 
paper representatives. 

Sillcocks  v.  City  of  New  York,  li 
Hun  (N.  Y.)  431.  A  city  is  not 
liable  for  gold  medals  furnished  each 


of  the  members  of  the  city  council,' 
the  court  holding  that  such  a  con- 
tract was  not  for  an  object  essen- 
tially necessary  to  corporate  exist- 
ence and  further  was  not  permitted 
by  nor  within  the  power  of  the  mu- 
nicipality to  make.  Waterbury  v. 
City  of  Laredo,  68  Tex.  565.  Ferry 
contract. 

The  same  rule  will  apply  to  all 
those  attempts  of  a  public  corpora- 
tion to  enter  into  contracts  which 
abridge  or  restrict  it  in  the  per- 
formance of  its  proper  duties  to- 
ward the  public  or  which  in  any 
way  control  or  embarrass  its  legis- 
lative powers  and  duties.  See  the 
following  cases:  Higgins  v.  City 
of  San  Diego,  118  Cal.  524;  City 
of  New  Haven  v.  New  Haven  &  D. 
R.  Co.,  62  Conn.  252,  18  L.  R.  A. 
256;  East  St.  Louis  Gas  Light  & 
Coke  Co.  v.  City  of  East  St.  Louis, 
47  111.  App.  411;  Long  v.  City  of 
Duluth,  49  Minn.  280;  Flynn  v.  Lit- 
tle Falls  Electric  &  Water  Co.,  74 
Minn.  180;  City  of  Jackson  v.  Bow- 
man, 39  Miss.  671;  Brick  Presby- 
terian Church  v.  City  of  New  York, 
5  Cow.  (N.  Y.)  538;  Britton  v.  City 
of  New  York,  21  How.  Pr.  (N.  Y.) 
251;  City  of  New  York  v.  Second 
Ave.  R.  Co.,  32  N.  Y.  261;  Colum- 
bus Gas  Light  &  Coke  Co.  v.  City  of 
Columbus,  50  Ohio  St.  65,  19  L. 
R.  A.  510;  City  of  Wellston  v.  Mor- 
gan, 59  Ohio  St.  147;  Waterbury  v. 
City  of  Laredo,  68  Tex.  565. 

TO-  Parsons      Y.      Inhabitants      of 


558  POWERS.  §  247 

vate  individuals  in  the  advancement  of  private  enterprises  or 
purposes  are  invariably  prohibited  by  law.  Public  means  or 
agencies  cannot  be  used  for  the  advancement  of  private  inter- 
ests.708 

§  247.    The  implied  power  to  contract. 

The  implied  power  to  contract  on  the  part  of  a  public  corpora- 
tion does  not  exist  except  so  far  as  may  be  necessary  to  carry 
into  effect  those  powers  and  rights  which  have  been  by  law  ex- 
pressly granted.  This  rule  precludes,  except  in  exceptional  cases, 
the  existence  of  an  implied  or  discretionary  power  to  contract.709 
The  law,  however,  presumes  that  the  authority  exists  to  contract 
in  the  manner  and  for  the  purpose  designated.710  The  principle 
that  there  cannot  exist  an  implied  power  to  make  a  contract  must 
be  distinguished,  however,  from  the  one  that  where  the  authority 
exists  in  the  absence  of  an  express  contract  when  the  public  cor- 
poration has  received  services  or  goods  of  value,  an  implied  con- 
tract will  be  held  to  exist,  sufficient  to  enable  the  party  rendering 
the  services  or  supplying  the  articles  to  recover  their  reasonable 
value.711  If  the  lack  of  authority  is  questionable  or  the  contract 

Goshen,   28    Mass.    (11    Pick.)    396;  ford  Elec.  Light  Co.,  65  Conn.  324; 

Stetson  v.  Kempton,  13  Mass.  272;  City  of  Alton  v.  Mulledy,  21  111.  76; 

Norton  v.    Mansfield,   16   Mass.   48;  Root   v.    City    of    Topeka,    63    Kan. 

Brick  Presbyterian   Church   v.   City  129,  65   Pac.  233;    Smith  v.  City  of 

of  New  York,  5  Cow.    (N.  Y.)    538.  Nashville,    72    Tenn.    (4    Lea)    69; 

See    authorities    cited    §    246,    note  Dolloff  v.   Inhabitants  of  Ayer,  162 

707,  supra.  Mass.  569;    New  Jersey  Car  Spring 

708  Sutherland-Innes     Co.     v.     Vil-  &  Rubber  Co.  v.  Jersey  City,  64  N. 
lage  of   Evart    (C.   C.   A.)    86  Fed.  J.    Law,    544;    City   of   Wellston    v. 
597;    Park  v.   Modern  Woodmen   of  Morgan,    65    Ohio    St.    219;    Spring- 
America,    181    111.    214.      See,    also,  field  Mill.  Co.  v.  Lane  County,  5  Or. 
§§   145    et  seq.;    172  et  seq;    412  et  265;    Carolina   Nat.   Bank  v.    State, 
seq.  60  S.   E.  465. 

709  Burrill    v.    City    of    Boston,    2  TIO  City  of  Newport  News  v.  Pot- 
Cliff.  590,  Fed.  Cas.  No.  2,198;   City  ter    (C.    C.   A.)    122   Fed.   321;    City 
of    Litchfield    v.    Ballou,    114    U.    S.  of  Chicago  v.  Peck,  196  111.  260. 
190;   Berlin  Iron  Bridge  Co.  v.  City  TH  Steele   County   v.   Erskine    (C. 
of   San   Antonio,    62   Fed.    882;    Gil-  C.  A.)    98  Fed.  215,  affirming 87 Fed. 
lette-Herzog    Mfg.     Co.     v.     Canyon  630;     City    of    Austin    v.    Bartholo- 
County,  85  Fed.  396;  Town  of  New-  mew,  107  Fed.  349;  Fernald  v.  Town 
port  v.    Batesville  &  B.   R.   Co.,    58  of  Oilman,   123   Fed.   797;    Garrison 
Ark.  270;   City  of  Hartford  v.  Hart-  v.  City  of  Chicago,  7  Biss.  480,  Fed. 


§  247 


POWER    TO    CONTRACT. 


559 


Gas.  No.  5,255;  Brush  Electric  Light 
&  Power  Co.  v.  City  Council  of 
Montgomery,  114  Ala.  433;  Capital 
Gas  Co.  v.  Young,  109  Cal.  140,  29 
L.  R.  A.  463;  Callaway  v.  City  of 
Milledgeville,  48  Ga.  309;  Seagraves 
v.  City  of  Alton,  13  111.  366;  Tubbs 
v.  City  of  Maquoketa,  32  Iowa,  564; 
Turner  v.  Cruzen,  70  Iowa,  202; 
Fouke  v.  Jackson  County,  84  Iowa, 
616;  Clinton  School  Tp.  v.  Lebanon 
Nat.  Bank,  18  Ind.  App.  42,  47  N.  E. 
347;  Clark  School  Tp.  v.  Grossius, 

20  Ind.    App.    322,    50    N.    E.    771; 
Condran  v.  City  of  New  Orleans,  43 
La.  Ann.  1202;  Parks  v.  Inhabitants 
of  Waltham,   120  Mass.   160;    Carey 
v.  City  of  East  Saginaw,  79  Mich.  73 ; 
Methodist    Episcopal   Church    South 
v.  City  of  Vicksburg,  50  Misc.  601; 
Bryson  v.  Johnson  County,  100  Mo. 
76;    State  v.  City  of  St.  Louis,  174 
Mo.   125,    61  L.    R.   A.   593;    Tucker 
v.  Virginia  City,  4  Nev.   20;   Rider 
v.  City  of  Portsmouth,  67  N.  H.  298; 
Little  v.  Union  Tp.,  40  N.   J.  Law, 
397;     Taylor    v.    City    of    Lamb'ert- 
ville,  43   N.  J.  Eq.  107;   Leonard  v. 
Long  Island  City,  65  Hun,   621,   20 
N.  Y.  Supp.  26;   Port  Jervis  Water 
Works   Co.  v.  Village  of   Port   Jer- 
vis, 71  Hun,  66,  24  N.  Y.  Supp.  497; 
People  v.   Grout,    79  App.   Div.    (N. 
Y.)   61;   Kramrath  v.  City  of  Albany, 
127  N.  Y.  575;    Memphis  Gas  Light 
Co.   v.    City  of  Memphis,   93   Tenn. 
612;  Thomson  v.  Town  of  Elton,  109 
Wis.   589.     See,  also,  cases  cited   in 
§  259. 

But  see  Argent!  v.  City  of  San 
Francisco,  16  Cal.  255;  Zottman  v. 
City  &  County  of  San  Francisco,  20 
Cal.  96;  City  of  Alton  v.  Mulledy, 

21  111.      76;      Huntington     County 
Com'rs  v.  Boyle,   9  Ind.   296;   Trus- 
tees   of  Belleview  v.   Hohn,  82   Ky. 
1;    Dolloff   v.    Inhabitants   of   Ayer, 
162  Mass.  569;  City  of  Baltimore  v. 


Poultney,  25  Md.  18;  French  v.  City 
of  Auburn,  62  Me.  452;  Boston  Elec. 
Co.  v.  City  of  Cambridge,  163  Mass. 
64;  City  of  Jeffersonville  v.  Steam 
Ferryboat  John  Shailcross,  35  Ind. 
19;  Tucker  v.  City  of  Grand  Rap- 
ids, 104  Mich.  621;  Crutchfield  v. 
City  of  Warrensburg,  30  Mo.  App. 
456;  Virginia  City  Gas  Co.  v.  Vir- 
ginia City,  3  Nev.  320. 

McDonald  v.  City  of  New  York, 
68  N.  Y.  23.  "It  is  plain  that  if 
the  restriction  put  upon  municipali- 
ties by  the  legislature  for  the  pur- 
poses of  reducing  and  limiting  the 
incurring  of  debt  and  the  expendi- 
ture of  the  public  money  may  be 
removed  upon  the  doctrine  now  con- 
tended for  (that  is,  that  the  defend- 
ant having  appropriated  the  ma- 
terials of  the  plaintiff  and  used 
them,  is  bound  to  deal  justly  and 
pay  him  the  value  of  them,)  there 
is  no  legislative  remedy  for  the 
evils  of  municipal  government  which 
of  late  have  excited  so  much  atten- 
tion and  painful  foreboding.  Re- 
strictions and  inhibition  by  statute 
are  practically  of  no  avail  if  they 
can  be  brought  to  naught  by  the  un- 
authorized action  of  every  official 
of  lowest  degree,  acquiesced  in  or 
not  repudiated  by  his  superiors. 
*  *  *  The  views  here  set  forth 
are  not  to  be  extended  beyond  the 
facts  of  the  case.  It  may  be  that 
where  a  municipality  has  come  into 
the  possession  of  the  money  or  the 
property  of  a  person  without  his 
voluntary  intentional  action  concur- 
ring therein,  the  law  will  fix  a  lia- 
bility and  imply  a  promise  to  repay 
or  return  it.  Thus  money  paid  by 
mistake,  money  collected  for  an 
illegal  tax  or  assessment,  property 
taken  and  used  by  an  official  as 
that  of  the  city  when  not  so — in 
such  cases  it  may  be  that  the  stat- 


560 


POWERS. 


§  2,9 


not  void  on  its  face,  the  right  will  be  presumed  and  the  public 
corporation  may  enter  into  a  contract  and  incur  a  liability  for  its 
breach.712 

§  248.    Ultra  vires  contracts. 

A  public  corporation  may  do  an  act  in  excess  of  or  beyond  its 
lawful  authority;  such  an  act  is  termed  ultra  vires.713  A  con- 
tract made  by  such  a  corporation  may  be  ultra  vires  and  there- 
fore incapable  of  enforcement  because  of  a  lack  of  authority,  an 
unlawful  result  or  purpose  or  because  in  violation  of  some  pro- 
vision of  paramount  law,  namely,  the  constitution  of  the  United 
States  or  of  a  particular  state  within  which  the  corporation  may 
be  located.  These  questions  will  be  considered  in  succeeding 
sections.71* 

§  249.    For  want  of  authority. 

A  public  corporation  is,  as  already  suggested,  an  artificial  per- 
son and  as  such  capable  of  doing  such  acts  and  exercising  such 
powers  only  as  may  be  conferred  upon  it  by  the  charter  of  its 


iite  will  not  act  as  an  inhibition. 
The  statute  may  not  be  carried  fur- 
ther than  its  intention,  certainly  not 
further  than  its  letter.  Its  pur- 
pose is  to  forbid  and  prevent  the 
making  of  contracts  by  unauthor- 
ized official  agents  for  supplies  for 
the  use  of  the  corporation.  This 
opinion  goes  no  further  than  to  hold 
that  where  a  person  makes  a  con- 
tract with  the  city  of  New  York 
for  supplies  to  it  without  the  re- 
quirements of  the  charter  being  ob- 
served, he  may  not  recover  the 
value  thereof  upon  an  implied  lia- 
bility." Keane  v.  City  of  New  York, 
88  App.  Div.  (N.  Y.)  542;  People  v. 
Phillips,  88  App.  Div.  (N.  Y.)  560; 
and  Salsbury  v.  City  of  Philadel- 
phia, 44  Pa.  303. 

712  The  Maggie  P.,  25  Fed.  202; 
Gillette-Herzog  Mfg.  Co.  v.  Canyon 
County,  85  Fed.  396;  Ogden  City  v. 


Weaver,  108  Fed.  564;  Brown  v. 
Board  of  Education  of  Pomona,  103 
Cal.  531;  City  of  Chicago  v.  Peck, 
196  111.  260;  Town  of  Gosport  v. 
Pritchard,  156  Ind.  704;  City  of 
Louisville  v.  Gosnell,  22  Ky.  L.  R. 
1524,  60  S.  W.  410;  61  S.  W.  470. 

Tis  City  of  Mobile  v.  Moog,  53 
Ala.  561.  The  invalidity  of  con- 
tracts because  ultra  vires  is  more 
strictly  maintained  in  favor  of  mu- 
nioipal  corporations  than  private 
corporations. 

71*  Brick  Presbyterian  Church 
Corp.  v.  City  of  New  York,  5  Cow. 
(N.  Y.)  538.  Municipal  corpora- 
tions have  no  power  to  make  con- 
tracts which  will  embarrass  or  con- 
trol their  legislative  powers  and  du- 
ties. City  of  New  York  v.  Second 
Ave.  R.  Co.,  32  N.  Y.  261.  See,  also, 
§  246. 


§   249  POWER    TO    CONTRACT.  561 

creation  or  as  are  necessarily  implied  to  carry  into  effect  pow- 
ers directly  granted.  The  legal  authority  to  execute  a  con- 
tract, therefore,  lies  at  the  basis  of  its  validity;  this  may  be 
found  in  charter,  statutory  or  constitutional  provisions  and  the 
absence  of  such  authority  acts  as  a  limitation  upon  the  right  of 
the  public  corporation  to  contract.  Contracts  entered  into  with- 
out such  authority  or  beyond  the  power  of  the  corporation  are 
necessarily  void.715  Persons  dealing  with  public  corporations 

715  Hitchcock    v.    City    of    Calves-  the    county    attorney    unauthorized, 

ton,  96  U.  S.  341.    A  contract  partly  Pleasant   View   Tp.    v.    Shawgo,    54 

lawful  and  partly   unlawful  if  sep-  Kan.    742;    Gurley   v.   City   of   New 

arable  can  be  enforced  to  the  extent  Orleans,  41  La.  Ann.  75.     Contracts 

that  it  is  lawful.  held  ultra  vires  which  provide  for 

Manhattan    Trust   Co.   v.   City   of  the  performance  of  public  duties  by 

Dayton    (C.    C.    A.)     59    Fed.    327;  private  persons   employed   for  such 

Erskine  v.   Steele   County,   87   Fed.  purpose  by  the  city,  nor  can  the  duty 

630;  City  of  Ft.  Scott  v.  W.  G.  Eads  imposed    by   statute   on   one   officer 

Brokerage  Co.    (C.   C.  A.)   117  Fed.  ue  transferred  to  another  officer  by 

51;    Higgins    v.    San    Diego    Water  the   municipality. 
Co.,    118   Cal.   524,   45   Pac.    824,   50        Greenough  v.  Inhabitants  of  Wake- 

Pac.  670;    Colusa  County  v.   Welch,  field,   127  Mass.  275.     The  payment 

122   Cal.   428.     A  lobbying  contract  of  salaries   due  members   of  a  pri- 

held   invalid.  vate  fire  organization  unauthorized. 

House  v.  Los  Angeles  County,  104  Westminster   Water  Co.   v.   City   of 

Cal.  73;    Contra  Costa  Water  Co.  v.  Westminster,    98    Md.    551,    56    Atl. 

Breed,    139    Cal.    432;    Heuble«n    v.  990;    Lamson   v.   City  of   Marshall, 

City  of  New  Haven,  75  Conn.   545;  133    Mich.    250,   95    N.   W.    78;    Coit 

City  Council  of  Dawson  v.  Dawson  v.  City  of  Grand  Rapids,  115  Mich. 

Water-Works  Co.,  106  Ga.  696;   Val-  493.      A    contract    separable    in    its 

paraiso    v.    Valparaiso    City    Water  parts   can   be  enforced  as   to   those 

Co.,  30  Ind.  App.  316,  65  N.  E.  1063;  which    are   valid.     City   of   Chaska 

Carter  v.  City  of  Dubuque,  35  Iowa,  v.   Hedman,   53   Min.    525;    Sang   v. 

416;    Marion   Water   Co.   v.    City   of  City  of  Duluth,  58  Minn.  81. 
Marion,    121    Iowa,    306,    96    N.    W.         Grannis    v.    Blue    Earth    County 

883;   City  of  Ft.  Wayne  v.  Lehr,  88  Com'rs,   81   Minn.   55.     The  employ- 

Ind.    62.     The    employment   of    pri-  ment  of  outside  persons  to  perform 

vate  persons  to  perform  public  du-  public    services    held    unauthorized, 

ties  held  ultra  vires.     Nicholasville  So   held   in   the    collection    of   back 

Water  Co.  v.  Councilmen  of  Nichol-  taxes.     Saxton  v.  City  of  St.  Joseph, 

asville,  18  Ky.  L.  R.  592,  36  S.  W.  60    Mo.    153;    City   of   Unionville   v. 

549;    South  Covington  Dist.  v.  Ken-  Martin,   95    Mo.   App.   28,   68    S.    W. 

ton  Water  Co.    (Ky.)    78  S.  W.  420.  605;    State   v.   Butler,   178   Mo.   272, 

Waters  v.   Trovillo,  47  Kan.   197.  77  S.  W.  560;   Barber  Asphalt  Pav- 

The  employment   of  counsel  to  try  ing  Co.  v.  Hunt,   100   Mo.   22,   8   JU 

a  case  properly  to  be  conducted  by  R.   A.   110.     The   possession  of   the 

Abb.  Corp — 36. 


$62                                                       POWERS.  §   249 

are  charged  with  notice  of  their  right  to  contract  upon  the  sub- 
ject-matter and  in  the  manner  contemplated,716  or  of  the  legal 
authority  of  public  officials  to  act  on  behalf  of  their  principal.717 
The  acceptance  of  work  under  a  contract  void  for  lack  of  author- 
ity does  not  usually  validate  it.718 

exclusive    right   to   use   a   patented  Mich.   571,  78  N.   W.   660;    State  v. 

article   by   the  contractor   does   not  Minnesota  Transfer  R.  Co.,  80  Minn, 

necessarily  make  a  contract  invalid.  108,  50  L.  R.  A.  656;   Jewell  Baiting 

See,  also,  Verdin  v.  City  of  St.  Louis,  Co.    v.    Bertha,    91    Minn.    9,    97    N. 

131  Mo.  26.  W.    424;    Perkinson   v.    City    of   St. 

City  of  St.  Louis  v.  Davidson,  Louis,  4  Mo.  App.  322;  Saxton  v. 
102  Mo.  149.  Construing  a  con-  City  of  St.  Joseph,  60  Mo.  153; 
tract  for  hiring  work-house  prison-  Gutta  Percha  &  Rubber  Mfg.  Co.  v. 
ers  to  an  independent  contractor.  Village  of  Ogalalla,  40  Neb.  775; 
Joslyn  v.  Dow,  19  Hun  (N.  Y.)  494;  Schumm  v.  Seymour,  24  N.  J.  Eq. 
Suburban  Eiec.  Light  Co.  v.  Town  (9  C.  E.  Green)  143;  Raton  Water- 
of  Hempstead,  38  App.  Div.  355,  56  works  Co.  v.  Town  of  Raton,  9  N. 
N.  Y.  Supp.  443.  Validity  of  con-  M.  70;  Swift  v.  City  of  Williams- 
tract  based  upon  petition  of  pre-  burgh,  24  Barb.  (N.  Y.)  427;  Sub- 
scribed number  of  taxable  inhab-  urban  Elec.  Light  Co.  v.  Town  of 
itants.  Wilson  v.  City  of  Mitchell  Hempstead,  38  App.  Div.  355,  56 
(S.  D.)  97  N.  W.  741;  Galveston  N.  Y.  Supp.  443;  Parr  v.  Village  of 
County  v.  Ducie,  91  Tex.  665.  A  Greenbush,  72  N.  Y.  463;  Moore  v. 
contract  void  in  part  and  severable  City  of  New  York,  73  N.  Y.  238; 
can  be  enforced  as  to  its  valid  pro-  Roberts  v.  City  of  Fargo,  10  N.  D. 
visions.  City  of  Winchester  v.  Red-  230;  Kerr  v.  City  of  Belief ontaine, 
mond,  93  Va.  711;  City  of  Aberdeen  59  Ohio  St.  446;  McAleer  v.  An- 
v.  Honey,  8  Wash.  251;  Abernethy  gell,  19  R.  I.  688,  36  Atl.  588;  City 
v.  Town  of  Medical  Lake,  9  Wash,  of  Bryan  v.  Page,  51  Tex.  532; 
112;  Perry  v.  Superior  City,  26  Wis.  Schneider  v.  City  of  Menasha,  118 
64.  See,  also,  cases  cited  §  246,  Wis.  298. 
supra.  TiTTamm  v.  Lavalle,  92  111.  263; 

fie  City    of    Ft.    Scott    v.    W.    G.  Johnson  v.  Common  Council  of  In- 

Eads  Brokerage  Co.   (C.  C.  A.)   117  dianapolis,  Ib  Ind.  227;  Jay  County 

Fed.    51;    Wallace    v.    City    of    San  Com'rs  v.   Fertich,  18   Ind.   App.   1, 

Jose,  29  Cal.  180;   Griswold  v.  City  46  N.  E.  699;  Osgood  v.  City  of  Bos- 

of  East  St.  Louis,  47  111.  App.  480;  ton,   165  Mass.   281;    Mister  v.  City 

Johnson  v.   Common  Council  of  In-  of  Kansas,  18  Mo.  App.  217;  Cheeney 

dianapolis,  16  Ind.  227;   F.  C.  Aus-  v.  Inhabitants  of  Brookfleld,  60  Mo. 

tin   Mfg.   Co.   v.   Smithfield  Tp.,   21  53;    Sprague   v.    Town    of   Cornish, 

Ind.  App.  609,  52  N.  E.  1011;  McKee  59  N.  H.  161;   New  Jersey  &  N.  E. 

v.  City  of  Greensburg,  160  Ind.  378;  Tel.    Co.   v.   Fire   Com'rs   of  Jersey 

McPherson  v.   Foster,   43   Iowa,  48;  City,   34   N.   J.   Eq.   117;    Briggs   v. 

Murphy  v.  City  of  Louisville,  72  Ky.  City  of  New  York,  2  Daly   (N.  Y.) 

(9    Bush)    189;    Osgood    v.    City   of  304;   Storey  v.  Murphy,  9  N.  D.  115. 

Boston,    165    Mass.    281;     Black    v.  See,  also,  authorities  cited  §  275. 

Common    Council    of    Detroit,    119  TIS  Brady   v.    City   of   New   YorK. 


§  250 


POWER    TO    CONTRACT. 


563 


§  250.     Because  of  purpose  or  result. 

Public  corporations  are  organized  for  the  purpose  of  accom- 
plishing certain  specific  ends  in  connection  with  government; 
they  are  public  agencies  and  not  considered  in  the  conduct  of 
their  ordinary  business  as  private  corporations.  Considering  the 
result  sought  to  be  effected,  without  any  express  limitation  or 
restriction,  it  follows  necessarily,  therefore,  that  an  act  or  con- 
tract is  void  not  in  furtherance  of  the  purpose  or  aim  for  which 
they  are  incorporated;  the  purpose  of  all  acts,  the  result  of  all 
powers  exercised  by  them,  must  be  the  public  advantage;  the 
advancement  of  the  general  welfare  or  the  carrying  out  as  a 
public  agent  of  some  one  or  more  of  the  functions  of  govern- 
ment.719 This  prevents,  by  a  process  of  exclusion,  the  granting 
of  aid  directly  or  indirectly  to  private  enterprises  and  the  mak- 
ing of  contracts  which  do  not  clearly  and  unquestionably  have 
for  their  end  the  accomplishment  of  some  governmental  pur- 
pose ;  it  excludes  all  acts  and  contracts  attempted  under  specious 
socialistic  theories  regarding  the  proper  sphere  of  governmental 
duties  and  powers.720 


20  N.  Y.  312.  See  post,  §§  258,  259, 
279-282. 

Tie  Sutherland-Innes  Co.  v.  Village 
of  Evart  (C.  C.  A.)  86  Fed.  597; 
House  v.  Los  Angeles  County,  104 
Cal.  73.  So  held  of  a  contract  of 
employment  where  its  purpose  was 
to  collect  taxes  due  a  county.  Hay- 
ward  v.  Trustees  of  Town  of  Red 
Cliff,  20  Colo.  33.  A  contract  for 
the  purchase  and  sale  of  town  site 
patents  will  be  invalid.  City  of  Chi- 
cago v.  Williams,  182  111.  135.  The 
employment  of  a  stenographer  by 
city  council  in  a  case  to  which  the 
city  was  not  a  party  unauthorized. 
Roberts  v.  City  of  Cambridge,  164 
Mass.  176.  Contracts  sustained. 
City  of  Bay  St.  Louis  v.  Hancock 
County,  80  Miss.  364,  32  So.  54. 

Town  of  Verona  v.  Peckham,  66 
Barb.  (N.  Y.)  103.  The  validity  of 


an  agreement  for  the  procurement 
of  volunteers  for  the  United  States 
army  considered  and  determined. 
Arnold  v.  City  of  Pawtucket,  21  R.  I. 
15.  See  generally  cases  cited  under 
§§  246-248,  supra. 

720  Akin  v.  Ordinary  of  Bartow 
County,  54  Ga.  59.  A  contract  hav- 
ing for  its  purpose  the  support  of 
indigent  families  of  Confederate 
soldiers  held  not  in  a  legal  sense  as 
being  in  aid  of  the  Rebellion.  Gil- 
lett  v.  Logan  County  Sup'rs,  67  111. 
256;  City  of  Peru  v.  Gleason,  91 
Ind.  566;  Strahan  v.  Town  of  Mal- 
vern,  77  Iowa,  454  (Gift  of  railroad 
right  of  way) ;  City  of  Cleburne  v. 
Brown,  73  Tex.  443.  See,  also,  as 
discussing  the  underlying  princi- 
ples relative  to  the  granting  of  aid 
to  private  enterprises  or  individu- 
als, §§  145  et  seq.;  172  et  seq. 


564  POWERS.  §  252 

§  251.     Contracts  protected  by  constitutional  provisions. 

Valid  contracts  made  by  public  corporations  are  protected  by 
Federal  or  state  constitutional  provisions.  The  clause  most  or- 
dinarily invoked  is  that  of  the  Federal  constitution  which  pro- 
hibits a  state  from  passing  a  law  impairing  the  obligation  of 
a  contract.  The  judicial  interpretation  based  upon  the  term 
"law"  in  this  provision  is  broad  and  includes  not  only  a  law 
passed  by  a  legislative  body  but  also  a  constitutional  amend- 
ment or  provision,  decree  of  court  or  any  act  which  may  be 
ultimately  given  the  force  and  effect  of  law  and  which  im- 
pairs the  obligation  of  a  contract  previously  entered  into  by 
a  public  corporation.721  A  contract  between  an  individual  and 
a  public  corporation  is  fully  protected  by  constitutional  pro- 
visions against  the  impairment  of  a  contract  obligation.  A 
contract  express  or  implied  may  or  may  not  arise  as  against 
a  public  corporation  in  the  making  of  a  grant  or  conveyance; 
the  issue  of  a  license  either  for  the  sale  of  merchandise  or 
the  carrying  on  of  an  occupation  or  profession ;  the  levy  of  taxes 
or  an  exemption  from  taxation;  the  grant  of  a  bounty  or  pen- 
sion; the  location  of  a  county  seat;  a  change  of  the  time  and 
method  for  paying  indebtedness ;  a  diversion  of  property  or  funds 
from  the  purpose  for  which  they  were  devoted  or  created;  im- 
posing conditions  precedent  to  the  payment  of  municipal  indebt- 
edness ;  the  use  of  highways  for  railways,  telephone  and  telegraph 
lines  or  in  proceedings  for  the  construction  of  local  improve- 
ments,— all  of  which  questions  have  been  or  will  be  considered 
in  their  proper  place  to  be  found  by  reference  to  the  index. 

§  252.     Contracts  ultra  vires  because  of  constitutional  provisions. 

There  are  frequently  found  constitutional  or  statutory  pro- 
visions limiting  the  amount  of  the  indebtedness  which  can  be 
legally  incurred  by  public  corporations  or  prohibiting  appropria- 
tions in  the  absence  of  the  necessary  funds  either  in  cash  or  in 
process  of  collection  pursuant  to  some  tax  levy.722  The  incurring 

72i  Houston  &  T.  C.  R.  Co.  v.  State  New  York   Sanitary  Utilization    Co. 
of   Texas,    177    U.    S.    66;    Board    of  v.  Public  Health  Dept,  32  Misc.  577, 
Liquidation  of  New  Orleans  v.  State  67  N.  Y.   Supp.  324. 
of   Louisiana,    179   U.    S.   622;    Peo-        722  Brazoria     County     v.    Youngs- 
pie   v.    Otis,    24    Hun    (N.    Y.)    519;  town  Bridge  Co.   (C.  C.  A.)   80  Fed. 


252 


POWER    TO    CONTRACT. 


565 


of  indebtedness  may,  it  has  been  frequently  held,  be  accomplished 
through  the  making  of  a  contract  because  there  will  arise  as  the 
result  of  a  contract  an  obligation  on  the  part  of  the  corporation 
of  indebtedness  may,  it  has  been  frequently  held,  be  accomplished 
which  must  be  paid  or  satisfied.  This  obligation  is  an  indebted- 
ness, although  it  may  not  be  an  express  one  but  merely  implied, 
and  the  ultimate  monetary  obligation,  when  in  excess  of  the  debt 
limit  fixed  by  law,  to  such  an  extent,  will  be  void.723 


10;  Defiance  Water  Co.  v.  City  of 
Defiance,  90  Fed.  753;  Keith  v.  City 
of  Du  Quoin,  89  111.  App.  36;  Sulli- 
van v.  Highway  Com'rs  of  Deer 
Park,  114  111.  262.  Such  a  contract 
is  valid  where  a  tax  sufficient  to 
satisfy  the  corporate  obligations 
thereunder  has  been  levied  and  in 
process  of  collection. 

Field  v.  Stroube,  103  Ky.  114,  44 
S.  W.  363;  Jackson  Elec.  R.,  Light 
&  Power  Co.  v.  Adams,  79  Miss.  408; 
Hurley  v.  City  of  Trenton,  67  N.  j. 
Law,  350,  51  Atl.  1109;  Raton 
Waterworks  Co.  v.  Town  of  Raton, 
9  N.  M.  70;  Kingsland  v.  City  of 
New  York,  5  Daly  (N.  Y.)  448; 
Woodside  Water  Co.  v.  Long  Island 
Cuy,  23  App.  Div.  78,  48  N.  Y.  Supp: 
686;  Kingsley  v.  City  of  Brooklyn, 
78  N.  Y.  200;  Roberts  v.  City  of 
Fargo,  10  N.  D.  230;  Fire  Extin- 
guisher Mfg.  Co.  v.  City  of  Perry, 
8  Okl.  429;  City  of  Lancaster  v. 
Miller,  58  Ohio  St.  558;  North  Pac. 
Lumbering  &  Mfg.  Co.  v.  City  of 
East  Portland,  14  Or.  3;  Routing  v. 
City  of  Titusville,  175  Pa.  512.  If 
the  expenditure  contemplated  is 
within  the  funds  available  for  such 
purpose,  the  contract  is  valid.  City 
of  Harrisburg  v.  Shepler,  190  Pa. 
374;  Beyer  v.  Town  of  Crandon,  98 
Wis.  306. 

723  Gillette-Herzog  Mfg.  Co.  v.  Can- 
yon County,  85  Fed.  396;  Kimball 
v.  City  of  Cedar  Rapids.  100  Fed. 
802.  If  a  contract  is  separable  in 


its  provisions,  those  which  are  valid 
may  be  enforced  without  regard  to 
the  invalidity  of  others.  Rice  v. 
Trustees  of  Town  of  Haywards,  107 
Cal.  398;  Prince  v.  City  of  Quincy, 
128  111.  443  (Contract  for  water 
supply;  payable  in  monthly  instal- 
ments) ;  City  of  Laporte  v.  Game- 
well  Fire  Alarm  Tel.  Co.,  146  Irfd. 
466,  45  N.  E.  588,  35  L.  R.  A.  686; 
Beard  v.  City  of  Hopkinsville,  95 
Ky.  239;  Johnston  v.  Becker  Coxin- 
ty  Com'rs,  27  Minn.  64;  Raton 
Waterworks  Co.  v.  Town  of  Raton, 
9  N.  M.  70;  People  v.  Fielding,  36 
App.  Div.  401,  55  N.  Y.  Supp.  530; 
Peck-Williamson  Heating  &  Ventilat- 
ing Co.  v.  Board  of  Education  of 
Oklahoma  City,  6  Okl.  279;  Carter 
v.  Thorson,  5  S.  D.  474,  24  L.  R.  A. 
734. 

Berlin  Iron-Bridge  Co.  v.  City  of 
San  Antonio  (Tex.  Civ.  App.)  50 
S.  W.  408.  Contract  will  be  valid, 
however,  if  it  involves  an  expend- 
iture included  within  a  debt  al- 
ready incurred.  Spilman  v.  City  of 
Parkersburg,  35  W.  Va.  605.  See, 
however,  authorities  cited  under  §§ 
152  and  159,  which  establish  the 
conditions  or  circumstances  under 
which  a  contract  is  valid  extending 
over  a  term  of  years,  the  considera- 
tion of  which  is  payable  in  regular 
instalments  conditional  upon  the  fur- 
nishing of  the  commodity  contract- 
ed for.  Carlyle  Water,  Light  & 
Power  Co.  v.  City  of  Carlyle,  31  Rl. 


566 


POWERS. 


253 


§  253.    The  same  subject  continued. 

Public  corporations  may  make  contracts  which  are  ultra  vires 
and  therefore  void  because  in  violation  of  constitutional  pro- 
visions or  rights  other  than  those  above  noted.  They  usually 
provide  that  no  citizen  or  class  of  citizens  shall  be  given  priv- 
ileges or  immunities  not  granted  to  all;724  that  the  right  which 
every  citizen  possesses  to  contract,  except  as  prohibited  by  law 
shall  remain  inviolate;725  and  that  no  person  shall  be  deprived 


App.  325;  Quill  v.  City  of  Indian- 
apolis, 124  Ind.  292,  7  L.  R.  A.  681; 
Frantz  v.  Jacob,  88  Ky.  525;  New- 
gass  v.  City  of  New  Orleans,  42 
La,  Ann.  163. 

724  Van   Harlingen    v.    Doyle,    134 
Cal.  53,  66  Pac.  44,  54  L.  R.  A.  771; 
Tribune  Printing  &  Binding  Co.  v. 
Barnes,  7  N.  D.  591.     §  1807,  Rev. 
Code    does    not   discriminate    either 
against  nonresidents  or  those  whose 
places   of   business   are   situated   in 
another    state.      The    sole    require- 
ment of  the  section  is  that  county 
printing   shall   be   done   within   the 
state. 

725  United  States  v.  Martin,  94  U 
S.    400.     The   scope   of   the  Act  of 
Congress  of  June  25,  1868   (15  Stat. 
77)  declaring  "that  eight  hours  shall 
constitute  a  day's  work  for  all  labor- 
ers,  workmen,   and  mechanics   now 
employed  or  who  may  be  hereafter 
employed   by   or   on    behalf   of   the 
government   of   the   United    States" 
was  under  consideration  by  the  su- 
preme  court   of   the  United   States. 
Justice  Hunt  in  delivering  the  opin- 
ion of  the  court  said  in  part:    "Prin- 
cipals, so  far  as   the  law  can  give 
the  power,   are   entitled   to  employ 
as  many  workmen  and  of  whatever 
degree    of    skill    and    at    whatever 
price  they  think  fit  and,  except  in 
some   special   cases,   as   of   children 
or  orphans,  the  hours  of  labor  and 
the  price  to  be  paid  are  left  to  the 


determination  of  the  parties  inter- 
ested. The  statute  of  the  United 
States  does  not  iuterfere  with  this 
principle.  It  does  not  specify  any 
sum  which  shall  be  paid  for  the 
labor  of  eight  hours  nor  that  the 
price  shall  be  more  when  the  hours 
are  greater,  or  less  when  the  hours 
are  fewer.  It  is  silent  as  to  every- 
thing except  the  direction  to  its  offi- 
cers that  eight  hours  shall  consti- 
tute a  day's  work  for  a  laborer. 
*  *  *  We  regard  the  statute 
chiefly  as  in  the  nature  of  a  direc- 
tion from  a  principal  to  his  agent, 
that  eight  hours  is  deemed  to  be 
a  proper  length  of  time  for  a  day's 
labor,  and  that  his  contracts  shall 
be  based  upon  that  theory.  *  *  * 
We  are  of  the  opinion,  therefore, 
that  contracts  fixing  or  giving  a  dif- 
ferent length  of  time  as  the  day's 
work  are  legal  and  binding  upon 
the  parties  making  them." 

United  States  v.  Gates,  148  U.  S. 
134.  Letter  carriers'  right  to  extra 
pay  for  more  than  eight  hours'  work 
considered.  Holden  v.  Hardy,  169 
U.  S.  366,  affirming  14  Utah,  71. 
The  supreme  court  of  the  United 
States  in  this  case  held,  sustaining 
the  constitutionality  of  a  Utah  stat- 
ute Sess.  Laws  1896,  p.  219,  regu- 
lating the  hours  of  employment  in 
underground  mines  and  in  smelters 
and  ore  reduction  works,  that  it  was 
a  valid  exercise  of  the  police  power 


POWER    TO    CONTRACT. 


567 


of  the  state  and  the  fact  that  both 
parties  were  of  full  age  and  compe- 
tent to  contract  does  not  necessarily 
deprive  the  state  of  the  power  to 
interfere  where  the  parties  do  not 
stand  upon  an  equality  or  where  the 
public  health  demands  that  one  par- 
ty to  the  contract  shall  be  protect- 
ed against  himself.  The  court  in 
its  opinion  by  Mr.  Justice  Brown 
cited  with  approval  14  Utah,  99, 
"  'The  law  in  question  is  confined 
to  the  protection  of  that  class  of 
people  engaged  in  labor  in  under- 
ground mines,  and  in  smelters  and 
other  works  wherein  ores  are  re- 
duced and  refined.  This  law  ap- 
plies only  to  the  classes  subjected 
by  their  employment  to  the  peculiar 
conditions  and  effects  attending  un- 
derground mining  and  work  in 
smelters,  and  other  works  for  the 
reduction  and  refining  of  ores. 
Therefore,  it  is  not  necessary  to 
discuss  or  decide  whether  the  legis- 
lature can  fix  the  hours  of  labor  in 
other  employments.  Though  reason- 
able doubts  may  exist  as  to  the  pow- 
er of  the  legislature  to  pass  a  law, 
or  as  to  whether  the  law  is  calcu- 
lated or  adapted  to  promote  the 
health,  safety,  or  comfort  of  the  peo- 
ple, or  to  secure  good  order,  or  pro- 
mote the  general  welfare,  we  must 
resolve  them  in  favor  of  the  right 
of  that  department  of  government.' 
The  legislature  has  also  recognized 
the  fact,  which  the  experience  of  leg- 
islators in  many  states  has  corrob- 
orated, that  the  proprietors  of  these 
establishments  and  their  operatives 
do  not  stand  upon  an  equality,  and 
that  their  interests  are,  to  a  certain 
extent,  conflicting.  The  former  nat- 
urally desire  to  obtain  as  much 
labor  as  possible  from  their  em- 
ployes, while  the  latter  are  often 
induced  by  the  fear  of  discharge  to 


conform  to  regulations  which  their 
judgment,  fairly  exercised,  would 
pronounce  to  be  detrimental  to 
their  health  or  strength.  In  other 
words,  the  proprietors  lay  down  the 
rules  and  the  laborers  are  practi- 
cally constrained  to  obey  them.  In 
such  cases,  self  interest  is  often  an 
unsafe  guide,  and  the  legislature 
may  properly  interpose  its  author- 
ity. *  *  *  We  have  no  disposi- 
tion to  criticise  the  many  authori- 
ties which  hold  that  state  statutes 
restricting  the  hours  of  labor  are 
unconstitutional.  Indeed,  we  are 
not  called  upon  to  express  an  opin- 
ion upon  this  subject.  It  is  suffi- 
cient to  say  of  them  that  they  have 
no  application  to  cases  where  the 
legislature  had  adjudged  that  a  lim- 
itation is  necessary  for  the  preser- 
vation of  the  health  of  employes,  and 
there  are  reasonable  grounds  for 
believing  that  such  determination 
is  supported  by  the  facts.  The  ques- 
tion in  each  case  is  whether  the 
legislature  has  adopted  the  statute 
in  exercise  of  a  reasonable  discre- 
tion, or  whether  its  action  be  a 
mere  excuse  for  an  unjust  discrim- 
ination, or  the  oppression,  or  spolia- 
tion of  a  particular  class.  The  dis- 
tinction between  these  two  differ- 
ent classes  of  enactments  cannot  be 
better  stated  than  by  a  comparison 
of  the  views  of  this  court  found  in 
the  opinions  in  Barbier  v.  Connolly, 
113  U.  S.  27;  Soon  Hing  v.  Crow- 
ley,  113  U.  S.  703;  with  those  later 
expressed  in  Tick  Wo  v.  Hopkins, 
118  U.  S.  356." 

Leep  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  58  Ark.  407,  23  L.  R.  A.  264; 
In  re  House  Bill  No.  203,  21  Colo. 
27;  In  re  Morgan,  26  Colo.  415,  47 
L.  R.  A.  52;  Luske  v.  Hotchkiss, 
37  Conn.  219;  Ritchie  v.  People,  155 
111.  98,  29  L.  R.  A.  79;  Fiske  v.  Peo- 


5b8 


POWERS. 


§  253 


of  his  life,  liberty  or  property   without  due  process  of  law,726 
the  term  property  including  the  right  to  labor.727 


pie,  188  111.  206,  52  L.  R.  A.  291.  A 
contract  including  a  provision  fix- 
ing the  length  of  time  which  shall 
constitute  a  day's  work  is  void  as 
infringing  on  the  right  which  every 
citizen  possesses  to  contract  except 
as  prohibited  by  law.  McChesney  v. 
People,  200  111.  146  (Eight-hour  and 
alien  labor  contract);  State,  v.  Mar- 
tindale,  47  Kan.  147  (Eight-hour 
statute) ;  In  re  Dalton,  61  Kan.  257, 

47  L.   R.   A.   380    (Eight-hour   stat- 
ute) ;  State  v.  McNally,  48  La.  Ann. 
1450,  36  L.  R.  A.  533;  Com.  v.  Ham- 
ilton Mfg.  Co.,  120  Mass.  383;   Com. 
v.  Perry,  155  Mass.  117,  14  L.  R.  A. 
325;    Low  v.  Rees  Printing  Co.,  41 
Neb.  127,  24  L.  R.  A.  702.     Holding 
unconstitutional  a  statute  which  pro- 
vided that  for  all  classes  of  mechan- 
ics, servants  and  laborers  excepting 
those  engaged  in  farm  and  domestic 
labor,  a  day's  work  should  not  ex- 
ceed eight  hours.    Brooks  v.  Cotton, 

48  N.   H.   50    (Ten  hours  statute); 
Taylor  v.  Porter,  4  Hill  (N.  Y.)  140; 
People  v.  Beck,  10  Misc.  77,  30  N. 
Y.    Supp.    473;    People   v.    Feather- 
stonhaugh,  172  N.  Y.  112,  64  N.  E. 
802,  60  L.  R.  A.  768. 

People  v.  Orange  County  Road 
Const.  Co.,  37  Misc.  341,  75  N.  Y. 
Supp.  510;  McCarthy  v.  City  of 
New  York,  96  N.  Y.  1;  People  v. 
Coler,  166  N.  Y.  1,  52  L.  R.  A.  814; 
People  v.  Coler,  166  N.  Y.  144;  City 
of  Cleveland  v.  Clements  Bros. 
Const.  Co.,  67  Ohio  St.  197,  59  L. 
R.  A.  775;  City  of  Portland  v. 
Baker,  8  Or.  356.  Regarding  enV 
ployment  of  Chinese  labor  on  pub- 
lic improvements.  State  v.  Peel 
Splint  Coal  Co.,  36  W.  Va.  802,  17 
L.  R.  A.  385. 


720  People  v.  Coler,  166  N.  Y.  1, 
52  L.  R.  A.  814.  Considering  the 
New  York  "prevailing  rate  of  wages" 
act,  Laws  1897,  c.  415,  as  amended 
by  Laws  1899,  cc.  192,  567,  and  hold- 
ing it  unconstitutional. 

727  Ex  parte  Kuback,  85  Cal.  274, 
9  L.  R.  A.  482.  Chinese  labor.  Mar- 
shall &  Bruce  Co.  v.  City  of  Nash- 
ville, 109  Tenn.  495,  71  S.  W.  815. 
65  Alb.  Law  J.  102.  The  court  held 
"an  ordinance  providing  that  all 
city  printing  should  bear  a  union 
label  void;  because  it  deprives 
those  not  using  the  label  from  pur- 
suing their  avocation  so  far  as  such 
printing  is  concerned  »and  hence 
contravenes  the  14th  amendment  of 
the  United  States  Constitution;  it 
is  against  public  policy;  and  it  re- 
stricts competition  in  violation  of 
the  charter." 

City  of  Atlanta  v.  Stein,  111  Ga. 
789,  51  L.  R.  A.  335;  Grey  v.  Peo- 
ple, 194  111.  486,  62  N.  E.  894.  Re- 
ferring to  ordinance  invalid  because 
restricting  the  hiring  of  labor  to 
members  of  labor  unions.  Ritchie 
v.  People,  155  111.  98,  29  L.  R.  A. 
79;  Adams  v.  Brenan,  177  111.  194, 
42  L.  R.  A.  718.  Contract  stipulat- 
ing that  only  union  labor  shall  be 
employed  held  invalid.  Holden  v. 
City  of  Alton,  179  111.  318.  A  con- 
tract where  the  statute  requires  a 
letting  to  the  lowest  bidder  is  void 
let  to  one  not  the  lowest  bidder  be- 
cause of  the  employment  of  non- 
union labor  by  him.  Fiske  v.  Peo- 
ple, 188  111.  206,  52  L.  R.  A.  291. 
Contracts  providing  that  only  union 
labor  shall  be  employed  by  contract- 
ors constructing  public  improve- 
ments are  unconstitutional  and  void. 


§  255 


POWER    TO    CONTRACT. 


569 


§  254.     Contracts  ultra  vires  because  contravening  some  exclu- 
sive right. 

The  government  of  the  United  States  is  a  dual  one  consisting 
of  the  National  or  Federal  organization  and  that  of  the  different 
states.  To  the  Federal  government  is  given,  by  the  Federal  con- 
stitution, certain  exclusive  rights.  A  contract  entered  into  by  a 
state  or  a  public  corporation  organized  under  the  laws  of  any 
state  which  infringes  upon  or  attempts  to  regulate  any  such  ex- 
clusive right,  privilege  or  power  is  clearly  void. 

§  255.    Contracts  ultra  vires  because  of  a  beneficial  interest  re- 
sulting to  the  public  officers  executing  them. 

An  officer,  agent  or  employe  of  a  public  corporation  occupies 
as  towards  such  corporation  what  is  termed  a  fiduciary  or  trust 
relation.  This  same  relation  exists  as  between  the  officers  of  a 


St.  Louis  Quarry  &  Const.  Co.  v. 
Von  Versen,  81  Mo.  App.  519.  An 
ordinance  provision  that  all  dressed 
rock  used  in  connection  with  a  speci- 
fied public  work  must  be  dressed 
within  the  limits  of  the  state  of 
Missouri  held  void. 

State  v.  Julow,  129  Mo.  163,  29 
L.  R.  A.  257.  Members  of  labor 
union.  Davenport  v.  Walker,  57 
App.  Div.  221,  68  N.  Y.  Supp.  161. 
An  injunction  will  issue  at  the  suit 
of  a  taxpayer  to  prevent  the  waste 
of  county  funds  by  the  letting  of  a 
contract  for  the  construction  of  a 
county  building  to  a  higher  bidder 
who  agrees  to  employ  only  union 
labor. 

Frame  v.  Felix,  167  Pa.  47,  27  L. 
R.  A.  802.  It  is  inconsistent  with 
a  statute  requiring  a  contract  to  be 
let  to  the  lowest  bidder  to  limit  con- 
tractors to  those  who  will  employ 
men  not  citizens  of  the  United  States 
and  who  will  pay  no  less  than  $1.50 
per  day  for  their  services.  See,  also, 
note  7  Mun.  Corp  Cas.  p.  702.  See, 


also,  the  following  cases  holding 
public  contracts  void  in  which 
there  are  provisions  restricting  com- 
petition: People  v.  Chicago  Gas 
Trust  Co.,  130  111.  268,  8  L.  R.  A. 
497;  Foss  v.  Cummings,  149  111.  353; 
Fishburn  v.  City  of  Chicago,  171  111. 
338,  39  L.  R.  A.  482. 

Street  v.  Varney  Electrical  Sup- 
ply Co.,  160  Ind.  338,  66  N.  E.  895. 
Approving  People  v.  Coler,  166  N. 
Y.  1,  52  L.  R.  A.  814.  An  act  of  the 
legislature  which  required  munici- 
pal corporations  to  pay  for  common 
labor  employed  on  public  works 
more  than  its  market  value  was  in 
this  case  held  void  and  unconstitu- 
tional because  "it  deprives  taxpay- 
ers of  their  privileges  and  immuni- 
ties, of  their  property  without  due 
process  of  law  and  because  it  inter- 
feres unreasonably  with  the  right  of 
contract  and  is  class  legislation." 
City  of  Cleveland  v.  Clements  Bros. 
Const.  Co.,  67  Ohio  St.  197,  59  L. 
R.  A.  775;  Mazet  r.  City  of  Pitts- 
burgh, 137  Pa.  548. 


570  POWERS.  §  255 

private  corporation  and  the  corporation  and  should  applv  in  an 
intensified  degree  to  public  officials  or  employes.  In  a  decision 
by  the  supreme  court  of  the  United  States728  the  court  in  discuss- 
ing the  impossibility  and  inconsistency  of  one  person  represent- 
ing or  attempting  to  represent  personal  and  adverse  interests  in 
the  same  transaction  said : 

"The  general  rule  stands  upon  our  great  moral  obligation  to 
refrain  from  placing  ourselves  in  relations  which  ordinarily  ex- 
cite a  conflict  betwe.en  self-interest  and  integrity.  It  restrains 
all  agents,  public  and  pi  Ivate;  *  *  *  The  disability  *  *  * 
is  a  consequence  of  that  relation  between  them  which  imposes  on 
the  one  a  duty  to  protect  the  interest  of  the  other,  from  the 
faithful  discharge  of  which  duty  his  own  personal  interest  may 
withdraw  him.  In  this  conflict  of  interest,  the  law  wisely  inter- 
poses. It  acts  not  on  the  possibility  that  in  some  cases  the  sense 
of  that  duty  may  prevail  over  the  motives  of  self-interest,  but  it 
provides  against  the  probability  in  many  c'ases,  and  the  danger 
in  all  cases,  that  the  dictates  of  self-interest  will  exercise  a  pre- 
dominant influence,  and  supersede  that  of  duty." 

The  courts  therefore  hold  uniformly  to  the  rule  that  contracts 
executed  by  and  in  behalf  of  a  public  corporation  in  which  the 
officers  so  executing  them  may  directly  or  indirectly  have  a  benefi- 
cial interest  are  absolutely  void.729  This  rule  is  necessary  for 

TZS  Michoud  v.  Gnod,  4  How.  (IT.  the  city  with  the  contract  commod- 

S.)  503.  ity,  namely,  gas. 

729  city  of  London  Elec.  Lighting  Lower  Kings  River  Reclamation 

Co.  v.  City  of  London,  82  Law  T.  Dist.  v.  McCullah,  124  Cal.  17"5.  Con 

(N.  S.)  530.  A  contract,  however,  tracts  with  themselves  for  the  pur 

is  not  rendered  invalid  because  one  chase  of  right  of  way  by  the  trus- 

of  the  shareholders  of  the  contract-  tees  of  a  reclamation  district,  how 

ing  company  is  a  member  of  the  ever,  held  valid  where  such  right  of 

common  council,  a  commissioner  of  way  was  necessary  and  the  price 

sewers  or  a  member  of  the  board  of  paid  not  higher  than  for  other  lands 

aldermen.  of  a  similar  character. 

Berka  v.  Woodward,  125  Cal.  119,  City  of  Macon  v.  Huff,  60  Ga.  221; 

57  Pac.  777,  45  L.  R.  A.  420;  Capron  Dorsett  v.  Garrard,  85  Ga.  734; 

v.  Hitchcock,  98  Cal.  427;  Capital  West  v.  Berry,  98  Ga.  402;  Nuckols 

Gas  Co.  v.  Young,  109  Cal.  140,  29  v.  Lyle,  8  Idaho,  589,  70  Pac.  401; 

L.  R.  A.  463.  Such  contract,  how-  Village  of  Dwight  v.  Palmer,  74  111. 

ever,  is  valid  where  by  law  the  295;  Piatt  County  v.  Republican 

other  party  was  obliged  to  supply  Printing  Co.,  99  111.  App.  411;  White 


§  255 


POWER    TO    CONTRACT. 


571 


the  protection  of  public  funds  from  dishonest  and  scheming  pub- 
lic officials.     As  further  emphasizing  the  rule  suggested,  many 


v.  City  of  Alton,  149  111.  626.  An 
ex-member  of  the  council,  however, 
may  bid  upon  a  contract  for  street 
paving  where  the  ordinance  provid- 
ing for  such  paving  was  passed 
while  he  was  yet  a  member  of  the 
council. 

City  of  Ft.  Wayne  v.  Rosenthal, 
75  Ind.  156;  McGregor  v.  City  of 
Logansport,  79  Ind.  166;  Benton  v. 
Hamilton,  110  Ind.  294;  Trustees 
of  United  Brethren  v.  Rausch,  122 
Ind.  167.  The  fact  that  an  officer  of 
the  city  was  one  of  the  contractor's 
bondsmen  does  not  invalidate  the 
contract  or  the  assessment  levied  to 
pay  for  the  improvement.  City  of 
Ft.  Wayne  v.  Lake  Shore  &  M.  S. 
R.  Co.,  132  Ind.  558,  18  L.  R.  A. 
367.  Such  a  contract  may  be  rati- 
fied, however,  if  the  interested  party 
is  no  longer  a  member  of  the  city 
council. 

Cason  v.  City  of  Lebanon,  153  Ind. 
567.  The  fact  that  the  contractor's 
relative  was  city  engineer  does'  not 
invalidate  a  contract  for  the  making 
of  certain  street  improvements. 
Perry  County  Com'rs  v.  Gardner,  155 
Ind.  165;  Manley  v.  City  of  Atchi- 
son,  9  Kan.  358;  Holderness  v. 
Baker,  44  N.  H.  414;  Stroud  v.  Con- 
sumers' Water  Co.,  56  N.  J.  Law, 
422,  28  Atl.  578;  Klemm  v.  City  of 
Newark,  61  N.  J.  Law,  112,  38  Atl. 
692.  A  contract  for  services  out- 
side the  line  of  his  official  duties 
between  a  municipal  officer  and  the 
city  will  be  maintained. 

West  Jersey  Traction  Co.  v.  Board 
of  Public  Works  of  Camden,  56  N. 
J.  Law,  431;  Nunemacher  v.  City  of 
Louisville,  98  Ky.  334;  Com.  v.  Wil- 
lis, 19  Ky.  L.  R.  962,  42  S.  W. 


1118;  City  of  Winchester  v.  Frazer, 
19  Ky.  L.  R.  1366,  43  S.  W.  453; 
Goodrich  v.  City  of  Waterville,  88 
Me.  39;  People  v.  Township  Board 
of  Overyssel,  11  Mich.  222;  Lewick 
v.  Glazier,  116  Mich.  493,  74  N.  W. 
717.  A  contract  is  not  invalid  be- 
cause the  father  of  the  contractor 
was  also  a  village  trustee  and  passed 
upon  it. 

Macy  v.  City  of  Duluth,  68  Minn. 
452;  State  v.  Rickards,  16  Mont. 
145,  28  L.  R.  A.  298.  A  contract  for 
public  printing  not  affected  by  the 
fact  that  the  manager  of  the  pub- 
lishing house  who  was  paid  a  fixed 
salary  was  a  member  of  the  legis- 
lature at  the  time  of  the  execution 
of  the  contract. 

McElhinney  v.  City  of  Superior, 
32  Neb.  744;  City  of  Broken  Bow 
v.  Broken  Bow  Waterworks  Co.,  57 
Neb.  548,  77  N.  W.  1078.  The  fact 
that  the  mayor  and  other  city  offi- 
cials are  stockholders  in  a  corpora- 
tion will  not  invalidate  a  contract 
made  with  such  corporation  by  the 
municipality. 

Moreland  v.  City  of  Passaic,  63 
N.  J.  Law,  208,  42  Atl.  1058.  A 
contract  with  the  firm,  one  of  the 
partners  being  a  member  of  the  city 
council,  is  not  invalid  by  reason  of 
this  fact;  but  see  the  case  of  Foster 
v.  City  of  Cape  May,  60  N.  J.  Law, 
78,  holding  that  a  contract  will  be 
void  even  where  a  member  of  the 
city  council  held  some  of  the  stock 
of  the  contracting  company  as  col- 
lateral to  a  loan. 

Roosevelt  v.  Draper,  23  N.  Y.  318; 
In  re  Taxpayers  &  Freeholders  of 
Plattsburgh,  27  App.  Div.  353,  50 
N.  Y.  Supp.  356;  Smith  v.  City  of 


572 


POWERS. 


255 


states  contain  statutory  provisions  to  the  effect  that  public  offi- 
cials or  agents  shall  not  be  directly  or  indirectly  interested  in  any 
present  or  future  contract  they  may  make  on  behalf  of  the  public 
corporation  they  represent.730  Where,  under  a  contract  invalid 


Albany,  61  N.  Y.  444;  In  re  Clamp, 
33  Misc.  250,  68  N.  Y.  Supp.  345; 
Snipes  v.  City  of  Winston,  126  N.  C. 
374;  Roberts  v.  First  Nat.  Bank,  8 
N.  D.  504,  79  N.  W.  1049.  The  rule, 
however,  will  not  prevent  the  levy- 
ing of  a  tax  for  the  purpose  of  mak- 
ing payments  upon  a  contract  of 
such  a  character. 

Borough  of  Milford  v.  Milford 
Water  Co.,  124  Pa.  610,  3  L.  R.  A. 
122.  Duncan  v.  City  of  Charleston, 
60  S.  C.  532.  What  is  considered 
the  correct  rule  is  held  in  this  case, 
namely,  that  where  members  of  a 
city  council  are  also  stockholders 
in  a  corporation  this  precludes  the 
making  of  a  contract  by  the  city 
council  with  such  corporation.  There 
is  no  doubt  of  the  soundness  of  the 
principle  in  the  text;  if  it  is  to  be 
maintained,  the  line  between  con- 
tracts valid  or  invalid  because  of 
the  fact  of  a  beneficial  interest  re- 
sulting to  the  officers  of  the  corpora- 
tion must  be  rigidly  drawn  and 
maintained. 

Texas  Anchor  Fence  Co.  v.  City 
of  San  Antflnio,  30  Tex.  Civ.  App. 
561;  Land,  Log  &  Lumber  Co. 
v.  Mclntyre,  100  Wis.  258;  Quayle 
v.  Bayfield  County,  114  Wis.  108. 
But  see  Tucker  v.  Howard,  122 
Mass.  529;  Nicoll  T.  Sands,  131 
N.  Y.  19;  Stott  v.  Franey,  20 
Or.  410;  Trainer  v.  Wolfe,  14~0  Pa. 
279;  Albright  v.  Town  Council  of 
Chester,  9  Rich.  Law  (S.  C.)  399; 
Pickett  v.  School  Dist.  No.  1,  25 
Wis.  551. 

730  Santa  Ana  Water  Co.  v.  Town 
of  San  Buenaventura,  65  Fed.  323; 


Gibbons  v.  Mobile  &  G.  N.  R.  Co.,  36 
Ala.  410;  Berka  v.  Woodward,  125 
Cal.  119,  2  Mun.  Corp.  Cas.  566,  45 
L.  R.  A.  420.  "Here  was  an  implied 
contract,  but  it  was  one  prohibited 
by  the  statute  law  as  well  as  by  con- 
siderations of  public  policy,  and  the 
plaintiff  was  denied  any  recovery. 
Our  statutes  are  general  in  prohibit- 
ing any  officer  from  being  interested 
in  such  contracts,  and,  if  ever  there 
was  an  occasion  for  its  strict  en- 
forcement, it  certainly  exists  in  a 
case  such  as  this,  where  the  con- 
tractor is  a  member  of  the  common 
council,  whose  duty  it  is  to  make 
such  contracts  on  behalf  of  the  city. 
He  cannot  be  permitted  to  place 
himself  in  any  position  where  his 
personal  interest  will  conflict  with 
the  faithful  performance  of  his  duty 
as  trustee,  and  it  matters  not  how 
fair  upon  the  face  of  it  the  con- 
tract may  be  the  law  will  not  suffer 
him  to  occupy  a  position  so  equivocal 
and  so  fraught  with  temptation. 
Note  the  situation  here  presented. 
This  material  was  obtained  from  a 
member  of  the  city  council,  and  he, 
as  a  member  of  that  council,  sits  in 
judgment  upon  the  validity  and 
amount  of  his  own  claim.  If  he 
does  not  act,  still  the  city  is  de- 
prived of  its  right  to  his  services 
and  judgment  in  determining  these 
very  questions." 

Village  of  Dwight  v.  Palmer,  74 
111.  295;  McGregor  v.  City  of  Logans- 
port,  79  Ind.  166;  Case  v.  Johnson. 
91  Ind.  477;  Benton  v.  Hamilton,  110 
Ind.  294;  Nunemacher  v.  City  of 
Louisville,  98  Ky.  334;  Brackett  v. 


§  256 


POWER    TO    CONTRACT. 


573 


because  of  the  principle  stated  above,  the  public  corporation  has 
received  articles  or  services  of  value  and  which  it  properly  could, 
many  cases  hold  that  though  the  contract  cannot  be  enforced, 
still  a  recovery  will  be  permitted  on  the  basis  of  a  quantum 
meruit  for  the  services  or  things  actually  rendered  or  furnished.781 


§  256.     Contracts  ultra  vires  because  of  fraud  or  bribery. 

A  contract  to  which  a  public  corporation  is  a  party  may  be 
void  and  incapable  of  enforcement  because  of  illegal  or  fraudu- 
lent means  usedx  either  in  its  original  procurement  or  in  its  actual 
execution.  The  general  rule  of  law  in  this  respect  applies  to  such 
contracts.732 


City  of  Boston,  157  Mass.  177;  God- 
dard  v.  City  of  Lowell,  179  Mass. 
496;  State  v.  City  of  Great  Falls, 
19  Mont.  518;  Stroud  v.  Consumers' 
Water  Co.,  56  N.  J.  Law,  422,  28  Atl. 
578;  State  v.  Funk,  16  Ohio  Circ. 
R.  155;  Com.  v.  Philadelphia  Coun- 
ty Com'rs,  2  Serg.  &  R.  (Pa.)  193; 
Com.  v.  Thum,  10  Serg.  &  R.  (Pa.) 
418;  Com.  v.  Hurd,  177  Pa.  481; 
Com.  v.  De  Camp,  177  Pa.  112. 

Marshall  v.  Elwood  City  Borough, 
189  Pa.  348.  Not  applied  to  a  con- 
tract where  one  of  the  members  of 
the  council  was  a  stockholder  in 
the  contracting  company,  there  be- 
ing a  majority  of  the  council  in 
favor  of  such  contract  exclusive  of 
this  member. 

City  of  Northport  v.  Northport 
Town  Site  Co.,  27  Wash.  543;  Lil- 
lard  v.  Freestone  County,  23  Tex. 
Civ.  App.  363.  See,  also,  Bell  v. 
Quin,  4  N.  Y.  Super.  Ct.  (2  Sandf.) 
146;  and  City  of  Anna  v.  O'Calla- 
han,  3  111.  App.  176,  which  holds 
that  the  statutory  prohibition  against 
city  officials  being  interested  in  any 
contract  work  or  business  of  the 
city  does  not  prevent  an  officer  from 
ordering  an  article  by  authority  of 


the  city  and  advancing  the  money 
to  pay  for  it. 

"I  Spearman  v.  Texarkana,  58 
Ark.  348,  22  L.  R.  A.  855;  Capital 
Gas  Co.  v.  Young,  109  Cal.  140,  29 
L.  R.  A.  463;  City  of  Macon  v'.  Huff, 
60  Ga.  221;  City  of  Concordia  v. 
Hagaman,  1  Kan.  App.  35,  41  Pac. 
133;  City  of  Niles  v.  Muzzy,  33 
Mich.  61;  Currie  v.  School  Dist.  No. 
26,  35  Minn.  163;  Grand  Island  Gas 
Co.  v.  West,  28  Neb.  853;  Call  Pub. 
Co.  v.  City  of  Lincoln,  29  Neb.  149; 
Gardner  v.  Butler,  30  N.  J.  Eq.  702; 
Pickett  v.  School  Dist.  No.  1,  25 
Wis.  551.  See,  also,  §  259  post,  and 
authorities  cited. 

732  Rice  v.  Trustees  of  Hayward, 
107  Cal.  398;  Woodward  v.  Collett, 
20  Ky.  L.  R.  1066.  An  agreement 
that  the  successful  bidder  shall  di- 
vide the  work  held  not  a  fraudulent 
condition.  Devlin  v.  City  of  New 
York,  4  Misc.  106,  23  N.  Y.  Supp. 
888;  Adamson  v.  Nassau  Elec.  R. 
Co.,  12  Misc.  600,  33  N.  Y.  Supp. 
732;  State  v.  Kern,  51  N.  J.  Law, 
259;  Madden  v.  Van  Wyck,  35  Misc. 
645,  72  N.  Y.  Supp.  135.  Complaint 
contained  no  allegations  of  fraud 
and  held  insufficient.  In  re  Ander- 


574 


POWERS. 


§  257 


§  257.    Contracts  ultra  vires  because  extending  beyond  official 
term. 

Many  contracts  made  by  public  corporations  are  for  supplies 
used  by  them  in  the  conduct  of  their  public  business  or  in  the 
carrying  on  of  various  proprietary  interests.  Such  contracts 
when  involving  large  expenditures  usually  extend  over  a  period 
of  years;  this  is  especially  true  of  contracts  or  franchises  in  the 
nature  of  contracts  granted  private  corporations  for  furnishing 
supplies  of  water  and  light.  These  have  been  claimed  as  ultra 
vires  because  restricting  or  limiting  the  power  of  succeeding 
public  officials  or  legislative  bodies,  it  being  vital  to  the  public 
welfare  that  each  legislative  body  or  public  official  should  be 
able  to  do  whatever  the  varying  circumstances  and  present  exi- 
gencies require,733  and  in  some  instances  because  of  their  extend- 
ing for  what  is  urged  as  an  unreasonable  length  of  time.  In  re- 
gard to  contracts  made  by  public  corporations  for  the  securing 
of  a  supply  of  water  and  light,  it  was  well  said  by  Judge  Lochren 
of  the  Federal  bench  in  a  recent  case734  in  the  Eighth  Circuit, 
"Contracts  on  the  part  of  a  municipality  for  the  supply  to  the 
municipality  and  to  its  citizens,  of  water  and  light  are  not  made 


son,  109  N.  Y.  554;  Byers  v.  Manley 
Mfg.  Co.  (Tenn.  Ch.  App.)  46  S.  W. 
547;  City  of  Witchita  Falls  v.  Skeen, 
18  Tex.  Civ.  App.  632.  The  agree- 
ment to  divide  work  secured  by  the 
successful  bidder  among  those  com- 
peting renders  the  contract  void. 
Herman  v.  City  of  Oconto,  100  Wis. 
391. 

733  Gale  v.  Village  of  Kalamazoo, 
23  Mich.  344.  The  court  by  Judge 
Cooley  in  part  said:  "It  is  impos- 
sible to  predicate  reasonableness  of 
any  contract  by  which  the  govern- 
ing authority  abdicates  any  of  its 
legislative  powers,  and  precludes  it- 
self from  meeting  in  the  proper  way 
the  emergencies  that  may  arise. 
Those  powers  are  conferred  in  order 
to  be  exercised  again  and  again,  as 
may  be  found  needful  or  politic; 
and  those  who  hold  them  in  trust 


today  are  vested  with  no  discre- 
tion to  circumscribe  their  limits  or 
diminish  their  efficiency  but  must 
transmit  them  unimpaired  to  their 
successors.  This  is  one  of  the  funda- 
mental maxims  of  government  and 
it  is  impossible  that  free  govern- 
ment with  restrictions  for  the  pro- 
tection of  individual  or  municipal 
rights  could  long  exist  without  its 
recognition."  See,  also,  authorities 
for  and  against  the  rule  cited  and 
reviewed  in  Columbus  Water-Works 
Co.  v.  City  of  Columbus,  48  Kan.  99, 
15  L.  R.  A.  354,  where  it  is  held 
that  though  a  city  may  be  power- 
less to  make  a  contract  for  water 
supply  for  21  years,  still  the  con- 
tract should  be  upheld  for  a  rea- 
sonable time. 

"4  Little  Falls  Elec.  &  Water  Co. 
v.  City  of  Little  Falls,  102  Fed.  663. 


§  257 


POWER    TO    CONTRACT. 


575 


in  the  exercise  of  the  governmental  powers  vested  in  the  mu- 
nicipal council,  but  of  its  proprietary  or  business  powers.  It  is 
acting  for  the  private  benefit  of  itself  and  its  inhabitants,  and  its 
contracts  of  that  character  are  governed  by  the  same  rules  that 
govern  contracts  of  private  individuals  and  corporations." 

Such  contracts  usually  held  good  require  for  their  performance 
the  expenditure  of  large  sums  of  money  and  the  erection  of 
plants  such  as  it  has  been  learned  through  experience,  a  public 
corporation  should  not  directly  attempt.  Private  capital  will 
not  engage  in  such  enterprises  when  the  contract  runs  for  a 
limited  time  because  the  returns  for  such  period  will  not  be  com- 
mensurate with  the  capital  invested  and  necessary  skill.735 


735  Chenango  Bridge  Co.  v.  Bing- 
hampton  Bridge  Co.,  70  U.  S.  (3 
Wall.)  51.  "The  purposes  to  be  at- 
tained are  generally  beyond  the 
ability  of  individual  enterprise,  and 
can  only  be  accomplished  through 
the  aid  of  associated  wealth.  This 
will  not  be  risked  unless  privileges 
are  given  and  securities  furnished 
in  an  act  of  incorporation.  The 
wants  of  the  public  are  often  so  im- 
perative, that  a  duty  is  imposed  on 
government  to  provide  for  them; 
and  as  experience  has  proved  that 
a  state  should  not  directly  attempt 
to  do  this,  it  is  necessary  to  confer 
on  others  the  faculty  of  doing  what 
the  sovereign  power  is  unwilling  to 
undertake.  The  legislature,  there- 
fore, says  to  public-spirited  citizens: 
'If  you  will  embark,  with  your  time, 
money,  and  skill,  in  an  enterprise 
which  will  accommodate  the  public 
necessities,  we  will  grant  to  you, 
for  a  limited  period,  or  in  perpetu- 
ity, privileges  that  will  justify  the 
expenditure  of  your  money,  and  the 
employment  of  your  time  and  skill.' 
Such  a  grant  is  a  contract,  with 
mutual  considerations,  and  justice 
and  good  policy  alike  require  that 
the  protection  of  the  law  should  be 
assured  to  it." 


Manhattan  Trust  Co.  v.  City  of 
Dayton  (C.  C.  A.)  59  Fed.  327,  af- 
firming 55  Fed.  181.  Where  a  city 
is  authorized  to  contract  for  ten 
years,  a  contract  for  twenty  y^ars 
or  for  a  longer  time  is  entirely  void. 
It  is  not  valid  even  for  the  period 
of  ten  years.  Defiance  Water  Co.  v. 
City  of  Defiance,  90  Fed.  753;  City 
Council  of  Montgomery  v.  Mont- 
gomery Water-Works  Co.,  79  Ala. 
233;  Capital  City  Water  Co.  v.  City 
Council  of  Montgomery,  92  Ala.  366; 
McBean  v.  City  of  Fresno,  112  Cal. 
159,  44  Pac.  358,  31  L.  R.  A.  794. 
Five-year  sewage  contract  valid. 
Higgins  v.  City  of  San  Diego  (Cal.) 
45  Pac.  824.  Twenty-year  water- 
works contract  valid.  Cartersville 
Imp.  Gas  &  Water  Co.  v.  City  of 
Cartersville,  89  Ga.  683.  The  valid- 
ity of  a  long  term  contract  is  de- 
pendent upon  an  affirmative  popu- 
lar vote  as  required  by  the  state 
constitution. 

Carlyle  Water,  Light  &  Power  Co. 
v.  City  of  Carlyle,  31  111.  App.  325; 
City  of  Carlyle  v.  Carlyle  Water, 
Light  &  Power  Co.,  52  111.  App.  577. 
In  a  contract  for  a  supply  of  water 
for  a  term  of  thirty  years  the 
power  is  withheld  to  fix  a  price 
to  apply  during  the  entire  period. 


576 


POWERS. 


§  257 


Unless  some  valid  or  consistent  reason  appears  as  suggested  in 
this  section,  contracts  are  void  made  by  public  officials  beyond 


City  of  Indianapolis  v.  Indianapo- 
lis Gaslight  &  Coke  Co.,  66  Ind. 
<jy6;  City  of  Valparaiso  v.  Gardner,1 
97  Ind.  1;  Crowder  v.  Town  of  Sul- 
livan, 128  Ind.  486,  13  L.  R.  A.  647; 
City  of  Rushville  v.  Rushville  Nat- 
ural Gas  Co.,  132  Ind.  575,  15  L. 
R.  A.  321;  City  of  Vincennes  v.  Cit- 
izens' Gaslight  Co.,  132  Ind.  114, 
16  L.  R.  A.  485.  Contract  running 
for  twenty-five  years  authorized. 
Emmert  v.  De  Long,  12  Kan.  67; 
Columbus  Water-Works  Co.  v.  City 
of  Columbus,  48  Kan.  99,  15  L.  R. 
A.  354.  Twenty-one  year  water  con- 
tract held  good.  New  Orleans  Gas 
Light  Co.  v.  City  of  New  Orleans, 
42  La.  Ann.  188.  Ten-year  contract 
valid;  .not  a  restriction  on  legis- 
lative power  of  council. 

State  v.  McCardy,  62  Minn.  509; 
Light,  Heat  &  Water  Co.  v.  City 
of  Jackson,  73  Miss.  598.  A  twenty- 
year  contract  not  ultra  vires.  State 
T.  City  of  Great  Falls,  19  Mont.  518. 
The  court  said  following  the  deci- 
sion of  Judge  Lochren  cited  above 
that  a  city  in  contracting  for  water- 
works exercised  its  proprietary  pow- 
ers as  distinguished  from  its  legis- 
lative and  therefore  a  long-time 
contract  for  such  purpose  was  not 
void  as  restricting  the  legislative 
powers  of  future  municipal  coun- 
cils. 

Blood  v.  Manchester  Elec.  Light 
Co.,  68  N.  H.  340,  39  L.  R.  A.  431; 
Davis  v.  Town  of  Harrison,  46  N. 
J.  Law,  79;  Van  Giesen  v.  Inhab- 
itants of  Bloomfleld,  47  N.  J.  Law, 
442.  Ten-year  water  contract  held 
good.  Atlantic  City  Water-works 
Co.  v.  Atlantic  City,  48  N.  J.  Law, 
378;  Smith  v.  Borough  of  Avon-By- 


The-Sea,  68  N.  J.  Law,  243,  52  Atl. 
226;  Board  of  Finance  of  Jersey 
City  v.  Street  &  Water  Com'rs,  55 
N.  J.  Law,  230. 

City  of  Wellston  v.  Morgan,  59 
Ohio  St.  147.  Under  the  Ohio  stat- 
utes, a  municipal  corporation  may 
contract  for  the  lighting  of  its 
streets  for  a  period  not  exceeding 
ten  years.  A  contract  extending 
over  a  longer  period  of  time  is  ultra 
vires  and  void.  See,  also,  question 
discussed  and  authorities  under  sec- 
tion on  exclusive  franchises.  But 
see  to  the  contrary,  Garrison  v.  City 
of  Chicago,  7  Biss.  480,  Fed.  Gas. 
No.  5,255;  Illinois  Cent.  Hospital 
for  Insane  v.  City  of  Jacksonville, 
61  111.  App.  199;  City  of  Somerset 
v.  Smith,  20  Ky.  L.  R.  1488,  49  S. 
W.  456;  Mealey  v.  City  of  Hagers- 
town,  92  Md.  741;  Long  v.  City  of 
Duluth,  49  Minn.  280;  Flynn  v.  Lit- 
tle Falls  Elec.  &  Water  Co.,  74  Minn. 
180.  See  same  case  decided  to  the 
contrary  by  the  Federal  Court  and 
referred  to  above.  Little  Falls  Elec. 
&  Water  Co.  v.  Little  Falls,  102  Fed. 
663;  Town  of  Kirkwood  v.  Meramec 
Highlands  Co.,  94  Mo.  App.  637; 
Taylor  v.  City  of  Lambertville,  43 
N.  J.  Eq.  107.  Power  to  contract 
limited  to  one  year  under  special 
charter  provision. 

Humphreys  v.  City  of  Bayonne, 
55  N.  J.  Law,  241;  Richmond  Coun- 
ty Gas-Light  Co.  v.  Town  of  Middle- 
town,  59  N.  Y.  228;  State  v.  Iron- 
ton  Gas  Co.,  37  Ohio  St.  45.  A  con- 
tract good  only  for  the  time  per- 
mitted by  city  charter.  Columbus 
Gas  Light  &  Coke  Co.  v.  City  of 
Columbus.  50  Ohio  St.  65.  19  L.  R. 
A.  510.  Construing  contract  rela- 


§  258 


POWER    TO    CONTRACT. 


577 


their  term  of  office  or  under  circumstances  indicating  a  lack  of 
good  faith.736 

§  258.    Ultra  vires  contracts;  their  enforcement. 

An  unauthorized  or  an  illegal  contract  executed  by  a  public 
corporation  is  incapable  of  enforcement.  It  is  absolutely  void 
and  neither  the  doctrine  of  estoppel  nor  ratification  can  be  in- 
voked to  maintain  it.  The  strict  rule  of  law  applying  to  ultra 
vires  contracts  of  corporations  as  followed  by  the  English  courts 
and  the  Federal  decisions  in  this  country  is  strictly  applied  to 
the  acts  of  public  corporations.737  However,  some  cases  hold 


tive  to  the  grading  and  improve- 
ment of  city  streets.  City  of  Bren- 
ham  v.  Brenham  Water  Co.,  67  Tex. 
549. 

736  People  v.  Ward,  107  Cal.  236; 
Millikin  v.  Edgar  County,  142  111. 
528,  32  N.  E.  493,  18  L.  R.  A.  447; 
Shelden  v.  Butler  County  Com'rs, 
48  Kan.  356,  16  L.  R.  A.  257;  Coffey 
County  Com'rs  v.  Smith,  50  Kan. 
350,  32  Pac.  30;  City  Sav.  Bank  v. 
Wayne  County  Treasurer,  84  Mich. 
391;  Hendrickson  v.  City  of  NeV 
York,  38  App.  Div.  480,  56  N.  Y. 
Supp.  580;  New  York,  N.  H.  &  H.  R. 
Co.  v.  Village  of  New  Rochelle,  29 
Misc.  195,  60  N.  Y.  Supp.  904;  Va- 
cheron  v.  City  of  New  York,  34 
Misc.  420,  69  N.  Y.  Supp.  608.  Ten- 
year  contract  for  sprinkling  roads 
held  invalid.  But  see  the  follow- 
ing cases  as  holding  to  the  contrary 
where  the  contract  was  made  in 
good  faith:  Wilson  v.  East  Bridge- 
port School  Dist,  36  Conn.  280; 
Hendersonville  v.  Price,  96  N.  C. 
423;  Wait  v.  Ray,  67  N.  Y.  36. 

Marden  v.  Champlin,  17  R.  I.  423, 
22  Atl.  938.  A  contract  duly  made 
for  a  lease  under  proper  authority 
cannot  be  ignored  by  a  succeeding 
council,  it  is  held  in  this  case. 

Webb  v.  Spokane  County,  9  Wash. 


103.  A  board  of  county  commis- 
sioners, with  power  to  contract  for 
the  services  of  a  county  physician 
have  the  right  to  make  such  a  con- 
tract for  a  year,  though  the  mem- 
bers of  the  board  are  about  to  go 
out  of  office  in  a  few  days.  The 
court  said:  "For  aught  that  ap- 
pears the  agreement  was  entered 
into  in  good  faith  and,  if  so,  it  ought 
not  to  be  set  aside  for  the  reason 
assigned." 

737  Manhattan  Trust  Co.  v.  City 
of  Dayton  (C.  C.  A.)  59  Fed.  327; 
Gamewell  Fire-Alarm  Tel.  Co.  v. 
City  of  Laporte  (C.  C.  A.)  102  Fed. 
417;  Santa  Cruz  Rock  Pavement  Co. 
v.  Broderick,  113  Cal.  628;  Frick  v. 
City  of  Los  Angeles,  115  Cal.  512; 
City  Council  of  Dawson  v.  Dawson 
Water-works  Co.,  106  Ga.  696;  City 
of  Chicago  v.  Peck,  196  111.  260; 
Hamilton  v.  City  of  Shelbyville,  6 
Ind.  App.  538;  City  of  McPherson 
v.  Nichols,  48  Kan.  430;  State  v. 
Lanier,  47  La.  Ann.  110;  City  of 
Chaska  v.  Hedman,  53  Minn.  525. 
A  city  may,  however,  recover  mon- 
eys paid  out  by  its  officers  on  ac- 
count of  an  ultra  vires  contract. 
Grannis  v.  Blue  Earth  County 
Com'rs,  81  Minn.  55;  Kansas  City 
v.  O'Connor,  82  Mo.  App.  655;  State 


Abb.  Corp. — 37. 


578 


POWERS. 


§  259 


that  the  character  of  a  contract  will  not  prevent  the  right  of  the 
public  to  equitable  relief,738  nor  will  it  prevent  extending  the 
American  rule  regarding  ultra  vires  acts  where  the  application 
of  the  strict  rule  would  not  accomplish  justice  but  effect  a  legal 
wrong.739 

§  259.    Availability  of  the  doctrine  of  estoppel. 

Where  an  application  of  the  strict  rule  relative  to  the  ul- 
tra vires  contracts  of  private  corporations  would  result  in  in- 
justice, many  courts  hold  that  a  more  liberal  one  should  be 
followed  and  that  the  equities  as  between  the  parties  should 
be  established  and  maintained.  The  courts,  however,  quite  uni- 
formly agree  that  this  principle  cannot  be  applied  under  the  same 
conditions  or  circumstances  to  acts  of  public  corporations;  that 
the  corporation  can  never  be  estopped  to  set  up  as  a  defense  the 
fact  that  the  contract  sought  to  be  enforced  was  ultra  vires  either 
because  of  lack  of  authority  or  because  in  contravention  of  some 
charter,  constitutional  or  statutory  provision.740  But  a  party 


v.  Murphy,  134  Mo.  548,  34  L.  R.  A. 
369;  State  v.  City  of  Crete,  32  Neb. 
568;  Noel  v.  City  of  San  Antonio, 
11  Tex.  Civ.  App.  580;  City  of  Win- 
chester v.  Redmond,  93  Va.  711; 
Young  v.  State,  19  Wash.  634;  Per- 
ry v.  Superior  City,  26  Wis.  64. 

TSS  City  of  Detroit  v.  Detroit  City 
R.  Co.,  56  Fed.  867.  See,  also,  City 
of  New  Haven  v.  New  Haven  &  D. 
R.  Co.,  62  Conn.  252,  18  L.  R.  A. 
256. 

739  Town    of    Monticello    v.    Cohn, 
48    Ark.    254;    Paulding    County    v. 
Scoggins,  97  Ga.  253;   Westbrook  v. 
Middlecoff,  99  111.  App.  327;  State  v. 
City    of    Helena,    24    Mont.    521,    55 
L.    R.    A.    336;    Parker   v.    City    of 
Philadelphia,   92  Pa.  401;    Edwards 
County    v.    Jennings,    89    Tex.    618. 
See,  also,   §   259,  post. 

740  Willis    v.    Wyandotte    County 
Com'rs     (C.    C.    A.)     86    Fed.    872; 
Hays    v.    Ahlrichs,    115     Ala.     239; 
22   So.  465.     The  lack  of  authority 


to  make  a  certain  contract  cannot 
be  inquired  into  in  a  collateral  pro- 
ceeding. 

City  Council  of  Montgomery  v. 
Montgomery  &  W.  Plank-Road  Co., 
31  Ala.  76.  The  rule  also  applies 
in  favor  of  the  other  party  to  the 
contract.  Wiegel  v.  Pulaski  Coun- 
ty, 61  Ark.  74.  The  acceptance  of 
work  under  an  ultra  vires  contract 
will  not  estop  the  county  from  set- 
ting up  as  a  defense  its  illegal 
character. 

National  Tube-Works  Co.  v.  City 
of  Chamberlain,  5  Dak.  54.  A  mere 
informality,  however,  in  the  execu- 
tion of  a  contract  cannot  be  claim- 
ed by  the  city  as  a  sufficient  rea- 
son for  holding  it  void.  Hampton 
v.  Logan  County  Com'rs,  4  Idaho, 
646,  43  Pac.  324.  No  recovery  un- 
der a  quantum  meruit  for  services 
rendered  under  an  ultra  vires  con- 
tract. 

F.  C.  Austin   Mfg.   Co.  v.   Smith- 


§   259                                  POWER    TO  CONTRACT.                                        579 

dealing  with  a  public  corporation  and  after  having  received  the 
benefits  or  advantages  of  the  transaction  is  estopped  to  deny  the 
authority  of  the  corporation  to  engage  in  the  transaction.741 
This  principle  does  not  seem  correct,  however,  for  it  denies  to  the 
private  individual  through  the  operation  of  the  doctrine  of 

field  Tp.,  21  Ind.  App.  609,  52  N.  E.  Supp.    894;     Union    Bank    of    Rich- 

1011.     A  contract  debt  for  supplies  mond    v.    Town    of    Oxford    Com'rs, 

in     excess     of    statutory     authority  119    N.    C.    214,    34    L.    R.    A.    487; 

cannot     be     enforced     against     the  Roberts  v.  City  of  Fargo,  10  N.  D. 

township  even  though  the  township  230;    McAleer    v.    Angell,    19    R.    I. 

receives,    uses,    and    never    returns  688;  Huron  Waterworks  Co.  v.  City 

them.      Morrison    v.    Decatur   Coun-  of   Huron,   7    S.    D.   9,    30  L.   R.   A. 

ty  Com'rs,  16   Ind.  App.  317,  44  N.  848;  A.  H.  Andrews  &  Co.  v.  Curtis, 

E.   65,   1012.     No  recovery  under  a  2  Tex.  Civ.  App.  678;    Noel  v.  City 

quantum    valebat    for   supplies   fur-  of  San  Antonio,   11  Tex.   Civ.   App. 

nished    under    an    ultra    vires    con-  580,  33  S.  W.  263;   Ellis  v.  City  of 

tract.  Cleburne  (Tex.  Civ.  App.)  35  S.  W. 

Axt    v.    Jackson    School    Tp.,    90  495.     An   ultra  vires   contract  can- 

Ind.    101;    City   of   Leavenworth   v.  not  be  ratified. 

Rankin,  2  Kan.  357;   Salt  Creek  Tp.  Indiana   Road  Mach.   Co.   v.   City 

v.    King    Iron    Bridge    &    Mfg.    Co.,  of     Sulphur     Springs      (Tex.     Civ. 

51   Kan.   520;    Hovey   v.   Wyandotte  App.)    63   S.  W.  908;    State  v.  City 

County    Com'rs,    56    Kan.    577.      An  of  Pullman,  23  Wash.  583.     A  con- 

acceptauce   of   the   work   performed  tract   ultra  vires   is  void   from  the 

under  an   ultra   vires  contract  will  beginning  and  incapable  of  ratifica- 

not  render  the  county  liable.     Mea-  tion.     Beyer   v.   Town   of   Crandon, 

ley  v.   City   of  Hagerstown,   92  Md.  98    Wis.    306.     But    see   as    holding 

741;     Newberry    v.    Fox,    37    Minn,  that  the   doctrine   of  estoppel    may 

141;     Bazille     v.     Ramsey     County  operate    against    the    public    corpo- 

Com'rs,  71  Minn.  198;   State  v.  Min-  ration,     The    Maggie     P.,    25     Fed. 

nesota    Transfer    R.    Co.,    80    Minn.  202;    State  v.  Cockrem,  25  La.  Ann. 

108,    50    L.    R.    A.    656;    Heidelburg  356;    City  of   New  Orleans  v.  Cres- 

v.    St.    Francois    County,    100    Mo.  cent  City  R.  Co.,  41  La.  Ann.  904; 

69.     The   acceptance    or  work   does  uity  of  Natchez  v.  Mallery,  54  Miss. 

not    render    a   county   liable.      State  499. 

v.  Murphy,  134  Mo.  548,  34  L.  R.  A.  74i  City  of  Helena  v.  Turner,  36 
369;  Wheeler  v.  City  of  Poplar  Ark.  577;  Town  of  Monticello  v. 
Bluff,  149  Mo.  36;  Snyder  v.  Board  Cohn,  48  Ark.  254;  and  City  of 
of  Education  of  Albuquerque,  10  N.  St.  Louis  v.  Davidson,  102  Mo.  149; 
M.  446,  62  Pac.  1090;  Read  v.  Atlan-  City  of  New  York  v.  Sonneborn,  113 
tic  City,  49  N.  J.  Law,  558;  Atlan-  N.  Y.  423;  City  of  Buffalo  v.  Bal- 
tic City  Water  Works  Co.  v.  Read,  com,  134  N.  Y.  532;  Town  of  Bris- 
50  N.  J.  Law,  665,  affirming  by  tie  tol  v.  Bristol  &  Warren  Water 
vote  preceding  case.  Works,  19  R.  I.  413,  32  L.  R.  A. 

La  France  Fire-Engine  Co.  v.  City  740;    Schuessler  v.  Town  of  Mason 

of  Syracuse,  33  Misc.  516,  68  N.  ,Y.  (Tex.  Civ.  App.)  28  S.  W.  42. 


580  POWERS.  §  259 

estoppel  in  favor  of  public  corporations  the  right  of  recovery 
where  that  corporation  has  received  the  benefits  of  the  transac- 
tion. The  soundness  of  the  principle  has  also  been  questioned  be- 
cause its  application,  some  courts  have  said,  tends  to  the  exer- 
cise of  unauthorized  powers  through  collusion  with  individuals.742 
There  are  some  decisions  to  the  contrary  and  still  other  decisions 
hold  that  where,  under  an  ultra  vires  contract,  the  public  cor- 
poration has  received  and  retained  goods  or  services  of  value, 
there  is  an  implied  obligation  on  its  part  independent  of  the  con- 
tract to  return  full  value  for  benefits  actually  received.7*3  As 

7*2  City    Council    of    Montgomery  duty    to    refund    it — not    from    any 

v.  Montgomery  &  W.  Plank-Road  Co.,  contract  entered  into  by  her  on  the 

31  Ala.  76;  City  of  Helena  v.  Turn-  subject,  but  from  the  general  obli- 

er,  36  Ark.  577;  Town  of  Monticello  gations   to   do  justice   which   binds 

v.   Cohn,  48   Ark.   254;    City   of   St.  all  persons,  whether  natural  or  ar- 

Louis  v.  Shields,  62   Mo.  247;    City  tificial.      If    the    city    obtain    other 

of  New  York  v.  Sonneborn,  113  N.  property  which   does  not  belong  to 

Y.  423;   City  of  Buffalo  v.  Balcom,  her,    it   is   her   duty   to   restore   it; 

134  N.  Y.  532;   Town  of  Bristol  v.  or,    if    used    by   her,    to   render   an 

Bristol  &  Warren  Water  Works,  19  equivalent  to  the  true  owner,  from 

R.  I.  413,  32  L.  R.  A.  740;   Scheuss-  the     like     general     obligation.      In 

ler   v.    Town   of  Mason    (Tex.   Civ.  these   cases   she    does   not,    in   fact, 

App.)  28  S.  W.  42.  make  any  promise   on   the   subject, 

743  Warner  v.  City  of  New  Or-  but  the  law  which  always  intends 
leans,  87  Fed.  829.  This  case  de-  justice  implies  one." 
cides  that  a  municipality  cannot,  Higgins  v.  City  of  San  Diego,  131 
when  it  has  enjoyed  the  benefits  of  Cal.  294,  45  Pac.  824,  63  Pac.  470 
a  contract  fairly  made,  set  up  as  a  (city  liable  on  a  quantum  vale- 
defense  the  lack  of  corporate  power  bat) ;  George  F.  Blake  Mfg.  Co.  v. 
to  make  it.  Sanitary  Dist.  of  Chicago,  77  111. 

City    Council    of    Montgomery    v.  App.    287;    City   of   Chicago   v.   Mc- 

Montgomery  Water  Works,  79   Ala.  Kechney,    91    111.    App.    442;    Helms 

233.      In    Argenti    v.    City    of    San  v.  State,  19  Ind.  App.  360,  48  N.  E. 

Francisco,  16  Cal.  255,  Chief  Justice  264    (town   liable   for  benefits   actu- 

Field   said:      "The   doctrine   of   im-  any  received). 

plied  municipal  liability  applies  in  Brown  v.  City  of  Atchison,  39 
cases  where  money  or  other  prop-  Kan.  37.  "Where  a  contract  is  en- 
erty  of  a  party  is  received  under  tered  into  in  good  faith  between  a 
such  circumstances  that  the  general  corporation,  public  or  private,  and 
law,  independent  of  express  con-  an  individual  person,  and  the  con- 
tract, imposes  the  obligation  upon  tract  is  void,  in  whole  or  in  part, 
the  city  to  do  justice  with  respect  because  of  a  want  of  power  on  the 
to  the  same.  If  the  city  obtain  the  part  of  the  corporation  to  make  it, 
money  of  another  by  mistake,  or  *  *  *  but  the  contract  is  not 
without  authority  of  law,  it  is  her  immoral,  inequitable  or  unjust,  and 


§  259 


POWER    TO    CONTRACT. 


581 


said  in  a  preceding  section  discussing  the  nature  and  powers  of 
a  public  corporation,  there  is  always  a  broad  distinction  to  be 
made  between  the  irregular  or  informal  exercise  of  a  power 
granted  and  the  doing  of  an  act  entirely  beyond  or  in  excess  of 
the  legal  powers  of  the  corporation.  The  application  of  the  doc- 
trine of  estoppel  may  depend  upon  this  distinction;  the  courts 
holding  the  corporation  estopped  in  the  former  case  while  deny- 
ing the  application  of  the  doctrine  where  the  act  is  ultra  vires  in 
the  proper  and  technical  sense.744  This  distinction  is  the  basis 
of  many  decisions  although  it  may  not  appear  as  a  reason.  Other 
cases  hold  the  corporation  liable  where  it  has  received  the  bene- 
fits of  the  transaction  because  of  that  equitable  rule  that  though 
they,  the  courts,  will  not  lend  their  aid  to  further  promote  or 
enforce  an  ultra  vires  transaction,  yet  they  will  not  permit  the 


the  contract  is  performed  in  whole 
or  in  part  by  and  on  the  part  of 
one  of  the  parties  and  tjie  other 
party  receives  benefits  by  reason  of 
such  performance  over  and  above 
any  equivalent  rendered  in  return, 
and  these  benefits  are  such  as  one 
party  may  lawfully  render  and  the 
other  party  lawfully  receive,  the 
party  receiving  such  benefits  will  be 
required  to  do  equity  towards  the 
other  party  by  either  rescinding 
the  contract  and  placing  the  other 
party  in  statu  quo,  or  by  account- 
ing to  the  other  party  for  all  bene- 
fits received,  for  which  no  equiv- 
alent has  been  rendered  in  return; 
and  all  this  should  be  done  as  near- 
ly in  accordance  with  the  terms  of 
the  contract  as  the  law  and  equity 
will  permit." 

Nicholasville  Water  Co.  v.  Board 
of  Councilmen  of  Nicholasville 
(Ky.)  38  S.  W.  430;  Municipal 
Sec.  Co.  v.  Baker  County,  39  Or. 
396;  Jewell  Nursery  Co.  v.  State, 

5  S.  D.  623,  59  N.  W.  1025;  London 

6  New   York   Land    Co.    v.    City   of 
Jellico,    103    Tenn.    320;     Brand    v. 
City    of    San    Antonio     (Tex.    Civ. 


App.)  37  S.  W.  340;  Earle  v.  Wal- 
lingford,  44  Vt.  367;  Monroe  Wa- 
ter-works Co.  v.  City  of  Monroe, 
110  Wis.  11,  85  N.  W.  685.  See, 
also,  authorities  cited  in  note  711, 
§  247,  supra. 

7*4  Rogers  v.  City  of  Burlington, 
70  U.  S.  (3  Wall.)  654;  Lake  Coun- 
ty v.  Graham,  130  U.  S.  674;  Town 
of  Searcy  v.  Yarnell,  47  Ark.  269; 
Treadway  v.  Schnauber,  1  Dak. 
236;  Maher  v.  City  of  Chicago,  38 
111.  266;  McPherson  v.  Foster,  43 
Iowa,  48;  Ryce  v.  City  of  Osage,  88 
Iowa,  558;  Wormstead  v.  City  of 
Lynn,  184  Mass.  425;  Black  v.  Com- 
mon Council  of  Detroit,  119  Mich. 
571;  State  v.  Murphy,  134  Mo.  548, 
3t  L.  R.  A.  369;  Schumm  v.  Sey- 
more,  24  N.  J.  Bq.  (9  C.  E.  Green) 
143;  Opening  of  Albany  St.,  6  Abb. 
Pr.  (N.  Y.)  273;  Moore  v.  City  of 
New  York,  73  N.  Y.  238;  Union 
Bank  of  Richmond  v.  Oxford 
Com'rs,  119  N.  C.  214,  34  L.  R.  A. 
487;  City  of  Cleveland,  v.  State 
Bank,  16  Ohio  St.  236;  Mathewson 
v.  Tripp,  14  R.  I.  587;  McTwiggan 
v.  Hunter,  19  R.  I.  265,  29  L.  R.  A. 
526. 


582  POWERS.  §  260 

party  who  has  obtained  a  benefit  or  advantage  thereby  to  inter- 
pose ultra  vires  as  a  defense.  In  other  words,  they  will  attempt 
to  do  substantial  justice  even  though  in  so  doing  they  may  in- 
directly enforce  an  ultra  vires  act  and  this  is  true  whether  the 
particular  court  is  one  maintaining  the  strict  rule  of  ultra  vires 
or  otherwise. 

§  260.    Contracts;  their  formal  execution. 

A  public  corporation  necessarily  acts  through  its  official  repre- 
sentatives; they,  in  conducting  the  affairs  and  business  of  the 
corporation,  expend  moneys  raised  by  public  taxation  and  deal 
with  property  and  interests  not  their  own.  Every  possible  safe- 
guard, therefore,  is  throwrn  around  its  property  and  interests 
likely  to  be  affected  or  wasted  by  a  misuse  or  abuse  of  powers 
vested  in  public  officials.  Nowhere  is  this  intent  of  the  law  more 
apparent  than  in  the  establishment  and  maintenance  of  rules  con- 
trolling and  regulating  the  manner  in  which  public  corporations, 
through  the  formal  execution  of  contracts,  may  be  bound.  As 
already  stated  the  authority  of  public  officials  is  special,  not  gen- 
eral; they  have  the  right  to  exercise  only  such  powers  and  per- 
form such  duties  as  are  expressly  given  and  the  principal  is  only 
held  under  such  conditions  and  circumstances.  A  public  cor- 
poration is  not  bound  by  acts  coming  within  the  apparent  scope 
•of  the  agent's  power  and  authority.  In  this  respect  the  rule  dif- 
fers widely  from  that  applying  to  an  agent  of  a  private  corpo- 
ration or  individual.7*5  We  may,  therefore,  find  in  charter  or 

7*5  The  Floyd  Acceptances,  74  U.  not  prevail  which  ordinarily  gov- 

S.  (7  Wall.)  666;  Peirce  v.  United  erns  in  relation  to  mere  private 

States,  1  Ct.  Cl.  270.  "By  the  law  of  agents.  As  to  the  latter,  the  prin- 

agency  at  the  common  law,  there  is  cipals  are  in  many  cases  bound, 

this  difference  between  individuals  where  they  have  not  authorized  the 

and  the  government;  the  former  are  declarations  and  representations  to 

liable  to  the  extent  of  the  power  be  made.  But  in  cases  of  public 

they  have  apparently  given  to  their  agents,  the  government  or  other 

agents  while  the  government  is  lia-  public  authority  is  not  bound,  unless 

ble  only  to  the  extent  of  the  power  it  manifestly  appears  that  the  agent 

it  has  actually  given  its  officers."  is  acting  within  the  scope  of  his 

Story,  Ag.  §  307a.  "In  respect  to  authority,  or  he  is  held  out  as  hav- 
the  acts  and  declarations  and  rep-  ing  authority  to  do  the  act,  or  is 
resentations  of  public  agents,  it  employed,  in  his  capacity  as  a  pub- 
would  seem  that  the  same  rule  does  lie  agent,  to  make  the  declaration 


260 


POWER    TO    CONTRACT. 


583 


statutory  provisions,  minute  details  as  to  the  manner  and  formali- 
ties attending  the  making  and  execution  of  a  contract.    The  pro- 


or  representation  for  the  govern- 
ment. Indeed,  this  rule  seems  indis- 
pensable in  order  to  guard  the  pub- 
lic against  losses  and  injuries  aris- 
ing from  the  fraud  or  mistake,  or 
rashness  and  indiscretion  of  their 
agents.  And  there  is  no  hardship 
in  requiring  from  private  persons 
dealing  with  public  officers  the  duty 
of  inquiry  as  to  their  real  or  ap- 
parent power  and  authority  to  bind 
the  government."  Sanitary  Dist.  of 
Chicago  v.  George  F.  Blake  Mfg. 
Co.,  179  111.  167,  affirming  77  111. 
App.  287.  Green  v.  Beeson,  31  Ind. 
7.  Grants  of  power  to  officials  con- 
strued strictly.  Rissing  v.  City  of 
Ft.  Wayne,  137  Ind.  427. 

Clark  v.  City  of  Des  Moines,  19 
Iowa,  199.  "The  general  principle 
of  law  is  well  known  and  definitely 
settled  that  the  agents,  officers  or 
even  city  council  of  a  municipal 
corporation  cannot  hind  the  cor- 
poration when  they  transcend  their 
lawful  and  legitimate  powers. 

"This  doctrine  rests  upon  this 
reasonable  ground:  The  body  cor- 
porate is  constituted  of  all  the  in- 
habitants within  the  corporate  lim- 
its. The  inhabitants  are  the  cor- 
porators. The  officers  of  the  cor- 
poration, including  the  legislative 
or  governing  body,  are  merely  the 
public  agents  of  the  corporators. 
Their  duties  and  their  powers  are 
prescribed  by  statute.  Every  one 
therefore,  may  know  the  nature  of 
these  duties  and  the  extent  of  these 
powers.  These  considerations  as 
well  as  the  dangerous  nature  of  the 
opposite  doctrine,  demonstrate  the 
reasonableness  and  necessity  of  the 
rule,  that  the  corporation  is  bound 
only  when  its  agents,  by  whom  from 


the  very  necessities  of  its  being  it 
must  act  if  it  acts  at  all,  keep  with- 
in the  limits  of  their  authority.  Not 
only  so,  but  such  a  corporation  may 
successfully  interpose  the  plea  of 
ultra  vires;  that  is,  set  up  as  a 
defense  its  own  want  of  power  un- 
der its  charter  or  constituent  stat- 
ute to  enter  into  a  given  contract 
or  to  do  a  given  act  in  violation  or 
excess  of  its  corporate  power  and 
authority.  The  cases  asserting  these 
principles  are  numerous  and  uni- 
form; some  of  the  more  important 
and  striking  ones  need  only  be  cited. 
City  of  Albany  v.  Cunliff,  2  N.  Y. 
(2  Comst.)  165,  reversing  2  Barb. 
(N.  Y.)  190;  Cuyler  v.  Village  of 
Rochester,  12  Wend.  (N.  Y.)  165; 
Hodges  v.  City  of  Buffalo  (4th  of 
July  appropriation),  2  Denio  (N.  Y.) 
110;  Halstead  v.  City  of  New  York, 
3  N.  Y.  (3  Comst.)  430;  Martin  v. 
City  of  Brooklyn,  1  Hill  (N.  Y.)  545; 
Boom  v.  City  of  Utica,  2  Barb.  (N. 
Y.)  104;  Cornell  v.  Town  of  Guil- 
ford,  1  Denio  (N.  Y.)  510;  Boy  land 
v.  City  of  New  York,  3  N.  Y.  Super. 
Ct.  (1  Sandf.)  27;  Dill  v.  Inhab- 
itants of  Wareham,  48  Mass.  (7 
Mete.)  438;  Vincent  v.  Inhabitants 
of  Nantucket,  66  Mass.  (12  Gush.) 
103;  Stetson  v.  Kempton,  13  Mass. 
272,  7  Am.  Dec.  145;  Parsons  v.  In- 
habitants of  Goshen,  28  Mass.  (11 
Pick.)  396;  Hood  v.  City  of  Lynn, 
83  Mass.  (1  Allen)  103;  Spaulding 
v.  City  of  Lowell,  40  Mass.  (23 
Pick.)  71;  Mitchell  v.  City  of  Rock- 
land,  41  Me.  363,  66  Am.  Dec.  252; 
Anthony  v.  Inhabitants  of  Adams, 
42  Mass.  (1  Mete.)  284;  Western 
College  of  Homeopathic  Medicine  v. 
City  of  Cleveland,  12  Ohio  St.  375; 
Tippecanoe  County  Com'rs  v.  Cox, 


584 


POWERS. 


§  260 


visions  are  held  mandatory,  not  directory  merely.746  Charter  or 
statutory  provisions  may  require  the  execution  or  approval  of 
contracts  on  behalf  of  public  corporations  by  certain  designated 
officials747  with  countersignatures,748  and  those  executed  by  oth- 


6  Ind.  403;  Inhabitants  of  Congres- 
sional Tp.  No.  11  v.  Weir,  9  Ind. 
224;  Smead  v.  Indianapolis,  P.  &  C. 
R.  Co.,  11  Ind.  104;  Brady  v.  City  of 
New  York,  20  N.  Y.  312;  Appleby  v. 
City  of  New  York,  15  How.  Pr.  (N. 
Y.)  428;  Estep  v.  Keokuk  County, 
18  Iowa,  199,  and  cases  cited  by, 
Cole,  J.;  Clark  v.  Polk  County,  19 
Iowa,  248." 

McGillivray  v.  District  Tp.  of 
Barton,  96  Iowa,  629;  Barker  v. 
Southern  Const.  Co.,  20  Ky.  L.  R. 
796,  47  S.  W.  608;  City  of  New  Or- 
leans v.  Tulane  Educational  Fund's 
Adm'rs,  46  La.  Ann.  861;  City  of 
Baltimore  v.  Eschbach,  18  Md.  282. 
"Although  a  private  agent  acting 
in  violation  of  specific  instructions, 
yet  within  the  scope  of  a  general 
authority,  may  bind  his  principal, 
the  rule  as  to  the  effect  of  the  like 
act  of  a  public  agent  is  otherwise. 
The  city  commissioner  upon  whose 
determination  to  grade  and  pave 
the  contract  was  made  was  the  pub- 
lic agent  of  a  municipal  corpora- 
tion, clothed  with  duties  and  powers 
specially  defined  and  limited  by  or- 
dinances bearing  the  character  and 
force  of  public  laws,  ignorance  of 
which  can  be  presumed  in  favor 
of  no  one  dealing  with  him  on  mat- 
ters thus  conditionally  within  his 
official  discretion.  For  this  reason, 
the  law  makes  a  distinction  between 
the  effect  of  the  acts  of  an  officer 
of  a  corporation  and  those  of  an 
agent  for  a  principal  in  common 
cases.  In  the  latter  the  extent  of 
authority  is  necessarily  known  only 
to  the  principal  and  the  agent,  while 


in  the  former,  it  is  a  matter  of  rec- 
ord in  the  books  of  the  corporation 
or  of  public  law." 

Vose  v.  Deane,  7  Mass.  280;  City 
of  St.  Louis  v.  Gorman,  29  Mo.  593; 
Huron  Waterworks  Co.  v.  City  of 
Huron,  7  S.  D.  9,  30  L.  R.  A.  848; 
City  of  Nashville  v.  Hagan,  68  Tenn. 
(9  Baxt.)  495.  "Even  where  a  gen- 
eral discretionary  power  is  conferred 
upon  a  public  officer,  his  authority 
is  not  to  be  deemed  an  unlimited 
one.  It  is  restricted  to  the  evident 
purposes  of  the  authority  and  to 
what  is  known  as  a  sound  and  legal 
discretion  excluding  all  arbitrary 
capricious  inquisitorial  and  opera- 
tive acts."  See,  also,  United  States 
v.  Kirby,  74  U.  S.  (7  Wall.)  486; 
United  States  v.  Doherty,  27  Fed. 
730;  Rose  v.  Stuyvesant,  8  Johns. 
(N.  Y.)  333;  and  In  re  Holbrook, 
99  N.  Y.  539. 

7*0  Zottman  v.  City  &  County  of 
San  Francisco,  20  Cal.  96;  Los  An- 
geles Gas  Co.  v.  Toberman,  61  Cal. 
199;  White  v.  City  of  New  Orleans, 
15  La.  Ann.  667.  But  one  contract- 
ing with  a  municipal  corporation 
should  not  suffer  by  an  accidental 
omission  from  the  specifications  of 
a  contract  on  the  part  of  the  corpora- 
tion. City  of  Baltimore  v.  Esch- 
bach, 18  Md.  276;  Butler  v.  City  of 
Charlestown,  73  Mass.  (7  Gray)  12; 
Beyer  v.  Town  of  Crandon,  98  Wis. 
306;  City  of  Austin  v.  McCall  (Tex. 
Civ.  App.)  67  S.  W.  192.  An  in- 
separable contract  bad  in  part  con- 
not  be  enforced. 

7*7  City  of  Superior  v.  Norton,  63 
Fed.  357;  City  of  Chicago  v.  Peck, 


§  260  POWER   TO    CONTRACT.  585 

ers,  or  not  in  the  manner  required  by  law,  will  be  invalid.749 
The  law  does  not  countenance  dishonesty  or  a  willful  avoidance 
of  an  obligation  entered  into  in  good  faith  and  following  sub- 
stantially the  conditions  required,750  but  it  does  require  a  strict 
observance  of  those  provisions  intended  to  protect  public  prop- 
erty from  private  plunder.751  Such  charter  or  statutory  provi- 
sions may  require  as  preliminary  to  the  execution  of  a  contract 
requiring  the  expenditure  of  moneys,  the  certification  of  the 
cost  or  necessity  of  a  proposed  work  of  public  improvement;752 
a  resolution  or  ordinance  of  the  council  or  legislative  body  au- 
thorizing the  execution  of  the  contract  with  its  attendant  ex- 
penditures;75* the  appropriation  by  the  council  or  the  possession 

196    111.    260;     State    v.    Helms,    136  ler    v.    Gosnell,    99    Ky.    380;    Attor- 

Ind.  122.     A  contract  informally  ex-  ney-General    v.    City    of    Detroit,    55 

ecuted  will  bind  the  township,  not  Mich.  181;   State  v.  Ramsey  County 

the  trustee  personally.    City  of  Bal-  Dist.   Ct.,  32   Minn.  181;   Eyermann 

timore  v.  City  of   New   Orleans,  45  v.    Provenchere,    15    Mo.    App.    256; 

La.    Ann.    526;     McKissick    v.    Mt.  City  of  New  York  v.  Kent,  5  N.  Y. 

Pleasant    Tp.,    48    Mo.    App.    416;  Supp.    567;    Moore   v.   City   of   New 

Morley    v.    Weakley,    86    Mo.    451;  York,   73   N.   Y.  238;    Swift  v.   City 

Wayne    County     Sup'rs    v.     Wayne  of  New  York,   83  N.   Y.   528;    Port- 

Circ.  Judge,  111  Mich.   33;    City  of  land  Lumbering  &  Mfg.  Co.  v.  City 

Philadelphia  v.  Gorgas,  180  Pa.  296;  of   East   Portland,   18   Or.   21,   6   L. 

Lee  v.  City  of  Racine,  64  Wis.  231.  R.  A.   290. 

7*8  City    of    Superior    v.    Norton  751  Westbrook  v.  Middlecoff,  99  111. 

(C.    C.    A.)     63    Fed.    357;    State    v.  App.  327. 

Ramsey  County  Dist.  Ct.,  32  Minn.  752  Smith    v.    City    of   New    York, 

181.     A  delay  in  countersigning  un-  5    Hun    (N.    Y.)     237;     Continental 

til    after    the    performance    of    the  Const.    Co.   v.   City   of   Altoona    (C. 

work    under   the   contract    held    an  C.  A.)  92  Fed.  822;  Butler  v.  City  of 

informal  irregularity.  Detroit,  43  Mich.  552;   City  of  Har- 

7*9  Bowditch  v.  Superintendent  of  risburg  v.  Shepler,  190  Pa.  374. 

Streets    of    Boston,    168    Mass.    239.  753  Carskaddon    v.    City    of    South 

The   indorsement  of  the  word   "ap-  Bend,  141  Ind.  596;    Town   of  Gos- 

proved"  upon  a  letter  regarding  the  port    v.    Pritchard,    156    Ind.    400. 

letting  of  a  contract  for  a  sewer  con-  Where  the  power  to  contract  is  dis- 

struction  held  not  the  "written  au-  cretionary  not  legislative,  tBe  pass- 

thority"   of  the  mayor  required   by  age  of  an  ordinance  is  immaterial, 

law.  Seibrecht  v.  City  of  New  Orleans, 

750  City    of    Goldsboro    v.    Moffett,  12  La.   Ann.  496;    Booth  v.  City  of 

49  Fed.  213;  Reeves  v.  Grottendick,  Shreveport,    29    La.    Ann.    581.      In- 

131   Ind.    107;    Town   of  Gosport   v.  action    of    the    council    regarded   as 

Pritchard,  156  Ind.  400;   City  of  In-  equivalent  to   consent, 

dianola  v.  Jones,  29  Iowa,  282;  Feh-  Goddard    v.    City   of   Lowell.    179 


586 


POWERS. 


260 


of  moneys  for  the  purpose  required  ;754  the  letting  of  the  contract 
only  upon  public  advertisement  for  a  designated  time,755  or  other 
provision  concerning  the  time  of  its  execution  ;756  the  making 
of  the  contract  in  duplicate;757  a  petition  by  a  required  number 
of  residents  or  property  owners  who  are  to  be  affected  by  the 
proposed  contract,758  or  the  approval  of  the  contract  by  the  elect- 
ors.759 Where  a  resolution  or  ordinance  is  necessary  to  the  ex- 
istence of  the  authority  to  contract,  charter  or  statutory  pro- 
visions which  may  require  its  special  record  are  not  unreason- 
able.760 The  object  of  all  such  requirements  is  the  protection  of 
the  public  corporation.  Under  certain  conditions,  the  violation 
of  charter  or  statutory  provisions  in  regard  to  the  time,  the  man- 
ner, or  the  mode  of  the  making  of  a  contract,  may  be  waived 
by  it,  and  then  the  other  party  to  the  contract  cannot  urge 
such  disregard  or  violation  of  law  for  the  purpose  of  defeating 
the  contract.761 


Mass.  496.  If  the  ordinance,  the 
basis  of  a  contract,  is  illegal,  it  de- 
stroys the  authority  for  the  contract 
and  none  exists. 

State  v.  Noyes,  25  Nev.  31,  56 
Pac.  946.  A  public  corporation  can- 
not make  a  contract  by  tentative 
purchases  made  during  the  pendency 
of  injunction  proceedings  relating  to 
the  subject-matter. 

754  City  of  Indianapolis  v.  Wann, 
144  Ind.  175,  42  N.  E.  901,  31  L. 
R.  A.  743;  City  of  Defiance  v.  Coun- 
cil of  Defiance,  23  Ohio  Circ.  R.  £-3; 
Assessors  of  Philadelphia  v.  Phila- 
delphia Com'rs,  3  Brewst.  (Pa.) 
333;  City  of  Harrisburg  v.  Shepler, 
190  Pa.  374,  42  Atl.  893. 

-55  Woodruff  v.  Berry,  40  Ark.  251; 
McEwen  v.  Gilker,  38  Ind.  233; 
Kretsch  v.  Helm,  45  Ind.  438;  Peo- 
ple v.  Croton  Aqueduct  Board,  26 
Barb.  (N.  Y.)  240;  Mitchell  v.  City 
of  Milwaukee,  18  v/is.  92. 

756  Burke  v.  Turney,  54  Cal.  486; 
People  v.  Village  of  Yonkers,  39 


Barb.  (N.  Y.)  266.  Construing  a 
provision  concerning  the  opening 
of  contractors'  proposals.  Cowen  v. 
Village  of  West  Troy,  43  Barb.  (N. 
Y.)  48;  Miller  v.  Pearce,  2  Gin.  R. 
(Ohio)  44;  Hall  v.  City  of  Chippe- 
wa  Falls,  47  Wis.  267. 

757  Saleno  v.  City  of  Neosho,  127 
Mo.  627,  30   S.  W.  190,  27   L.  R.  A. 
769.     Such  a  requirement  held,  how- 
ever, ineffectual  to  render  a  contract 
void  otherwise  good. 

758  Seward    v.    Town    of    Liberty, 
142  Ind.  551,  42  N.  E.  39;    Smith  v. 
City  of  Syracuse,   17  App.   Div.  63, 
44  N.  Y.  Supp.  852;    Lamed  v.  City 
of  Syracuse,  17  App.  Div.  19,  44  N. 
Y.  Supp.   857. 

759  Merrill    R.    &   Lighting    Co.    v. 
City  of  Merrill,  80  Wis.  358. 

760  Com.   v.  Marshall,  69  Pa.   328. 
The  failure  to  record,  however,  wag 
here    held    a   technical    defect   only 
which  the  legislature  might  remedy. 

761  in  re  Worcester  County   (C.  C. 
A.)   102  Fed.  808. 


§  261 


POWER    TO    CONTRACT. 


587 


§  261.    Presumption  of  legality. 

As  the  law  presumes  in  the  absence  of  circumstances  showing 
or  proving  the  contrary  that  the  authority  to  contract  exists, 
it  also  presumes  that  all  contracts  are  valid,  not  void  upon  their 
face  and  apparently  formally  executed  as  required  by  law.762 
A  contract,  having  a  legal  character  different  from  that  of  a 
negotiable  instrument  and  affording  at  all  times  a  reasonable  op- 
portunity for  investigation  and  contest  in  the  case  of  equities 
existing  between  the  parties,  acts  or  instruments  of  a  question- 
able legal  character,  are  regarded  not  as  acts  or  instruments  of 
a  higher  character  but  as  contracts  and  they  will  be  construed 
and  enforced  accordingly.763 


762  City  of  Lincoln  v.  Sun  Vapor 
Street-Light  Co.  (C.  C.  A.)  59  Fed. 
756.  "It  was  within  the  scope  of 
the  general  powers  of  the  city  to 
make  a  contract  for  lighting  its 
streets.  If  the  contract  was  void 
because  the  city  failed  to  make  the 
necessary  appropriation  for  it,  it 
was  so  because  the  city  itself  failed 
to  exercise  its  power  in  a  lawful 
manner;  and  this  was  an  affirm- 
ative defense.  The  contract,  signed 
by  the  proper  officers  of  the  city, 
and  sealed  with  the  corporate  seal, 
the  motion  passed  by  the  city  coun- 
cil approving  and  ratifying  it,  and 
the  fact  that  the  company  had  placed 
its  lamps  and  posts  in  the  city 
streets,  lighted  them,  and  received 
compensation  therefor  from  the  city, 
under  the  contract,  for  14  months, 
without  objection  to  its  validity,  are 
at  least  presumptive  evidence  that 
the  contract  was  made  in  a  lawful 
manner  and  the  powers  of  the  city 
properly  exercised.  A  contract  of  a 
corporation  formally  executed  by  its 
proper  officers  by  authority  of  its 
governing  board,  and  not  in  itself 
necessarily  beyond  the  scope  of  its 
powers,  will,  in  the  absence  of  proof 


to  the  contrary,  be  presumed  to  have 
been  made  by  lawful  authority. 
Acts  done  by  the  corporation  which 
presuppose  the  existence  of  other 
acts  to  make  them  legally  operative 
are  presumptive  proofs  of  the  lat- 
ter. Lincoln  Tp.  v.  Cambria  Iron 
Co.,  103  U.  S.  412;  Bank  of  U.  S. 
v.  Dandridge,  12  Wheat.  (U.  S.)  64; 
Omaha  Bridge  Cases,  10  U.  S.  App. 
98;  Union  Water  Co.  v.  Murphy's 
Flat  Fluming  Co.,  22  Cal.  620." 

Santa  Rosa  Lighting  Co.  v.  Wood- 
ward, 119  Cal.  30,  50  Pac.  1025;  City 
of  Baxter  Springs  v.  Baxter  Springs 
Light  &  Power  Co.,  64  Kan.  591,  68 
Pac.  63;  Henning  v.  Stengel,  23  Ky. 
L.  R.  1793,  66  S.  W.  41,  67  S.  W. 
64;  Barber  Asphalt  Pav.  Co.  v.  Go- 
greve,  41  La.  Ann.  251,  5  So.  848; 
Bryson  v.  Johnson  County,  100  Mo. 
76,  13  S.  W.  239. 

763  City  &  County  of  San  Francis- 
co v.  Beideman,  17  Cal.  443.  A 
provision  made  by  a  public  corpora- 
tion relative  to  its  debts  not  regard- 
ed even  as  a  contract.  Louisiana  & 
N.  W.  R.  Co.  v.  Police  Jury  of  Bien- 
ville  Parish,  48  La.  Ann.  331;  Beers 
v.  Dalles  City,  16  Or.  334,  18  Pac. 
835. 


588  POWERS.  §  262 

\ 

§  262.    Mode  of  contracting;  letting  to  the  lowest  bidder. 

It  is  to  the  advantage  of  a  public  corporation  equally  with  a 
person  or  a  private  corporation,  that  all  services  rendered  or  sup- 
plies furnished  should  be  upon  the  most  economical  basis  with 
due  regard  to  their  character  and  existing  conditions  or  circum- 
stances. In  this  respect,  at  least,  competition  may  have  a  most 
beneficial  effect  and  it  is  therefore  a  favorite  and  customary  re- 
quirement relative  to  contracts  of  all  public  corporations,  by  law, 
to  provide  that  public  notice  shall  be  given  by  advertisement,  or 
otherwise,764  of  services  or  supplies  needed,  inviting  bids ;  the  con- 


T64  Donnelly  v.  Marks,  47  Cal.  187; 
California  Imp.  Co.  v.  Moran,  128 
Cal.  373.  The  advertisement  in  or- 
der to  render  the  proceedings  valid 
should  be  printed  in  the  newspaper 
designated  by  legal  authority. 

City  of  Hartford  v.  Hartford  Elec. 
Light  Co.,  65  Conn.  324;  Dooley  v. 
Town  of  Sullivan,  112  Ind.  454; 
Wiles  v.  Hoss,  114  Ind.  371;  Nichol- 
asville  Water  Co.  v.  Board  of  Coun- 
cilmen  of  Nicholasville,  18  Ky.  L. 
R.  592,  36  S.  W.  549;  Davenport 
v.  Kleinschmidt,  6  Mont.  502;  Tay- 
lor v.  Common  Council  of  Lambert- 
ville,  43  N.  J.  Eq.  107;  Common 
Council  of  Trenton  v.  Shaw,  49  N. 
J.  Law,  638;  Board  of  Finance  of 
Jersey  City  v.  Jersey  City,  57  N.  J. 
Law,  452;  Tifft  v.  City  of  Buffalo, 
7  N.  Y.  Supp.  633;  Harlem  Gas- 
light Co.  v.  City  of  New  York,  33 
N.  Y.  309;  Swift  v.  City  of  New 
York,  83  N.  Y.  528.  A  contract  for 
the  removal  of  garbage  is  not  with- 
in the  provisions  of  §  91,  c.  335, 
Laws  of  1873,  Charter  of  New  York 
City,  which  requires  for  expenditures 
of  more  than  $1,000  the  letting  of 
a  contract,  after  advertisement,  to 
the  lowest  bidder. 

Mutual  Life  Ins.  Co.  v.  City  of 
New  York,  144  N.  Y.  494;  Public 
Ledger  Co.  v.  City  of  Memphis,  93 


Tenn.  77;  People  v.  Gleason,  121 
N.  Y.  631.  The  court  in  this  case 
held  in  passing  upon  a  charter  pro- 
vision requiring  such  contracts  sim- 
ilar to  that  suggested  in  the  text 
"This  provision  was  inserted  in  the 
charter  undoubtedly  to  prevent 
favoritism,  corruption,  extravagance 
and  improvidence  in  the  procure- 
ment of  work  and  supplies  for  the 
city  and  it  should  be  so  administered 
and  construed  as  fairly  and  reason- 
ably to  accomplish  this  purpose.  If 
contracts  for  work  and  supplies  can 
be  arbitrarily  let,  subject  to  no  in- 
quiry or  impeachment,  to  the  high- 
est instead  of  the  lowest  bidder  un- 
der such  a  provision  as  is  found  in 
this  charter  and  substantially  in 
the  charters  of  all  the  other  cities 
of  the  state,  then  the  provision  can 
always  be  nullified  and  will  serve 
no  useful  purpose."  See,  also,  Elec- 
tric Light  &  Power  Co.  v.  City  of 
San  Bernardino,  100  Cal.  348;  City 
Imp.  Co.  v.  Broderick,  125  Cal.  139; 
Dement  v.  Rokker,  126  111.  174; 
City  of  Baltimore  v.  Keyser,  72  Md. 
106;  Whitney  v.  Common  Council 
of  Hudson,  69  Mich.  189;  City  of 
Springfield  v.  Weaver,  137  Mo.  650; 
Seaboard  Nat.  Bank  v.  Woesten,  147 
Mo.  467,  48  L.  R.  A.  279;  Dickinson 
v.  City  of  Poughkeepsie,  75  N.  Y. 


§  262 


POWER    TO    CONTRACT. 


589 


tract  for  the  securing  of  which  to  be  let  to  the  lowest  or  the 
lowest  responsible  bidder  as  the  statute  may  provide.765  The 
authority  for  such  procedure  is  usually  found  in  some  explicit 
provision  of  statutory  or  charter  authority.760  These  require- 
ments as  a  rule  are  considered  not  directory  in  their  nature  but 
mandatory707  and  a  failure  to  comply  with  them  will  render  any 


65;  'Lyddy  v.  Long  Island  City,  104 
N.  Y.  218;  Frame  v.  Felix,  167  Pa. 
47,  27  L.  R.  A.  802. 

McQuillin,  Mun.  Ord.  §  553.  "On 
principle  it  would  seem  that  as  the 
primary  duty  of  the  public  officers 
is  to  secure  the  most  advantageous 
contract  possible  for  accomplishing 
the  work  under  their  direction,  any 
regulation  which  prevents  the  at- 
tainment of  this  end  is  invalid.  A 
law  demanding  competition  in  the 
letting  of  public  work  is  intended 
unquestionably  to  secure  unrestrict- 
ed competition  among  bidders  and 
hence,  where  the  effect  of  an  ordi- 
nance is  to  prevent  or  restrict  com- 
petition and  thus  increase  the  cost 
of  the  work  it  violates  manifestly 
such  law  and  is  void  as  are  all  pro- 
ceedings had  thereunder.  It  may 
be  further  observed  that,  according 
to  the  judicial  view  so  far  declared, 
all  such  ordinances  are  void  on  the 
constitutional  ground  of  discrimina- 
tion." 

765  Fitzgerald  v.  Walker,  55  Ark. 
148;  City  Imp.  Co.  v.  Broderick, 
125  Gal.  139,  57  Pac.  776;  City  of 
Hartford  v.  Hartford  Elec.  Light  Co., 
65  Conn.  324.  A  contract  made  for 
a  supply  of  electric  light  with  the 
only  electric  light  company  in  the 
city  not  held  void  because  not  se- 
cured after  advertisement  for  bids 
as  required  by  the  city  ordinance. 

State  v.  Barlow,  48  Mo.  17;  Sea- 
board Nat.  Bank  v.  Woesten,  147  Mo. 
467,  48  S.  W.  939,  48  L.  R.  A.  279; 
City  of  Marshall  v.  Rainey,  78  Mo. 


App.  416;  Moynahan  v.  Birkett,  81 
Hun,  395,  31  N.  Y.  Supp.  293;  Lili- 
enthal  v.  City  of  Yonkers,  6  App. 
Div.  138,  39  N.  Y.  Supp.  1037.  It 
is  not  necessary  that  the  question 
which  is  the  most  favorable  bid 
should  be  immediately  considered 
after  the  submission  of  proposals. 

People  v.  Coler,  35  App.  Div.  401, 
54  N.  Y.  Supp.  785.  The  opening 
of  bids  by  the  secretary  instead  of 
the  officer  designated  by  law  to  per- 
form such  duty  renders  the  pro- 
ceedings void. 

Baum  v.  Sweeny,  5  Wash.  712. 
A  contract  should  be  awarded  to 
the  lowest  qualified  bidder  though 
but  one  bid  made. 

766  Electric  Light  &  Power  Co.  v. 
City  of  San  Bernardino,  100  Gal. 
348;  Dewey  v.  City  of  Des  Moines, 
101  Iowa,  416,  70  N.  W.  605;  Ne- 
braska City  v.  Nebraska  City  Hy- 
draulic Gas  Light  &  Coke  Co.,  9 
Neb.  339.  The  words  "work"  or  "im- 
provement" as  used  in  the  statute  do 
not  apply  to  a  supply  of  gaslight. 
Jones  v.  City  of  Seattle,  19  Wash. 
669.  See,  also,  the  cases  cited  gen- 
erally under  this  section. 

re?  Worthington  v.  City  of  Bos- 
ton, 152  U.  S.  695.  A  city  is  bound 
by  a  contract  made  by  its  water 
board  without  first  advertising  for 
proposals  by  bidders  as  required  by 
an  ordinance  of  the  city  where  it 
was  made  by  special  authority  to 
the  city  council  and  mayor. 

Zottman  v.  City  &  County  of  San 
Francisco,  20  Cal.  96;  City  Imp. 


590 


POWERS. 


§  263 


contract  otherwise  good,  void  and  therefore  incapable  of  enforce- 
ment.768 Public  officials  cannot  in  this  respect  willfully  disre- 
gard the  plain  terms  of  the  law.  But  irregularities  or  informali- 
ties in  the  submission  of  bids  will  not  generally  invalidate  them 
where  there  has  been  a  substantial  compliance  with  the  pro- 
visions of  the  law  or  ordinance  authorizing  such  action.769 

§  263.    Acceptance  of  bids. 

That  legal  authority  for  the  contract  exists  after  the  public  ad- 
vertisement or  invitation  for  proposals  suggested  in  the  preceding 
section,  it  may  be  necessary  for  the  officials  in  charge  to  take 
official  action  upon  the  proposals  submitted  and  to  make  a  public 
record  of  such  action.770  It  is  usually  held  that,  without  the  exe- 


Co.  v.  Broderick,  125  Cal.  139;  Whit- 
ney v.  Common  Council  of  Hudson, 
69  Mich.  189;  St.  Louis  Quarry  & 
Const.  Co.  v.  Von  Versen,  81  Mo.  App. 
519;  People  v.  Buffalo  County  Com'rs, 
4  Neb.  150;  McDermott  v.  Street  & 
Water  Com'rs,  56  N.  J.  Law,  273; 
McDonald  v.  City  of  New  York,  68 
N.  Y.  23;  Harley  v.  Mapes  Reeves 
Const.  Co.,  33  Misc.  626,  68  N.  Y. 
Supp.  191;  Parr  v.  Village  of  Green- 
bush,  72  N.  Y.  463;  McCloud  v.  City 
of  Columbus,  54  Ohio  St.  439;  City 
of  Lancaster  v.  Miller,  58  Ohio  St. 
558;  Addis  v.  City  of  Pittsburgh, 
85  Pa.  379;  Home  Bldg.  &  Convey- 
ance Co.  v.  City  of  Roanoke,  91  Va. 
52,  20  S.  E.  895.  Such  a  charter 
requirement,  however,  does  not  pre- 
vent a  city  from  constructing  works 
of  public  improvement  under  direc- 
tion of  its  own  engineers  and  offi- 
cers. 

™s  Burchfield  v.  City  of  New  Or- 
leans, 42  La.  Ann.  235;  City  of  Bal- 
timore v.  Eschbach,  18  Md.  276; 
State  v.  Coad,  23  Mont.  131,  57  Pac. 
1092;  In  re  Rosenbaum,  53  Hun, 
478,  6  N.  Y.  Supp.  184;  Addis  v. 
City  of  Pittsburgh,  85  Pa.  379; 
Breath  v.  City  of  Galveston,  92  Tex. 


454,  49  S.  W.  575.  See,  also,  5  Am. 
St.  Rep.  442,  and  cases  cited  in  pre- 
ceding note. 

769  City    of   Baltimore    v.   Keyser, 
72  Md.  106,  19  Atl.  706.     An  award 
held  illegal  where  one  of  the  bids 
properly    filed   was    not    considered. 
In  re  Clamp,  33  Misc.  250,  68  N/Y. 
Supp.  345. 

770  pacific    Bridge    Co.    v.    Clacka- 
mas  County,  45  Fed.  217;   Safety  In- 
sulated Wire  &  Cable  Co.  v.  City  of 
Baltimore,  66  Fed.  140.    The  revoca- 
tion  of   an  acceptance   will  not   in- 
validate a  contract. 

Main  v.  City  of  Ft.  Smith,  49  Ark. 
480,  5  S.  W.  801.  The  acceptance 
may  be  indirectly  made  through  the 
appointment  of  a  superintendent  on 
part  of  the  city  to  supervise  the 
work. 

Edwards  v.  Berlin,  123  Cal.  544. 
The  provisions  of  a  statute  requir- 
ing the  record  of  official  action 
should  be  followed. 

Whitney  v.  Common  -Council  of 
Hudson,  69  Mich.  189,  37  N.  W.  184. 
In  this  case  no  bid  was  accepted. 
The  council  simply  voted  to  give  it 
to  a  certain  person  at  a  price  much 
in  excess  of  the  reasonable  value. 


S  264 


POWER    TO    CONTRACT. 


591 


cution  of  a  formal  contract  upon  proof  of  the  making  of  a  bid 
and  its  formal  acceptance  made  of  record,  an  enforceable  con- 
tract will  exist  between  such  public  corporation  and  the  one 
whose  bid  or  proposal  was  accepted.771 

§  264.    Rejection  of  bid. 

Public  officials,  where  authority  is  given  may  in  the  proposals 
or  advertisements  invite  bids  and  reserve  the  full  power  to 
reject  any  or  all  submitted.772  Where,  however,  the  statute  does 
not  give  them  this  discretionary  power,  this  reservation  in  an 
advertisement  calling  for  bids  or  proposals  will  be  considered 
nugatory.773 


The  court  said:  "I  cannot  see  how, 
under  all  the  circumstances,  it  can 
be  said  that  the  common  council 
were  acting  in  good  faith,  in  ac- 
cordance with  the  charter  and  ordi- 
nances. *  *  *  The  law  required 
them  to  let  the  contract  to  the  low- 
est bidder,  reserving  the  right  to  re- 
ject all  bids.  The  law  did  not  give 
them  the  right  to  award  the  con- 
tract to  a  person  who  had  not  bid 
and  passing  a  resolution  *  *  * 
did  not  raise  contract  relations  with 
such  third  person.  *  *  *  The 
record  does  not  show  that  there  was 
any  bidder  whose  bid  was  accepted; 
and  as  this  was  essential  under  the 
ordinance,  as  a  basis  for  a  valid  as- 
sessment, such  assessment  was  a 
nullity."  Morley  v.  Weakley,  86 
Mo.  451;  Fuller  v.  City  of  Scranton 
(Pa.)  4  Atl.  467;  Olympian-Tribune 
Pub.  Co.  v.  Bryne,  28  Wash.  79,  68 
Pac.  335. 

771  Safety  Insulated  Wire  &  Cable 
Co.  v.  City  of  Baltimore,  66  Fed. 
140;  Argenti  v.  City  of  San  Fran- 
cisco, 16  Cal.  255;  Ross  v.  Stack- 
house,  114  Ind.  200;  City  of  Ft. 
Madison  v.  Moore,  109  Iowa,  476; 
Stanley  v.  Chosen  Freeholders  of 
Passaic  County,  60  N.  J.  Law,  392. 


An  accepted  bidder  cannot  be  de- 
prived of  his  rights  through  a  rea- 
sonable delay  on  his  part  in  com- 
plying with  the  terms  of  the  bid. 

Terrell  v.  Strong,  14  Misc.  258,  35 
N.  Y.  Supp.  1000;  Lynch  v.  City  of 
New  York,  2  App.  Div.  213,  37  N. 
Y.  Supp.  798;  In  re  Protestant  Epis- 
copal Public  School,  58  Barb.  (N. 
Y.)  161.  But  see  the  following 
cases  to  the  contrary.  People's 
Pass.  R.  Co.  v.  Memphis  City  R. 
Co.,  77  U.  S.  (10  Wall.)  38;  Dunham 
v.  City  of  Boston,  94  Mass.  (12  Al- 
len) 375;  Edge  Moor  Bridge  Works 
v.  Bristol  County,  170  Mass.  528, 
49  N.  E.  918;  Water  Com'rs  of  Jer- 
sey City  v.  Brown,  32  N.  J.  Law, 
504;  State  v.  Noyes,  25  Nev.  31,  56 
Pac.  946.  So  held  where  certain 
modifications  were  made  to  the  orig- 
inal bid.  Erving  v.  City  of  New 
York,  131  N.  Y.  133. 

772  state  v.  City  of  New  Orleans, 
48  La.   Ann.   643;    Twiss  v.  City  of 
Port  Huron,  63  Mich.   528;   State  v. 
Rickards,  16  Mont.  145,  40  Pac.  210, 
28  L.  R.  A.  298;   Pennell  v.  City  of 
New  York,  17  App.  Div.   455,  45  N. 
Y.    Supp.    229;    Barton    v.    City    of 
Pittsburg,   4  Brewst.    (Pa.)   373. 

773  But  in   Keogh  v.   City  of  Wil- 


592 


POWERS. 


§  265 


§  265.    Notice. 

The  purpose  sought  to  be  effected  by  the  securing  of  bids 
under  competition  is  the  procurement  of  supplies  or  services  as 
cheaply  as  possible.  To  effect  this,  it  is  necessary  that  the  ad- 
vertisement or  invitation  for  submission  of  bids  should  be  made 
in  a  public  manner  and  for  such  a  length  of  time  that  all  desir- 
ing to  bid  intelligently  and  upon  a  reasonable  basis  may  have 
seasonable  opportunity  to  learn,  in  the  first  place,  the  needs  of 
the  corporation  and  the  fact  that  bids  are  desired,  and  in  the 
second  place  to  acquaint  themselves  with  the  character  and  na- 
ture of  the  necessary  services  or  supplies.774  The  time  required 
by  law  may  be,  therefore,  the  essence  of  the  proceeding,  and 
bids  let  after  the  running  of  a  proposal  or  an  advertisement 
published  for  a  time  less  than  that  required  by  law  may  be  set 
aside  and  such  contracts  considered  invalid  and  made  without 
legal  authority.775  The  notice  may  specify  a  time  and  a  place 


mington,  4  Del.  Ch.  491,  it  is  held 
that  a  bidder  submitting  a  bid  with 
such  a  provision  in  the  proposal 
assents  impliedly  to  the  exercise  of 
the  reserved  right.  Walker  v.  Peo- 
ple, 170  111.  410. 

774  Woodward  v.  Collett,  20  Ky. 
L.  R.  1066,  48  S.  Vv.  164;  City  of 
Augusta  v.  McKibben,  22  Ky.  L.  R. 
1224,  60  S.  W.  291;  Duffy  v.  City 
of  Saginaw,  106  Mich.  335,  64  N.  W. 
581;  Warren  v.  Barber  Asphalt  Pav. 
Co.,  115  Mo.  572,  22  S.  W.  490;  Gal- 
breath  v.  Newton,  45  Mo.  App.  312. 

TTS  Brock  v.  Luning,  89  Cal.  316, 
26  Pac.  972;  Maxwell  v.  Stanislaus 
County  Sup'rs,  53  Cal.  389;  Ellis  v. 
Witmer,  134  Cal.  249,  66  Pac.  301; 
Banaz  v.  Smith,  133  Cal.  102,  65 
Pac.  309;  Belser  v.  Allman,  134  Cal. 
399,  66  Pac.  492.  Affixing  of  the  time 
by  the  city  clerk  within  which  pro- 
posals should  be  made  immaterial. 

Harris  v.  Cook,  119  Cal.  454;  Wil- 
liams v.  Bergin,  129  Cal.  461.  In 
the  absence  of  a  record  to  the  con- 
trary, all  prior  proceedings  will  be 
presumed  legal. 


Benton  County  Com'rs  v.  Temple- 
ton,  51  Ind.  266;  Case  v.  Fowler,  65 
Ind.  29.  An  immaterial  mistake  in 
the  date  within  which  bids  would 
be  received,  held  immaterial  where 
the  notice  was  otherwise  sufficient 
as  to  the  time. 

Arnold  v.  City  of  Ft.  Dodge,  111 
Iowa,  152,  82  N.  W.  495.  Where  no 
evidence  appears  to  the  contrary,  it 
will  be  presumed  that  notice  was 
published  the  requisite  number  of 
days.  The  court  said  in  part:  "It 
is  urged  that  the  notice  inviting  bids 
for  the  work  is  not  such  as  the  law 
required.  *  *  *  It  is  admitted 
that  this  notice  was  published  in 
two  daily  papers  in  Fort  Dodge  but 
whether  for  the  requisite  ten  days 
or  not  does  not  certainly  appear. 
There  is  no  evidence  that  it  was  not 
so  published;  hence  the  presumption 
of  the  law  is  that  it  was  and  we 
must  so  hold."  Following  Jenney  v. 
City  of  Des  Moines,  103  Iowa,  347. 

City  of  Baltimore  v.  Johnson,  62 
Md.  225.  The  publication  of  a  no- 
tice in  one  newspaper  where  the 


§  265 


POWER    TO    CONTRACT. 


593 


where  the  manner  in  which,  and  the  officials  by  whom,  bids  or 
proposals  shall  be  opened.  A  trivial  failure  to  comply  with  such 
provisions  does  not  necessarily  invalidate  the  proceedings  at 
that  time  unless  it  appears  that  the  purpose  of  the  law  to  se- 
cure the  most  favorable  bid  and  without  collusion  or  bribery 
was  defeated.776 


ordinance  requires  three  is  insuffi- 
cient. Tifft  v.  City  of  Buffalo,  7  N. 
Y.  Supp.  633;  In  re  Pennie,  108  N. 
Y.  364,  15  N.  E.  611;  Tifft  v.  City  of 
Buffalo,  25  App.  Div.  376,  49  N.  Y. 
Supp.  489;  Bradley  v.  Van  Wyck, 
65  App.  Div.  293,  72  N.  Y.  Supp. 
1034;  In  re  Marsh,  83  N.  Y.  431; 
Albany  County  Com'rs  v.  Chaplin, 
5  Wyo.  74. 

776  Cass  Farm  Co.  v.  City  of  De- 
troit, 124  Mich.  433,  83  N.  W.  108. 
"Section  5,  c.  32,  of  the  revised  or- 
dinances of  the  city  provides  that 
the  'advertisement  for  bids  shall 
specify  a  time  and  place  when  and 
where  such  bids  shall  be  opened,  at 
which  time  and  place  such  bids 
shall  be  opened  by  the  board  of 
public  works  in  the  presence  of  such 
persons  as  shall  choose  to  attend.' 
The  advertisement  which  was  actu- 
ally published  reads  as  follows: 
'Sealed  proposals  will  be  received  at 
the  office  of  the  board  of  public 
works,  Detroit,  Michigan,  until 
Tuesday,  September  6,  1898,  at  10 
o'clock  A.  M.  local  time,  for  fur- 
nishing all  labor,  materials,'  etc. 
The  advertisement  contains  no  state- 
ment that  the  bids  will  be  opened 
at  any  time,  or  that  an  opportunity 
will  be  afforded  to  any  person  in- 
terested to  inspect  them.  It  is  con- 
tended that  this  requirement  of  the 
ordinance  is  jurisdictional  and  that 
the  proceedings  based  upon  the  ad- 
vertisement which  was  actually  pub- 
lished are  null  and  void.  Under 
the  statute  creating  the  board  of 

Abb.  Corp.— 38. 


public  works,  the  details  relating  to 
the  matters  of  public  improvement 
rest  with  the  board.  The  advertise- 
ment is  -subject  only  to  the  control 
of  the  board.  The  board  is  required 
to  advertise  for  proposals  and  enter 
into  a  contract  but  the  contract  does 
not  become  valid  or  binding  until 
approved  by  the  council.  The  board 
must  determine  what  the  specifica- 
tions must  be.  The  council  can  ap- 
prove or  reject  them  but  has  noth- 
ing to  do  with  making  them.  Be- 
fore a  contract  can  be  entered  into 
between  the  bidder  and  the  board  it 
must  be  approved  by  the  council. 
The  proofs  show  that  the  bids  or 
proposals  for  this  paving  were  opened 
in  the  office  of  the  board  of  public 
works  at  10  o'clocK  A.  M.,  local 
time,  on  September  6,  1898,  in  pub- 
lic and  in  the  presence  of  those  who 
tendered  bids;  that  being  the  time 
mentioned  as  the  hour  up  to  which 
bids  would  be  received.  The  proofs 
also  show  that  it  had  always  been 
the  custom  of  the  board  to  open 
bids  at  the  hour  named.  We  think 
from  this  showing  no  one  was  de- 
prived of  any  right  and  it  would 
be  a  most  technical  rule  to  hold 
that  the  whole  proceeding  must  fail, 
and  the  complainants  escape  pay- 
ment for  a  valuable  public  improve- 
ment by  which  they  are  benefited. 
Whether  there  was  a  compliance 
with  the  ordinance  or  not,  no  one 
being  harmed,  the  proceedings  will 
not  be  set  aside  for  that  reason." 
People  v.  Coler,  35  App.  Div.  401, 


594 


POWERS. 


§  206 


§  266.    Specifications  of  services  or  supplies  required. 

That  the  purpose  sought  through  proceedings  considered  in 
the  preceding  and  succeeding  sections  may  be  effected,  it  is 
necessary  that  prospective  bidders  shall  have  an  opportunity  to 
familiarize  themselves  with  the  character,  quality  and  extent 
of  the  services,  work  or  supplies  required.  To  enable  them  to 
act  intelligently  in  this  respect,  and  to  afford  a  uniform  standard 
as  a  basis  of  award,777  provisions  will  be  found  requiring  speci- 
fications covering  such  points,  either  as  a  part  of  the  public  ad- 
vertisement778 or  in  detail,  and  on  file  in  some  office  designated 
by  law  and  referred  to  in  the  public  advertisement  or  invita- 
tion for  bids.779  It  is  true  in  this  respect  as  in  others  suggested 


54  N.  Y.  Supp.  785;  Roach  v.  City 
of  Eugene,  23  Or.  376,  31  Pac.  825;- 
Gilfillan  v.  Grier,  145  Pa.  317. 

7T7  Fones  Hardware  Co.  v.  Erb,  54 
Ark.  645,  13  L.  R.  A.  353;  Ertle  v. 
Leary,  114  Cal.  238;  Stansbury  v. 
White,  121  Cal.  433,  53  Pac.  940; 
Dyer  v.  Erwin,  106  Ga.  845;  Jenney 
v.  City  of  Des  Moines,  103  Iowa, 
347;  Barber  Asphalt  Pav.  Co.  v. 
Gogreve,  41  La.  Ann.  251;  Packard 
v.  Hayes,  94  Md.  233,  51  Atl.  32. 
A  request  for  bids  insufficient  with- 
out specifications.  Attorney-General 
v.  City  of  Detroit,  26  Mich.  263; 
Detroit  Free  Press  Co.  v.  State  Au- 
ditors, 47  Mich.  135;  Holmes  v. 
Common  Council  of  Detroit,  120 
Mich.  226,  79  N.  W.  200,  45  L.  R. 
A.  121.  The  fact  that  specifications 
called  for  a  patented  article  the  sale 
of  which  was  controlled  by  one  deal- 
er did  not  destroy  the  competitive 
character  of  the  bidding. 

People  v.  Buffalo  County  Com'rs, 
4  Neb.  150;  Moreland  v.  City  of 
Passaic,  63  N.  J.  Law,  208,  42  Atl. 
1058;  Oakley  v.  Atlantic  City,  63 
N.  J.  Law,  127;  Delafield  v.  Village 
of  Westfield,  169  N.  Y.  582,  62  N. 
E.  1095,  affirming  41  App.  Div.  24, 
58  N.  Y.  Supp.  277;  Smith  v.  Syra- 


cuse Imp.  Co.,  161  N.  Y.  484,  re- 
versing 17  App.  Div.  63,  44  N.  Y. 
Supp.  852.  Proposals  for  bids  re- 
quiring a  certain  material  furnished 
by  one  firm  were  void  under  a  city 
charter  requiring  contracts  to  be 
let  to  the  lowest  bidder;  the  restric- 
tion as  to  material  resulting  in  a 
destruction  of  competition. 

Mazet  v.  City  of  Pittsburgh,  137 
Pa.  548,  20  Atl.  693;  Clayton  v.  Gal- 
veston  County,  20  Tex.  Civ.  App. 
591,  50  S.  W.  737.  Determining  the 
effect  of  a  fraudulent  change  in 
specifications  for  the  submission  of 
bids.  Ricketson  v.  City  of  Milwau- 
kee, 105  Wis.  591,  47  L.  R.  A.  685. 

778  Manly  Bldg.  Co.  v.  Newton,  114 
Ga.  245,  40  S.  E.  274;  Coggeshall  v. 
City  of  Des  Moines,  78  Iowa,  235, 
41  N.  W.  617,  42  N.  W.  650;  Wind- 
sor v.  City  of  Des  Moines,  101  Iowa, 
343,  70  N.  W.  214. 

779Bozarth  v.  McGillicuddy,  19 
Ind.  App.  26,  47  N.  E.  397;  City  of 
Elgin  v.  Joslyn,  136  111.  525.  26  N. 
E.  1090;  Sextou  r.  City  of  Chicago, 
107  111.  323;  Arnold  v.  City  of  Ft. 
Dodge,  111  Iowa,  152,  82  N.  W.  495; 
Dixon  v.  Greene  County,  76  Miss. 
794,  25  So.  665;  Smith  v.  City  of 
Syracuse,  17  App.  Div.  63,  44  N.  Y. 


§  266 


POWER    TO    CONTRACT. 


595 


in  preceding  sections  that  a  failure  to  comply  with  the  provisions 
of  the  law,  although  they  may  seem  trivial,  will  render  null  and 
void  any  contract  based  upon  bids  secured  under  such  circum- 
stances.780 Where  the  law  requires  the  advertisement  or  notice 
inviting  proposals  to  state  the  extent,  character  and  other  par- 
ticulars in  connection  with  the  work,  supplies  or  services  to  be 
supplied,  such  specifications  should  be  in  detail.781  The  authori- 


Supp.  852.  The  required  specifica- 
tion should  be  filed  a  reasonable 
time  before  the  time  fixed  for  re- 
ceiving bids  to  afford  a  substantial 
competition  between  bidders.  Knee- 
land  v.  Furlong,  20  Wis.  460. 

780  Van  Reipen  v.  Jersey  City,  58 
N.   J.   Law,    262;    Voght  v.   City   of 
Buffalo,  133  N.  Y.  463;  Reilly  v.  City 
of  New  York,  111  N.  Y.  473,  18  N. 
E.  6^3;  In  re  Merriam,  84  N.  Y.  596. 
Where  the  law  provides  that  the  ad- 
vertisement "shall  state  the  nature 
and  extent  as  near  as  possible  of  the 
works    required,"    precise    specifica- 
tions are  not  needed  so  long  as  the 
advertisement     complies     with     the 
provision  above  noted.    In  re  Ander- 
son,   109    N.    Y.    554,    17   N.    E.    209. 
A    random    "guess"    under    such    a 
provision    however,    cannot    be    the 
basis  of  an  award.    People  v.  Board 
of  Improvement,  43  N.  Y.  227.     The 
rule  applies  to  where  the  specifica- 
tions  have  been  changed   since  the 
original  proposal.     McCloud  v.  City 
of  Columbus,  54  Ohio  St.  439,  44  N. 
E.   95. 

781  California    Imp.     Co.    v.    Rey- 
nolds, 123  Cal.  88,  55  Pac.  802.    Con- 
ditions   in    specifications    that   tend 
to  limit  competitive  bidding  direct- 
ly or  indirectly  are  invalid. 

Windsor  v.  City  of  Des  Moines, 
101  Iowa.  343,  70  N.  W.  214;  Polk 
v.  McCartney,  104  Iowa,  567,  73  N. 
W.  1067.  In  this  case  the  court 
say:  "The  following  is  Sec.  3,  c. 


14,  acts  23d  Gen.  Assemb.  'Sec.  3. 
All  such  contracts  shall  be  made  by 
the  council  or  the  board  of  public 
works  when  such  board  shall  exist, 
in  the  name  of  the  city,  and  shall 
be  made  with  the  lowest  bidder  or 
bidders  upon  sealed  proposals  after 
public  notice  for  not  less  than  ten 
days  in  at  least  two  newspapers  of 
said  city,  which  notice  shall  state 
as  nearly  as  practicable  the  extent 
of  the  work,  the  kind  of  materials 
to  be  furnished,  when  the  work 
shall  be  done  and  at  what  time  the 
proposals  shall  be  acted  upon.' 
The  only  language  in  the  notice 
that  could  be  construed  as  an  at- 
tempt at  compliance  with  the  pre- 
scribed notice  is  the  following: 
'Brick  paving  consisting  of  two 
courses  of  brick  on  sand  foundation, 
with  top  filling  as  described  on 
pages  9  and  10  of  specifications.' 
In  another  part  of  the  notice  it  ap- 
pears that  plans  and  specifications 
are  on  file  in  the  office  of  the  board 
of  public  works.  The  provisions  of 
the  law  quoted  are  mandatory  and 
their  observance  is  a  condition 
precedent  to  the  right  of  the  coun- 
cil to  make  contracts  in  pursuance 
of  them.  The  notice  is  fatally  de- 
fective. The  requirements  as  to 
'when  the  work  shall  be  done'  and 
'what  time  the  proposals  shall  be 
acted  upon'  are  absolutely  disre- 
garded. There  is  not  a  reference  to 
either  in  the  notice,  and,  if  the  no- 


596  POWKKS.  §  266 

ties  are  about  evenly  divided  upon  the  proposition  that  the  fact 
of  a  patented  article  being  called  for  by  the  advertisement  or 
proposal  for  bids  destroys  the  competitive  feature  of  such  bid- 
ding and,  therefore,  precludes  a  contract  with  a  firm  or  a  pat- 
entee controlling  the  sale  of  a  patented  article.  The  tendency 
of  later  decisions  is  in  favor  of  the  rule  that  the  use  of  a  pat- 
ented article  does  not  prevent  the  competitive  conditions  re- 
quired by  statute  or  ordinance.782 

tice  could  be  aided  by  the  plans  and  v.  Gogreve,  41  La.  Ann.  251;  Shoen- 

speciflcations,  it  is  to  be  said  there  berg  v.  Field,  95  Mo.   App.  241,  68 

is  no   reference  to   either   of  them.  S.   W.   945;   Kean  v.  City  of  Eliza- 

The  same  is  true  as  to  the  'extent  beth,  35  N.  J.  Law,  351;   Matter  of 

of  the  work'   except   the   words   in  Eager,  46  N.  Y.  100. 
the  notice  'alleys  in  block  three  (3)         Dean    v.    Charlton,    23    Wis.    590. 

town    of    Fort    Des    Moines.'     The  The  argument   that  there   could  be 

plans  and  specifications  contain  no  no  competition   under  such  circum- 

reference  to   the  place   nor   the  ex-  stances  in  the  letting  of  a  contract, 

tent  of  the  work.     Even  an  inspec-  the  court  said:     "Seems  unanswer- 

tion   of  the   block  itself  would   not  able;    it   seems   to   me   therefore,   a 

disclose       it,        for    *    *     *     what  conclusion  derivable   from  the  very 

were,    and    what    were    not,    alleys,  nature  of  the  case  that  competition 

was  not  understood  by  the  council,  could  not  be  and  was  not  preserved 

See     Coggeshall     v.     City     of     Des  in  the  letting  of  this  contract  and 

Moines,    78    Iowa,    235;     Osburn    v.  that    it   was    therefore    beyond    the 

City    of    Lyons,   104    Iowa,    160,    73  scope  and  in  violation  of  the  spirit 

N.  W.  650."  of    the    charter."     Dean    v.    Borch- 

Jenney  v.  City  of  Des  Moines,  103  senius,   30   Wis.   236;    Kilvington  v. 

Iowa,  347;    City  of  Detroit  v.  Hos-  City  of  Superior,  83  Wis.  222,  18  L. 

mer,   79    Mich.   384,    44   N.   W.   622;  R.  A.  45. 

Wilkins  v.  City  of  Detroit,  46  Mich.  The  following  cases  hold  that 
120;  Tifft  v.  City  of  Buffalo,  164  N.  statutes  or  ordinances  providing 
Y.  605,  58  N.  E.  1093;  American  that  contracts  for  work,  services  or 
Clock  Co.  v.  Licking  County  Com'rs,  supplies  shall  be  advertised  and 
31  Ohio  St.  415;  State  v.  Commis-  given  to  the  lowest  bidder  do  not 
sioners  of  Public  Printing,  52  Ohio  prevent  contracts  with  firms  con- 
st. 81,  39  N.  E.  193;  Ricketson  v.  trolling  the  sale  of  patented  articles 
City  of  Milwaukee,  105  Wis.  591.  called  for  by  the  proposal  for  bids 

782  The  following  cases  hold   that  or    patented    articles:     Mulrein    v. 

this  condition  destroys  the  compet-  Kalloch,  61  Cal.  522;  Hobart  v.  City 

itive     features     of     such     bidding,  of    Detroit,    17    Mich.    246;    Motz   v. 

Nicolson    Pavement   Co.    v.    Painter,  City  of   Detroit,   18    Mich.   495;    At- 

35  Cal.  699;   California  Imp.  Co.  v.  torney   General   v.   City   of  Detroit, 

Reynolds,  123  Cal.  88,  55  Pac.  802;  26   Mich.    263;    Holmes   v.    Common 

Burgess  v.  City  of  Jefferson.  21  La,  Council    of   Detroit,    120    Mich.    226, 

Ann.  143;    Barber  Asphalt  Pav.  Co.  79    N.    W.    200,    45    L.    R.    A.    121. 


j   267                                  POWER    TO  CONTRACT.                                        597 

§  267     Discretionary  power  in  officers  to  reject  or  accept  bids. 

"The  power  may  vest  in  public  officials  to  arbitrarily  reject 
all  bids  submitted,  to  select  the  "lowest  bidder"  or  the  "low- 
est responsible  bidder."783  Such  discretion  does  not  exist  or- 

"There   is  no   pretense  of   fraud  or  although     the     words      are     broad 

that  the  contract,  as  made  was  not  enough  to  include  it.     It  constitutes 

a  provident  and  proper  contract  and  one  of   the  necessary  exceptions  to 

reasonable  and  right  in  all  its  terms  it." 

and  provisions,  so  that  the  form  of  Verdin  v.    City   of   St.   Louis,   131 

advertising  and  receiving  bids  can-  Mo.   26.     See   dissenting   opinion   of 

not  vitiate  it,  even  if  no  such  pro-  Burgess,    J.;    Barber   Asphalt    Pav. 

cedure  was  necessary.     The  general  Co.  v.  Hunt,  100  Mo.  22,  8  L.  R.  A. 

rule   is — and  in    this  case   does  not  110;    Schumm  v.  Seymour,  24  N.  J. 

form     an     exception — that     statutes  Eq.    (9   C.   E.    Green)    143;    City   of 

prescribing  forms  of  procedure  and  Newark  v.   Bonnell,   57    N.   J.   Law, 

providing  for  the  orderly  conduct  of  424;    Smith  v.  City  of  New  York,  5 

proceedings    by    public     officers     or  Hun   (N.  Y.)    237;    Harlem  Gaslight 

bodies,    are    only   obligatory    to    the  Co.   v.  City  of  New  York,  33  N.  Y. 

extent  and  in  cases   to  which  they  309;  Detv/iller  v.  City  of  New  York, 

are  by  their  terms  applicable.     The  46  How.  Pr.   (N.  Y.)   218;  People  v. 

legislature   cannot   be   presumed    to  Van   Nort,    65    Barb.    (N.   Y.)    331; 

have    intended    to    declare   that    no  Knowles  v.   City   of  New   York,   37 

power  should  be  exercised,  or  work  Misc.  195,  75  N.  Y.  Supp.  189;  Sils- 

done,   or  supplies  furnished,   unless  by   Mfg.   Co.   v.   City  of  Allentown, 

of  a  character  that  would  admit  of  153  Pa.  319. 

a  competitive   bid.     The     grant    of  783  Santa    Rosa    Lighting    Co.    v. 

power  was  for  public  purposes,  and  Woodward,  119  Cal.  30,  50  Pac.  1025; 

the    discretion    vested   in    the   com-  Vincent  v.   Ellis,  116   Iowa,  609,  88 

mon  council  was  in  the  interests  of  N.   W.  836.     The   letting  of  a  con- 

the  public;    and  neither  the  public  tract  to  "the  lowest  bidder"  implies 

nor  the  parties  to  be  benefited   by  competition  which  there  cannot  be 

local  improvements  can  be  deprived  in  case  of  but  one  bid.     The  court 

of  the  benefit  of  this  discretion,  or  say: 

the  right  to  the  best  or  most  im-  "The  statute  governing  the  man- 
proved  pavements,  because  full  ef-  ner  of  letting  contracts  for  the  con- 
feet  cannot  in  a  particular  case  be  struction  of  such  ditches  provides 
given  to  an  act  designed  for  anoth-  that  after  the  board  of  supervisors 
er  purpose,  to-wit,  to  regulate  the  have  divided  the  proposed  ditch  in- 
exercise  of  and  not  to  limit  the  pow-  to  suitable  sections,  the  auditor 
er.  *  *  *  If,  as  alleged,  there  shall  *  *  *  proceed  to  let  the 
could  be  no  competition  for  the  pav-  work  upon  each  separate  section  to 
ing  with  the  Nicolson  pavement,  the  lowest  bidder  who  shall  be  re- 
the  common  council  had,  neverthe-  quired  to  execute  a  bond,  with  suf- 
less,  the  power  to  cause  the  street  ficient  sureties,  or  deposit  cash  as 
to  be  paved  with  it;  and  it  is  sim-  security  for  the  performance  of  the 
ply  a  case  not  within  the  statute,  contract.  So  far  as  the  petition  re- 


5<;s                                             POWERS.  §  267 

dinarily  as  a  matter  of  right  on  the  part  of  public  officials  but 
is  given  them  through  the  express  terms  of  some  existing  law.784 

veals,  there  were  but  two  bidders  of  New  York,  113  N.  Y.  142:  Com. 
upon  the  work;  and  of  these,  ac-  v.  Mitchell,  82  Pa.  343.  An  act  re- 
cording to  the  allegation,  the  bid  of  quiring  a  municipal  contract  to  be 
the  Canal  Construction  Company  let  "to  the  highest  responsible  bid- 
was  in  fact  a  bid  for  the  excavation  der"  imposes  on  the  city  authori- 
of  the  entire  ditch,  instead  of  an  ties  not  only  the  ministerial  duty 
independent  proposition  upon  each  to  ascertain  the  lowest  bid  but  the 
of  the  several  sections  as  it  is  pecuniary  responsibility  of  the  bid- 
claimed  the  law  requires.  Here,  der  and  his  sureties  and  also  con- 
then  was  the  situation  with  which  fers  a  discretionary  power  on  the 
the  auditor  had  to  deal.  If  both  public  officers  to  grant  the  work  to 
bids  were  to  be  considered  and  such  a  one  as  they  considered 
treated  as  being  for  the  entire  would  perform  the  contract  best  for 
work,  th«n  the  Canal  Construction  the  lowest  amount. 
Company  bid  involved  the  smaller  American  Pavement  Co.  v.  Wag- 
aggregate  expense  and  was  'lowest'  ner,  139  Pa.  623.  Public  officials 
within  the  ordinary  meaning  of  acting  under  such  power  are  not 
that  word.  If  both  bids  were  to  be  personally  liable  to  one  who  may 
considered  and  treated  as  being  be  the  lowest  bidder  but  fails  to  be 
made  upon  each  of  the  several  sec-  awarded  the  contract.  See,  also,  as 
'  iors  independently,  then  each  oi  the  holding  this  last  proposition  the 
bidders  was  entitled  to  be  awarded  case  of  East  River  Gas  Light  Co.  v. 
a  part  of  the  work.  If,  however,  Donnelly,  93  N.  Y.  557,  where  it 
the  bid  of  the  Construction  Com-  is  held  that  a  common  council  acts 
pany  was,  as  alleged,  a  bid  for  the  judicially  in  determining  which  of 
work  as  a  whole,  and  therefore  not  several  bodies  is  to  be  accepted 
entitled  to  consideration,  then  and  that  the  members  thereof  can- 
neither  was  entitled  to  the  award,  not  be  made  liable  in  a  civil  action 
even  though  plaintiff's  bid  was  in  brought  by  a  party  who  claimed 
due  form.  A  letting  to  the  'low-  that  he  was  the  lowest  responsible 
est'  bidder  implies  the  existence  of  bidder  to  recover  damages  because 
competition,  and  if  one  of  two  bids  his  bid  was  not  accepted.  The 
be  fatally  informal,  then  the  other,  court  applied  the  rule  of  the  ab- 
standing  alone,  is  without  competi-  solute  immunity  of  judicial  officers 
tion  and  may  rightfully  be  rejected,  from  responsibility  in  a  civil  or 
even  though  unobjectionable  in  criminal  prosecution  for  their  ac- 
form  and  substance."  tion,  however  erroneous  or  even 

Madison  v.  Harbor  Board  of  Bal-  malicious. 

timore  City,  76  Md.  395;   Palmer  v.  Interstate  Vitrified  Brick  Pa  v  Co. 

Inhabitants   of  Haverhill,    98    Mass.  v.  Philadelphia  Mack   Pav.  Co.,  164 

487;    Elliot  v.   City  of  Minneapolis,  Pa.    477.      An   act  giving   to    public 

59   Minn.   Ill;    Schefbauer   v.   Com-  officials  the  right  to   award  a   con- 

mittee  of  Kearney  Tp.,  57  N.  J.  Law,  tract  to  the  "lowest  responsible  bid- 

E88;   People  v.  King  County  Sup'rs,  der"  vests  them  with  discretionary 

42  Hun   (N.  Y.)   458;  Walsh  v.  City  powers;    the   word    "responsible"    it 


§   267                                  POWER    TO  CONTRACT.                                        599 

Otherwise  the  right  to  select  the  lowest  responsible  bidder  might 
render  nugatory  the  statute  requiring  competitive  bids.  Offi- 
cials vested  with  the  power,  however,  usually  must  award  the 
contract  to  the  person  submitting  the  lowest  bid  in  response 
to  the  invitation  or  proposal  for  the  submission  of  bids.785 

was  held  in  this  case  included  a  Vincent  v.  Ellis,  116  Iowa,  609, 
determination  not  only  of  the  finan-  88  N.  W.  836.  The  determination  of 
cial  condition  of  the  "bidder  but  his  the  lowest  bidder  includes  the  con- 
general  capabilities  including  judg-  sideration  of  the  character  of  the 
ment  and  skill.  bid  and  the  sureties  offered  and  is 

78*  Colorado  Pav.  Co.  v.  Murphy  a  judicial  and  discretionary  act. 
(C.  C.  A.)  78  Fed.  28;  37  L.  R.  A.  State  v.  Shawnee  County  Com'rs, 
630.  Such  a  provision  not  for  the  57  Kan.  267,  45  Pac.  616;  Neff  v. 
benefit  of  bidders  but  for  the  ad-  Covington  Stone  &  Sand  Co.,  21  Ky. 
vantage  and  protection  of  taxpay-  L.  R.  1454,  55  S.  W.  697;  Barfield 
ers  and  property  holders.  v.  Gleason,  111  Ky.  491,  63  S.  W. 
Riehl  v.  City  of  San  Jose,  101  964;  Talbot  Pav.  Co.  v.  City  of  De- 
Cal.  442,  35  Pac.  1013;  Girvin  v.  troit,  109  Mich.  657,  67  N.  W.  979. 
Simon,  116  Cal.  604;  Gibson  v.  A  "lowest  bidder"  whose  bid  has 
Owens,  115  Mo.  258,  21  S.  W.  1107.  been  rejected  through  the  exercise 
Under  such  authority,  in  case  of  of  such  a  discretion  has  no  right 
failure  of  the  lowest  bidder  to  of  action  against  a  city  for  his  pros- 
qualify,  the  contract  may  be  let  to  pective  profits  under  the  contract, 
the  next  highest  bidder  without  re-  Seaboard  Nat.  Bank  v.  Woesten, 
advertising.  147  Mo.  467,  48  S.  W.  939,  48  L.  R. 
People  v.  Buffalo  County  Com'rs,  A.  279;  State  v.  Douglas  County 
4  Neb.  150;  Schefbauer  v.  Commit-  Com'rs,  11  Neb.  484;  Shaw  v.  City 
tee  of  Kearney  Tp.,  57  N.  J.  Law,  of  Trenton,  49  N.  J.  Law,  339,  12 
588,  31  Atl.  454;  People  v.  Willis,  Atl.  902;  Booth  v.  City  of  Bayonne, 
6  App.  Div.  231,  39  N.  Y.  Supp.  987;  56  N.  J.  Law,  268,  28  Atl.  381. 
Gutta  Percha  Co.  v.  Stokely,  11  Fraud  cannot  be  predicated  upon 
Phila.  (Pa.)  219.  the  fact  that  the  lowest  bid  is  larg- 
ess Rice  v.  Trustees  of  Town  of  er  than  the  estimated  cost  of  the 
Hay  wards,  107  Cal.  398,  40  Pac.  551;  improvement  made  by  the  city  of- 
Carter  v.  Kalloch,  56  Cal.  335;  San-  ficials.  Kimball  v.  Hewitt,  2  N.  Y. 
ta  Cruz  Rock  Pavement  Co.  v.  Brod-  Supp.  697;  In  re  Delaware  &  H. 
erick,  113  Cal.  628;  Dawson  v.  Canal  Co.,  8  N.  Y.  Supp.  352.  Un- 
Woodhams,  11  Colo.  App.  394,  53  der  such  provision,  city  officials 
Pac.  238;  Dement  v.  Rokker,  126  cannot  permit  a  bidder  to  with- 
111.  174.  A  "lowest  bid"  being  such  draw  his  bid  even  before  they  are 
through  the  collusion  of  the  one  opened. 

making  the  same   with  others   who  People  v.  Kings  County,  42  Hun. 

purposely    refrain    from    bidding    is  (N.    Y.)     458.      "It    does    not    seem 

not    a    "letting   to    the   lowest    bid-  possible  that  the  legislature  intend- 

der"    within    the    meaning    of    the  ed  to  take  from     *    *    *     the  board 

statutes  or  the  constitution.  of   supervisors   all   discretion   as  to 


600 


POWERS. 


268 


§  268.    The  same  subject  continued. 

As  stated  in  the  preceding  section,  the  law  may  give  to  public 
officials  the  power  to  reject  arbitrarily  all  bids  unless  some  one 


the  making  of  contracts  for  the  peo- 
ple of  the  county.  Suppose,  from 
accident  or  design,  it  should  hap- 
pen that  there  was  but  one  bid  and 
that  was  for  grossly  exorbitant 
prices;  could  it  be  claimed  that  the 
board  of  supervisors  must  never- 
theless award  the  contract?  Such 
a  construction  would  turn  a  statute 
intended  for  the  protection  of  the 
public  into  an  instrument  of  fraud 
and  robbery." 

Dickinson  v.  City  of  Poughkeep- 
sie,  75  N.  Y.  65;  Davenport  v. 
Walker,  57  App.  Div.  221,  68  N.  Y. 
Supp.  161;  People  v.  Gleason,  121 
N.  Y.  631.  "The  claim  is  made  on 
behalf  of  the  relator  that  there  is 
a  conclusive  presumption  that  the 
common  council  adjudicated  that 
his  bid  was  that  of  the  lowest  re- 
sponsible bidder.  If  this  claim  be 
well  founded,  then  provisions  like 
that  above  quoted  from  the  city 
charter  are  of  little  use,  and  they 
can  always  be  effectually  disregard- 
ed and  violated.  It  is  true  that  the 
common  council,  where  there  are 
several  bidders,  have  jurisdiction  to 
determine  who  is  the  lowest  re- 
sponsible bidder.  But  in  order  to 
give  its  action  any  legal  effect,  it 
must  exercise  its  jurisdiction  and 
make  a  determination  based  upon 
some  facts.  If  it  refuses  to  ac- 
cept the  lowest  bid  for  work  or 
supplies,  there  must  be  some  facts 
tending  to  show  that  it  is  not  that 
of  a  responsible  bidder,  or  there 
must  be,  at  least,  some  pretense  to 
that  effect.  An  arbitrary  deter- 
mination by  such  a  body  to  accept 
the  highest  bid  without  any  facts 


justifying  it,  cannot  have  the  effect 
of  a  judicial  determination,  and 
must  be  denounced  as  a  palpable 
violation  of  law." 

State  v.  Yeatman,  22  Ohio  St.  546; 
State  v.  Shelby  County  Com'rs,  36 
Ohio  St.  326.  Under  the  Ohio  law 
upon  the  failure  of  the  lowest  bid- 
der to  properly  qualify,  the  county 
officials  cannot  be  compelled  by 
mandamus  to  award  the  contract  to 
the  next  highest  bidder. 

State  v.  Marion  County  Com'rs, 
39  Ohio  St.  188;  Shannon  v.  City  of 
Portland,  38  Or.  382,  62  Pac.  50; 
Mazet  v.  City  of  Pittsburgh,  137  Pa. 
548,  20  Atl.  693;  Addis  v.  City  of 
Pittsburgh,  85  Pa.  379;  Frame  v. 
Felix,  167  Pa.  47,  27  L.  R.  A.  802; 
Times  Pub.  Co.  v.  City  of  Everett, 
9  Wash.  518;  Goss  v.  State  Capitol 
Commission,  11  Wash.  474,  39  Pac. 
972;  Cook  v.  City  of  Racine,  49 
Wis.  243;  Mueller  v.  Eau  Claire 
County,  108  Wis.  304,  84  N.  W.  430. 

A  combination  of  bidders  for  the 
purpose  of  maintaining  prices  will 
vitiate  a  contract  let  to  one  of  their 
number.  See  McMullen  v.  Hoffman, 
174  U.  S.  639.  "Upon  general  prin- 
ciples it  must  be  apparent  that  bid- 
dings for  contracts  for  public  works 
cannot  be  surrounded  with  too 
many  precautions  for  the  purpose 
of  obtaining  perfectly  fair  and  bona 
fide  bids.  Such  precautions  are  ab- 
solutely necessary  in  order  to  pre- 
vent the  successful  perpetration  of 
fraud  in  the  way  of  combinations 
among  those  who  are  ostensible 
rivals  but  who  in  truth  are  secretly 
banded  together  for  the  purpose  of 
obtaining  contracts  from  public 


§  268 


POWER    TO    CONTRACT. 


6(1 


of  them  is  satisfactory,  to  select  the  lowest  bidder  or  the  lowest 
responsible  bidder.     The  duties  imposed  upon  officials  when  they 


bodies  such  as  municipal  and  other 
corporations  at  a  higher  figure  than 
they  otherwise  would.  Just  how  the 
fraud  is  to  be  successfully  worked 
out  by  the  combination,  it  is  not 
necessary  to  show.  It  is  enough  to 
see  what  the  natural  tendency  is. 
Public  policy  requires  that  officers 
of  such  corporations,  acting  in  the 
interest  of  others,  and  not  using 
the  sharp  eye  of  a  practical  man 
engaged  in  the  conduct  of  his  own 
business  and  not  controlled  by  the 
powerful  motive  of  self-interest, 
should,  so  far  as  possible  and  for 
the  sake  of  the  public  whom  they 
represent,  be  protected  from  the 
dangers  arising  out  of  a  concealed 
combination  and  from  fictitious 
bids.  To  hold  contracts  like  the 
one  involved  in  this  case  illegal  is 
not  to  create  any  new  rule  of  law 
for  the  purpose  of  affording  the  pro- 
tection spoken  of.  It  is  but  enforc- 
ing an  old  rule,  and  applying  it  to 
such  facts  as  exist  in  this  case  be- 
cause it  naturally  fits  them.  Its 
enforcement  here  is  to  but  carry 
into  effect  the  public  policy  upon 
which  the  rule  itself  is  founded." 
Dement  v.  Rokker,  126  111.  174; 
Jennings  County  Com'rs  v.  Ver- 
barg,  63  Ind.  107;  Woodward  v.  Col- 
lett,  20  Ky.  L.  R.  1066,  48  S.  W. 
164;  People  v.  Stephens,  71  N.  Y. 
527;  City  of  Wichita  Falls  v.  Skeen, 
18  Tex.  Civ.  App.  632;  Ray  v. 
Mackin,  100  111.  246.  See,  also, 
Spelling.  Trusts  &  Monopolies,  §  74. 
"It  is  often  necessary,  in  the  ad- 
ministration of  Federal  and  State, 
as  well  as  county  and  city,  govern- 
ments, to  have  constructed  public 
works  and  improvements  of  various 
kinds  and  secure  other  unofficial 


services.  It  is  just  to  all  the  citi- 
zens that  they  should  have  a  fair 
and  equal  opportunity  to  secure 
contracts  for  the  same,  and  expedi- 
ent that  the  public,  considered  as 
an  entirety,  should  have  the  benefit 
of  competition  in  securing  the  per- 
formance of  public  work,  furnish- 
ing supplies,  at  sale  of  public  prop- 
erty, etc.  No  more  effective  meth- 
od of  attaining  these  ends  can  be 
devised  than  by  opening  such  mat- 
ters to  competitive  bids  upon  public 
notice.  This  being  thq  case,  it  is 
self-evident  that  any  secret  com- 
bination, whatever  its  form,  the  ef- 
fect of  which  is  to  abate  honest  riv- 
alry or  prevent  fair  competition, 
should  be  condemned  as  violative 
of  public  policy,  and  that  no  one 
should  be  allowed  to  predicate  an 
enforceable  right  upon  such  an 
agreement."  Citing  Gibbs  v.  Smith, 
115  Mass.  592;  Hannah  v.  Fife,  27 
Mich.  172;  Boyle  v.  Adams,  50 
Minn.  255,  52  N.  W.  860,  17  L.  R. 
A.  96;  Atcheson  v.  Mallon,  43  N.  Y. 
147;  Woodworth  v.  Bennett,  43  N. 
Y.  273;  King  v.  Winants,  71  N.  C. 
469;  James  v.  Fulcord,  5  Tex.  513: 
Allen  v.  Stephanus,  18  Tex.  658; 
Carrington  v.  Caller,  2  Stew.  (Ala.) 
175;  Woodruff  v.  Berry,  40  Ark. 
251;  Hunter  v.  Pfeiffer,  108  Ind. 
197.  "Upon  all  such  partnerships 
the  law  sets  the  seal  of  its  con- 
demnation. Persons  who  combine 
in  schemes  of  the  character  dis- 
closed can  secure  no  aid  from  the 
courts  in  coercing  a  division  of 
profits  anticipated  or  accrued.  The 
statute  under  which  free  turnpikes 
or  gravel  roads  are  constructed,  re- 
quires contracts  for  their  construc- 
tion to  be  let  to  the  lowest  and  best 


602  POWERS.  §  268 

are  required  by  the  provisions  of  the  law  to  let  the  contract 
"to  the  lowest  bidder"  are  ministerial  or  clerical  in  their  char- 
acter,786 and  ordinarily  they  can  be  compelled  to  perform  them 
as  in  the  case  of  the  nonperformance  of  other  duties  of  a  sim- 
ilar nature  upon  their  failure  or  neglect.787  Where,  however, 
the  power  is  given  them  to  arbitrarily  reject  all  bids  or  award 
the  contract  to  the  lowest  responsible  bidder,  the  duties  imposed 
are  not  simply  ministerial  but  discretionary  and  deliberative.788 
The  courts  will  not,  therefore,  interfere  with  or  restrain  the  action 
of  the  public  authorities  from  letting  contracts  to  one  who  is  not 
the  lowest  bidder  unless  it  appears  that  they  have  acted  corrupt- 
ly or  not  in  good  faith.789  As  stated  repeatedly  in  cases  pass- 
bidder,  and  that  all  bids  sball  be  the  contract  with  one  who  is  not  the 
sealed  when  filed.  If  the  courts  lowest  responsible  bidder. 
should  lend  any  countenance  to  Attorney  General  v.  City  of  De- 
such  a  contract  of  partnership  as  troit,  26  Mich.  263;  State  v.  Mc- 
that  disclosed  in  the  complaint,  in  Grath,  91  Mo.  3,86,  3  S.  W.  84'3;  Mc- 
either  aspect  in  which  it  is  pre-  Govern  v.  Board  of  Public  Works 
sented,  the  effect  would  be  to  afford  of  Trenton,  57  N.  J.  Law,  580,  31 
facilities  for  bidders  to  enter  into  Atl.  613.  Such  discretion  must  be 
secret  agreements  and  combinations  exercised,  however,  in  good  faith, 
with  each  other,  and  thus  enable  McDermott  v.  Street  &  Water 
them  to  defeat  the  plain  purpose  Com'rs  of  Jersey  City,  56  N.  J.  Law, 
of  the  legislature  in  requiring  such  273;  Terrell  v.  Strong,  14  Misc. 
contracts  to  be  let  to  the  lowest  and  258,  35  N.  Y.  Supp.  1000;  People  v. 
best  bidder."  Mooney,  4  App.  Div.  557,  38  N.  Y. 

"6  Kelly  v.  City  of  Chicago,  62  Supp.  495;  Gilmore  v.  City  of  Utica, 
111.  279;  State  v.  Ohio  Penitentiary,  131  N.  Y.  26;  Reuting  v.  City  of 
5  Ohio  St.  234.  Titusville,  175  Pa.  512. 

TST  Crabtree  v.  Gibson,  78  Ga.  230,  TSQ  Colorado  Pav.  Co.  v.  Murphy 
3  S.  E.  10.  Where  the  work  has  (C.  C.  A.)  78  Fed.  28,  37  L.  R.  A. 
been  performed,  however,  by  one  630;  Riehl  v.  City  of  San  Jose,  101 
who  is  not  the  lowest  bidder,  the  Cal.  442,  35  Pac.  1013;  Stanley-Tay- 
sole  remedy  of  a  taxpayer  is  to  pre-  lor  Co.  v.  City  &  County  of  San 
vent  the  contractor  receiving  more  Francisco  Sup'rs,  135  Cal.  486,  67 
than  the  amount  of  the  lowest  bid.  Pac.  783;  Kelly  v.  City  of  Chicago, 

"a  See,  also,  authorities  cited  in  62  111.  279;  People  v.  Kent.  160  111. 
the  next  note.  Johnson  v.  Sanitary  655;  Madison  v.  Harbor  Board  of 
Dist.  of  Chicago,  163  111.  285;  Gun-  Baltimore  City,  76  Md.  395,  25  Atl. 
ning  Gravel  &  Pav.  Co.  v.  City  of  337;  Connors  v.  Stone,  177  Mass. 
New  Orleans,  45  La.  Ann.  911,  13  424,  59  N.  E.  71;  Clapton  v.  Taylor, 
So.  182;  Oliver  v.  Gale,  182  Mass.  49  Mo.  App.  117;  Anderson  v.  Pub- 
39.  65  N.  E.  415.  But  public  au-  lie  Schools  of  St.  Louis,  122  Mo. 


6  268 


POWER    TO    CONTRACT. 


603 


ing  upon  this  point,  the  duty  imposed  to  award  a  contract  to  the 
lowest  responsible  bidder  involves  a  determination  of  other  ques- 


Board  of  Education  of  Detroit,  104 
Mich.  292,  62  N.  W.  370;  Board  of 
Finance  of  Jersey  City  v.  Jersey 
City,  57  N.  J.  Law,  452;  Ryan  v. 
City  of  Paterson,  66  N.  J.  Law, 
533,  49  Atl.  587;  McGovern  v.  Board 
of  Public  Works  of  Trenton,  57  N. 
J.  Law,  580;  Wilson  v.  Inhabitants 
of  Trenton,  60  N.  J.  Law,  394;  Mor- 
an  v.  Village  of  White  Plains,  58 
Hun,  608,  12  N.  Y.  Supp.  61;  Peo- 
ple v.  Gleason,  121  N.  Y.  631,  25 
N.  E.  4;  Terrell  v.  Strong,  14  Misc. 
258,  35  N.  Y.  Supp.  1000.  Fraud  or 
lack  of  good  faith  is  not  established 
by  award  to  one  not  the  lowest  bid- 
der. Bradley  v.  Van  Wyck,  65  App. 
Div.  293,  72  N.  Y.  Supp.  1034; 
State  v.  Hermann,  63  Ohio  St.  440; 
Findley  v.  City  of  Pittsburgh,  82 
Pa.  351;  Douglas  v.  Com.,  108  Pa. 
559;  Potts  v.  City  of  Philadelphia, 
195  Pa.  619.  The  rule  in  the  text 
applies  to  where  but  one  bid  was 
made. 

In  re  McCain,  9  S.  D.  57,  68  N. 
W.  163.  "The  right  of  Gossage  to 
have  his  bid  accepted  must  be  sus- 
tained, if  at  all,  upon  the  theory 
that  he  was  the  lowest  responsible 
bidder  and  that  it  was  the  official 
duty  of  the  board  to  award  him  the 
contracts.  Assuming  that  he  was 
the  lowest  responsible  bidder,  it 
was  the  duty  of  the  board  to  award 
him  the  contracts  did  the  court 
have  authority  to  require  the  board 
to  do  so  by  mandamus?  We  be- 
lieve the  better  doctrine  is  that  the 
duties  of  officers  intrusted  with  the 
letting  of  contracts  to  the  lowest  re- 
sponsible bidder  are  not  duties  of  a 
merely  ministerial  nature,  but  in- 
volve the  exercise  of  such  a  de- 


gree of  official  discretion  as  to  place 
them  beyond  the  control  of  the 
courts  by  mandamus.  It  was  not 
the  duty  of  the  board  to  accept  the 
Gossage  bid.  Its  duty  consisted  in 
carefully  and  honestly  considering 
the  terms  of  each  bid,  the  needs  of 
the  county,  the  responsibility  of 
each  bidder;  and  upon  the  facts,  as 
its  members  believed  them  to  exist, 
the  board  was  bound  to  act.  The 
duty  of  determining  what  bids 
were  the  lowest,  all  things  consid- 
ered and  who  was  or  was  not  a  re- 
sponsible bidder,  belonged  to  the 
board.  It  was  a  duty  confided  to 
its  honest  judgment  and  sound  dis- 
cretion. This  discretion  did  not 
rest  with  the  circuit  court.  It 
should  have  been  slow  to  interfere 
with  its  exercise  by  the  officers  es- 
pecially intrusted  therewith.  We 
very  confidently  reach  the  conclu- 
sion that  the  decision  of  the  board, 
within  the  limits  of  the  discretion 
conferred  upon  it,  should  not  be 
controlled  by  the  courts.  The  court 
might  have  required  the  board  to 
proceed  and  consider  the  bids,  but 
it  did  not  have  authority  to  com- 
mand the  board  to  award  the  con- 
tracts to  any  particular  bidder." 

Brown  v.  City  of  Houston  (Tex. 
Civ.  App.)  48  S.  W.  760;  State  v. 
Board  of  Education  of  Fond  du  Lac, 
24  Wis.  683.  "Where  proposals  are 
made  and  bids  put  in  in  the  usual 
manner  in  letting  contracts  for 
public  work,  the  lowest  bidder  has 
no  such  fixed  absolute  right  that  he 
is  entitled  to  a  mandamus  to  com- 
pel the  letting  of  the  contract  to 
him  after  his  bid  has  been  in  fact, 
"ejected,  and  the  contract  awarded 


604 


POWERS. 


§  269 


tions  than  financial;  the  business  judgment  and  capacity,  skill, 
responsibility  and  reputation  of  the  various  bidders  and  the  qual- 
ity of  the  materials  proposed  to  be  supplied  are  all  to  be  taken 
into  consideration.790 

§  269.    Discretionary  power  of  officials  to  award  to  lowest  bid- 
der or  otherwise. 

The  law  placing  in  the  hands  of  certain  public  officials  the  pow- 
er to  contract  for  and  on  behalf  of  the  public  corporation  they 
represent  may  provide  as  suggested  in  preceding  sections  for 
the  awarding  of  contracts,  only  after  public  competition.  In 
many  cases,  however,  the  power  is  vested  in  public  officials 
in  their  discretion  to  either  let  contracts  for  the  furnishing  of 
supplies,  rendition  of  services  or  the  construction  of  public 
works  after  competitive  bidding,791  or  to  award  such  contracts 
directly  to  those  who,  in  their  judgment,  will  best  perform 
them.792  Where  such  discretion  is  granted,  the  duties  performed 


to  another.  The  statutory  provision 
requiring  the  contract  in  such  eases 
to  be  let  to  the  lowest  bidder  is  de- 
signed for  the  benefit  and  protec- 
tion of  the  public  and  not  of  the 
bidders." 

790  Kelly  v.  City  of  Chicago,  62  111. 
279;  People  v.  Kent,  160  111.  655; 
Johnson  v.  Sanitary  Dist.  of  Chi- 
cago, 163  111.  285;  Connolly  v.  Board 
of  Chosen  Freeholders  of  Hudson 
County,  57  N.  J.  Law,  286,  30  Atl. 
548.  But  an  opportunity  should  be 
given  to  all  bidders  to  furnish  in- 
formation upon  all  points  pertinent 
to  a  determination  of  the  question 
of  who  is  the  lowest  responsible 
bidder. 

Ryan  v.  City  of  Paterson,  66  N. 
J.  Law,  533.  49  Atl.  587;  Wilson  v. 
Inhabitants  of  Trenton,  60  N.  J. 
Law,  394;  State  v.  Hamilton  Coun- 
ty Com'rs,  20  Ohio  St.  425;  Reuting 
v.  City  of  Titusville,  175  Pa.  512. 
The  court  said:  "The  Act  of  23rd 
May,  1874,  directing  contracts  to  be 


awarded  to  the  'lowest  responsible 
bidder,'  has  twice  been  before  us 
for  construction.  In  each  it  was 
held  that  the  word  'responsible,'  as 
used  in  the  act,  applies  not  to  pe- 
cuniary ability  only,  but  also  to 
judgment  and  skill.  The  duties 
thereby  imposed  on  the  city  au- 
thorities are  not  merely  ministerial, 
limited  to  ascertaining  whose  bid  is 
the  lowest,  and  the  pecuniary  re- 
sponsibility of  the  bidder  and  his 
sureties;  the  act  calls  for  an  exer- 
cise of  duties  and  powers  which  are 
deliberate  and  discretionary." 

791  Manly  Bldg.  Co.  v.  Newton,  114 
Ga.   245,    40   S.   E.   274.     See   §    268, 
supra. 

792  Worthington    v.    City    of    Bos- 
ton,   152    U.    S.    695;     reversing    41 
Fed.    23;    Henry   County    Com'rs    v. 
Gillies,    138    Ind.   667,  38  N.  E.   40; 
Yarnold  v.  City  of  Lawrence,  15  Kan. 
126;  Elliot  v.  City  of  Minneapolis,  59 
Minn.  Ill,  60  N.  W.  1081;   Detwiller 
y.  City  of  New  York,  46  How.  Pr.   (N. 


§269 


POWER    TO    CONTRACT. 


605 


by  officials  are  of  a  discretionary  character  and  so  long  as  the 
legislative  branch  of  the  sovereign  relies  upon  their  integrity 
and  business  judgment,  the  courts  will  not  interfere  when  they 
refuse  to  ask  for  public  and  competitive  bidding.793  Laws  re- 
quiring the  purchase  of  supplies  or  the  awarding  of  contracts 
to  be  made  upon  public  competition  may  apply  not  to  all  sup- 
plies, services  or  work  but  only  to  those  the  cost  of  which  may 
be  in  excess  of  a  certain  sum794  or  which  may  be  specifically 
named.795  As  to  all  other  supplies,  services  or  work,  the  law 


Y.)  218;  Warren  v.  Barber  Asphalt 
Pav.  Co.,  115  Mo.  572,  22  S.  W.  490; 
Gleason  v.  Dalton,  28  App.  Div.  555, 
51  N.  Y.  Supp.  337;  Meyers  v.  City 
of  New  York,  58  App.  Div.  534,  69 
N.  Y.  Supp.  529;  In  re  Emigrant 
Industrial  Sav.  Bank,  75  N.  Y.  388; 
Beers  v.  Dalles  City,  16  Or.  334,  18 
Pac.  835. 

793  Cummins  v.  City  of  Seymour, 
79  Ind.  491;  Kingsley  v.  City  of 
Brooklyn,  5  Abb.  N.  C.  (N.  Y.)  1. 

-94  Littler  v.  Jayne,  124  111.  123, 
16  N.  E.  374;  Sanitary  Dist.  of  Chi- 
cago v.  George  F.  Blake  Mfg.  Co., 
179  111.  167;  Long  v.  Boone  County, 
36  Iowa,  60;  Packard  v.  Hayes, 
94  Md.  233,  51  Atl.  32;  Good- 
willie  v.  City  of  Detroit,  103  Mich. 
283,  61  N.  W.  526;  Duffy  v. 
City  of  Saginaw,  106  Mich.  335,  64 
N.  W.  581;  State  v.  Saline  County 
Com'rs,  19  Neb.  253;  State  v.  Cun- 
ningham, 37  Neb.  687;  Tullock  v. 
Webster  County,  46  Neb.  211;  Of- 
fice Specialty  Mfg.  Co.  v.  Washoe 
County,  24  Nev.  359,  55  Pac.  222; 
Board  of  Finance  of  Jersey  City  v. 
Jersey  City,  57  N.  J.  Law,  452,  31 
Atl.  625;  Kean  v.  City  of  Elizabeth, 
35  N.  J.  Law,  351;  Phelps  v.  City 
of  New  York,  112  N.  Y.  216,  19  N. 
E.  408;  Walton  v.  City  of  New  York, 
26  App.  Div.  76,  49  N.  Y.  Supp.  615; 
People  v.  Scannell,  69  App.  Div.  400, 


75  N.  Y.  Supp.  122;  City  of  Waco 
v.  Chamberlain  (Tex.  Civ.  App.) 
45  S.  W.  191. 

795Verdin  v.  City  of  St.  Louis, 
131  Mo.  26;  Barber  Asphalt  Pav. 
Co.  v.  Hezel,  155  Mo.  391,  48  L.  R. 
A.  285.  Repairs  to  a  street  held  a 
public  work  to  be  let  by  contract  to 
the  lowest  responsible  bidder  pur- 
suant to  a  St.  Louis  charter,  art. 
6,  §  27. 

City  of  Trenton  v.  Shaw,  49  N.  J. 
Law,  638,  10  Atl.  273.  A  contract 
for  the  supply  of  rubber  hose  not 
included  within  a  provision  requir- 
ing "that  all  contracts  for  doing 
work  furnishing  materials  for  any 
improvement"  shall  be  given  to  the 
lowest  bidder. 

Curley  v.  Chosen  Freeholders  of 
Hudson  County,  66  N.  J.  Law,  401, 
49  Atl.  471.  The  law  requiring  the 
advertisement  of  a  contract  for  the 
lowest  bidder  applies  only  to  origi- 
nal construction  of  public  high- 
ways, not  to  work  and  materials 
necessary  for  their  regular  repair. 
State  v.  Kern,  51  N.  J.  Law,  259; 
City  of  Camden  v.  Ward,  67  N.  J. 
Law,  558,  52  Atl.  392;  Farmers' 
Loan  &  Trust  Co.  v.  City  of  New 
York,  17  N.  Y.  Super.  Ct.  (4'Bosw.) 
80;  In  re  Leeds,  53  N.  Y.  400; 
Greene  v.  City  of  New  York,  60  N. 
Y.  303;  People  v.  Van  Nort,  65 


606 


POWERS. 


§  270 


will  not  apply  and  public  officials  having  charge  of  such  affairs 
can,  in  their  discretion,  ask  for  public  and  competitive  bids  or 
directly  award  contracts.796 

§  270.    Change  of  contract. 

Where  contracts  are  required  to  be  let  after  competitive  bid- 
ding, changes  cannot  be  made  in  them  or  in  the  specifications 
after  the  publication  of  the  advertisement  calling  for  bids.  To 
permit  such  a  course  would,  undoubtedly,  defeat  the  purpose 
of  the  law  requiring  competition.797  If  it  is  found  necessary 


Barb.  (N.  Y.)  331.  Such  a  law 
does  not  apply  to  estimates  for  pat- 
ented articles  or  modes  of  work. 

Walsh  v.  City  of  Columbus,  36  Ohio 
St.  169;  Silsby  Mfg.  Co.  v.  City  of 
Allentown,  153  Pa.  319.  There  is  no 
necessity  for  competitive  bidding 
when  the  article  to  be  supplied  is 
a  patented  one,  the  sale  of  which  is 
controlled  by  one  firm. 

Com.  v.  Mercer,  165  Pa.  1.  The 
law  does  not  apply  to  extra  work  in 
transcribing  official  books,  etc.,  such 
services  can  be  rendered  by  clerks 
at  a  fixed  salary  instead  of  being 
let  to  the  lowest  bidder.  Spangler 
v.  Gallagher,  182  Pa.  277.  A  sol- 
dier's monument  is  not  a  public 
building  within  the  statutes  requir- 
ing the  erection  of  county  build- 
ings to  be  let  to  the  lowest  bidder. 
Kilvington  v.  City  of  Superior,  83 
Wis.  222,  18  L.  R.  A.  45. 

™«McGowan  v.  Ford,  107  Cal. 
177,  40  Pac.  231.  The  law  does  not 
apply  to  a  contract  for  repairs,  al- 
terations or  improvements  in  the 
court  house  and  grounds.  City  of 
Chicago  v.  McKechney,  91  111.  App. 
442;  Williams  v.  Henry  County 
Com'rs,  27  Ind.  App.  207,  60  N.  E. 
1099;  Stone  v.  Dispatch  Pub.  Co., 
21  Ky.  L.  R.  1473,  55  S.  W.  725. 
The  rnK  applied  to  printing  the 


proceedings  of  the  General  Assem- 
bly from  day  to  day  for  use  of  its 
members.  Reid  v.  Trowbridge,  78 
Miss.  542,  29  So.  167;  Mason  v. 
Cranbury  Tp.,  68  N.  J.  Law,  149,  52 
Atl.  568;  Oakley  v.  Atlantic  City,  63 
N.  J.  Law,  127;  Kingsley  v.  City  of 
Brooklyn,  5  Abb.  N.  C.  (N.' Y.)  1; 
Westmoreland  County's  Appeal,  164 
Pa.  355. 

7»7  Manly  Bldg.  Co.  v.  Newton, 
114  Ga.  245,  40  S.  E.  274;  Osburn  v. 
City  of  Lyons,  104  Iowa,  160,  73  N. 
W.  650.  "The  first  objection  to  the 
validity  of  the  tax  urged  is  that  the 
requirements  of  the  law  with  re- 
spect to  letting  contracts  for  such 
improvements  were  not  fulfilled. 
*  *  *  The  portion  of  the  notice 
thus  called  in  question  is  as  fol- 
lows: '*  *  *  Sealed  bids  or 
proposals  are  hereby  invited  by  the 
undersigned  city  clerk  of  Lyons 
City,  in  said  County,  to  be  filed  with 
him  at  his  office  in  said  city  on  or 
before  the  5th  day  of  July,  A.  D., 
1893,  at  7:30  o'clock  P.  M.  for  grad- 
ing, curbing,  guttering  and  paving 
improvement  districts  numbers  two 
and  three,  in  said  city  according  to 
the  resolution  and  ordinance  of 
said  city,  heretofore  adopted  order- 
ing the  same,  and  the  specifications 
of  the  city  engineer  of  said  city  on 


§  271 


POWER    TO    CONTRACT. 


607 


after  the  publication  of  the  proposal  to  change  the  character  or 
the  quality  of  the  materials  desired  or  the  extent  of  the  work, 
the  proceedings  then  pending  should  be  abandoned  and  a  new 
proposal  advertised  for  public  bids  based  upon  the  changed  con- 
ditions.798 

§  271.    Parties  to  the  proceedings. 

Bidders  are  under  no  obligation  to  give  the  municipality  the 
benefit   of  personal   information   or   knowledge,799    and,    on   the 


file  in  the  office  of  the  said  city 
clerk,  which,  together  with  his  es- 
timate of  approximate  quantities, 
are  hereby  included  in  this  notice 
and  made  a  part  hereof.'  The  stat- 
ute also  required  the  notice  to  state 
when  the  work  should  be  done  but 
the  notice  in  question  did  not  refer 
to  that  subject.  It  is  true  that  the 
paving  resolution  referred  to  in  the 
notice,  fixed  November  1,  1893,  as 
the  time  for  completing  the  work, 
but  about  four  months  after  the  no- 
tice was  published  and  the  bids 
were  received  and  six  months  be- 
fore either  of  them  was  accepted, 
the  council  changed  the  time  for 
completing  the  work  to  the  1st  day 
of  April,  1894,  as  already  stated. 
The  bid  of  the  Lyons  Construction 
Company  was  not  accepted  until 
the  1st  day  of  May,  1894.  At  that 
time  the  company  was  not  under 
any  obligation  on  account  of  the 
original  bid,  to  do  the  work  for  the 
reason  its  bid  was  based  on  the 
proposition  that  the  work  should  be 
completed  on  the  date  first  fixed, 
and  the  bid  of  its  competitor  was 
founded  upon  the  same  proposition. 
No  bid  had  been  asked  nor  made 
to  do  the  work  during  a  period  of 
time  which  would  expire  on  the  sec- 
ond date  fixed,  and  the  contract  as 
finally  made,  was  entered  into  with- 
out notice  and  without  th«,  compe. 


tition    for    which    the    statute    pro- 
vides." 

Wickwire  v.  City  of  Elkhart,  144 
Ind.  305,  43  N.  E.  216;  Campau  v. 
City  of  Detroit,  106  Mich.  414,  64  N. 
W.  336;  Rens  v.  City  of  Grand  Rap- 
ids, 73  Mich.  237;  Nash  v.  City  of 
St.  Paul,  11  Minn.  174  (Gil.  110); 
People  v.  Board  of  Imp.  of  Union 
St.,  43  N.  Y.  227;  People  v.  Van 
Nort,  65  Barb.  (N.  Y.)  331;  Dickin- 
son v.  City  of  Poughkeepsie,  75  N. 
Y.  65. 

798  city  of  Chicago  v.  McKechney, 
91  111.  App.  442.     New  bids  are  not 
required  where  the  change  does  not 
involve     any     material     departure 
from  the  original  plans  and  specifi- 
cations.    State     T.     Birkhauser,    37 
Neb.  521.     The  material  for  paving 
may   be  selected   under   Consol.    St. 
1891,    §   2373,  after  bids  have   been 
submitted.     See,     also,     as     holding 
that   plans   and    specifications    need 
not  be  filed   before  advertising   for 
bids    under   special   charter    provis- 
ions, Reno  Water,  Land  &  Light  Co. 
v.  Osburn,  25  Nev.  53,  56  Pac.  945; 
Highland        County        Com'rs        v. 
Rhoades,   26    Ohio    St.    411.    A   low- 
est bidder    cannot   be  compelled   to 
sign   a   contract   differing   in    mate- 
rial   respects   from    that   called   for 
by    the    advertisement    asking    for 
bids 

799  McMullen  v.  Hoffman,  75  Pea. 


508 


POWERS. 


§  272 


other  hand,  the  municipality  is  not  required  to  impart  informa- 
tion to  bidders  which  may  have  been  acquired  personally  by 
public  officials  representing  such  corporation.800  The  right  does 
not  exist  to  arbitrarily  reject  bids  of  certain  bidders  who,  at 
the  time  of  the  submission  of  their  bids,  may  not  be  in  a  posi- 
tion to  perform  the  work  or  furnish  the  supplies  required.  Pub- 
lic officials  have  no  right  to  pass  adversely  upon  their  power  to 
perform  a  contract  before  the  proper  time  or  before  it  has  been 
made.801  A  mistake  in 'a  bid  if  notice  is  promptly  given  and  the 
bid  withdrawn  will  relieve  the  bidder.802 

§  272.     Conditions  imposed. 

To  prevent  fraud  or  collusion  and  to  secure  bids  from  those 
who  are  financially  responsible  and   will  perform  the  contract 


547.  It  is  said  in  the  opinion  "nor 
is  it  a  ground  of  complaint  that  the 
parties  had  the  advice  of  capable 
engineers  and  were  able  to  know  be- 
forehand that  the  work  could  be 
done  for  $416,000  and  leave  a  profit 
of  at  least  $80,000.  They  were  un- 
der no  moral  obligation  to  lower 
their  bid  because  of  the  information 
they  had  procured  nor  in  any  man- 
ner to  give  the  city  the  benefit  of 
the  knowledge  they  had  acquired  at 
their  own  expense,  even  if  the 
means  of  such  knowledge  was  not 
within  the  city's  reach." 

soo  Cleaveland  v.  Richardson,  132 
U.  S.  318;  Sanitary  Dist.  of  Chica- 
go v.  Ricker,  91  Fed.  833.  "  'Caveat 
emptor'  is  a  just  maxim  and  equally 
the  contractor  must  stand  guard 
for  his  own  interests  when  making 
his  agreements." 

soi  State  v.  Milligan,  3  Wash.  St. 
144;  Berry  v.  City  of  Tacoma,  12 
Wash.  3,  40  Pa.c.  414.  "The  testi- 
mony shows  that  it  was  the  deter- 
mination of  the  council  not  to  take 
into  consideration  or  to  investigate 
the  qualifications  of  any  of  the  bid- 
ders other  than  the  owners  of  news- 


papers; and  if,  as  we  think,  the  law 
is  that  the  council  should  exercise 
its  discretion  in  investigating  the 
qualifications  of  bidders  and  they 
arbitrarily  dismissed  from  such  in- 
vestigation or  consideration  a  cer- 
tain class  of  bidders,  then,  certain- 
ly, as  to  that  class,  the  council  haa 
refused  to  exercise  its  discretion. 
*  *  *  This  we  think  was  error." 
802  Moffett,  Hodgkins  &  Clarke  Co. 
v.  City  of  Rochester,  178  U.  S.  373; 
reversing  (C.  C.  A.)  91  Fed.  28. 
The  court  said  in  the  same  case  in 
82  Feb.  255:  "If  the  defendants 
are  correct  in  their  contention  there 
is  absolutely  no  redress  for  a  bidder 
for  public  work  no  matter  how  ag- 
gravated or  palpable  his  blunder. 
The  moment  his  proposal  is  opened 
by  the  executive  board  he  is  held 
as  in  a  grasp  of  steel.  *  *  *  If 
through  an  error  of  his  clerk  he 
has  agreed  to  do  work  worth  $1,- 
000,000  for  $10  he  must  be  held  to 
the  strict  letter  of  his  contract 
while  equity  stands  by  with  folded 
hands  and  sees  him  driven  into 
bankruptcy." 


§  272  POWER    TO    CONTRACT.  609 

should  it  be  awarded  them,  in  the  public  advertisement  calling 
for  bids,  conditions  are  valid  that  bidders  must  furnish  a  bond 
with  good  and  sufficient  securities  for  the  proper  performance 
of  the  work  upon  the  awarding  of  the  contract,803  or  that  a  cer- 
tain deposit  must  accompany  their  bid  to  be  forfeited  in  case  the 
award  is  made  to  them  and  they  refuse  to  execute  a  contract 
based  upon  such  award.804  A  condition  is  also  valid  requiring 
the  giving  of  a  bond  with  good  and  sufficient  securities  by  the 
contractor  conditioned  upon  keeping  the  work  in  good  repair 
for  the  period  specified,803  or  requiring  proof  of  satisfactory  use 
of  the  material  offered.806 

soa  Arkansas      Democrat     Co.     v.  so*  Village  of  Morgan  Park  v.  Ga- 

Press  Printing  Co.,  57  Ark.  322,  21  ban,    136    111.    515,    26    N.    E.    1085; 

S.  W.  586.    On  account  of  defect  in  Robinson  v.  Board  of  Education  of 

title,    statute    not   enforced   in   this  Chicago,   98   111.   App.  100;    Robling 

particular  case.  v.    Pike    County    Com'rs,    141    Ind. 

Larned  v.  Maloney,  19   Ind.  App.  522;     Coggeshall     v.    City    of    Des 

199,  49  N.  E.  278;   City  of  St.  Paul  Moines,  78  Iowa,  235;   Flemming  v. 

v.  Butler,  30  Minn.  459.     The   rule  Jersey    City    (N.   J.   'Law)    42    Atl. 

is   also   true   in   regard   to  a   statu-  845;    Erving  v.  City  of  New  York, 

tory    provision     requiring    a    bond  131   N.   Y.    133;    Selpho   v.   City  of 

from  the   contractor  "that  he  shall  Brooklyn,   158  N.  Y.  673,   52  N.  E. 

pay  all  just  claims  for  all  labor  per-  1126,  affirming  5  App.   Div.  529,  39 

formed    or   material    furnished    for  N.   Y.   Supp.   520;    Kinsella  v.   City 

or  on  account   of  said   contract  as  of   Auburn,    54    Hun    (N.    Y.)    634; 

aforesaid  as  they  shall  become  due."  Walsh  v.  City  of  New  York,  55  N.  Y. 

Mackey  v.  Columbus  Tp.,  71  Mich.  Super.  Ct.   (23  J.  &  S.)  535;  Mutch- 

227,  38  N.  W.  899;    May  v.  City  of  ler  v.  City  of  Easton,  148  Pa.  441; 

Detroit,   2   Mich.   N.   P.   235;    Carey  Cotter  v.   Casteel   (Tex.  Civ.  App.) 

v.  City  of  East  Saginaw,  79   Mich.  37  S.  W.  791.    Where,  however,  the 

73,  44  N.  W.  168.     Where,  however,  conditions  required  in  the  contract 

the  charter  provides  "for  good  and  are  more  onerous  than  noted  in  the 

sufficient  security  as  required  by  said  advertisement  calling  for  bids,   the 

board,"  the  failure  to  furnish  such  deposit   will   not  be  forfeited   upon 

will  be  immaterial.  a  failure  of  the  successful  bidder  to 

Gibson   v.    Owens,    115    Mo.    258;  execute  the  contract. 

Barrett  v.  Ocean  City,  62  N.  J.  Law,  SOB  Forsyth    County    v.    Gwinnett 

588,   41   Atl.   946;    Smith  v.   City  of  County,  108   Ga.  510,  33   S.  E.   892. 

New  York,  10  N.  Y.   (6  Seld.)  504;  A    statutory   provision   requiring   a 

Walsh  v.  City  of  New  York,  113  N.  bond  is  mandatory,  and  in  no  way 

Y.   143;    State   v.   Board   of   Educa-  can  it  be  treated  simply  as  a  mat- 

tion   of  Delaware   County,   42    Ohio  ter  of  form  and  directory. 

St.  374;  Philadelphia  &  R.  R.  Co.  v.  soe  Berghoffen    v.     City     of    New 

Waterman,  54  Pa.  337;   Mutchler  v.  York,  31  Misc.  205,  64  N.  Y.  Supp. 

City  of  Easton,  148  Pa.  441.  1082.    The  court  said:     "It  does  not 

Abb.  Corp.— 39. 


610 


POWERS. 


§  273 


§  273.     Contracts;  how  made;  in  writing. 

The  statutory  authority  for  the  making  of  a  contract  by  a 
public  corporation  may  require  that  all  contracts  to  be  valid 
and  binding  upon  the  corporation  must  be  in  writing807  or  the 
provision  may  apply  to  such  contracts  as  call  for  the  expenditure 
of  public  moneys  in  excess  of  a  certain  sum.  These  provisions 
are  usually  considered  valid,  and  contracts  not  made  in  accord- 
ance with  them  cannot  be  enforced  although808  in  many  instances 


seem  to  me  that  the  provision  re- 
quiring a  bidder  who  has  not  done 
work  in  this  city  to  show  some  lo- 
cality where  pavement  of  such  ma- 
terial as  he  proposes  to  use  has  been 
laid  can  be  said  to  be  unfair,  un- 
reasonable or  unjust.  The  affidavits 
read  on  the  part  of  the  "defendants 
show  that  as  soon  as  the  commis- 
sioner of  highways  came  into  office 
"he  called  to  his  aid  the  engineers  of 
liis  department  and  imposed  upon 
them  the  responsibility  of  formulat- 
ing rules  which  should  safeguard 
the  rights  of  the  city  in  that  re- 
spect, and  as  a  result  of  the  com- 
bined judgment  of  those  engineers, 
the  provisions  which  are  now  made 
the  subject  of  attack  in  this  action 
were  adopted.  *  *  *  In  the  case 
at  bar,  *  *  *  the  restrictive  pro- 
vision which  is  complained  of  by 
the  plaintiff  is  a  provision  which 
will  enable  the  commissioner  of 
highways  to  ascertain  whether  the 
bidder  is  competent  from  experi- 
ence in  other  localities  to  perform 
his  contract;  in  other  words  it  is 
a  provision  which  would  be  general 
in  character,  and  be  uniform 
throughout  all  the  boroughs  in  the 
city,  and  yet  which  would,  as  far 
as  possible,  protect  the  interests  of 
the  city  in  regard  to  asphalt  paving. 
*  *  *  Under  these  circumstances, 
I  do  not  think  that  it  can  be  fairly 
argued  that  the  action  of  the  com- 


missioner of  highways  was  illegal 
or  fraudulent." 

SOT  Goodyear  Rubber  Co.  v.  City 
of  Eureka,  135  Cal.  613,  67  Pac. 
1043;  Schwiesau  v.  Mahon,  110  Cal. 
543;  Frick  v.  City  of  Los  Angeles, 
115  Cal.  512;  Milburn  v.  Glynn 
County  Com'rs,  112  Ga.  160,  37  S. 
E.  178;  Aurora  Water  Co.  v.  City  of 
Aurora,  129  Mo.  540,  31  S.  W.  946. 
The  right  to  supply  a  city  with 
water  being  granted  by  ordinance, 
its  passage  and  acceptance  in  writ- 
ing by  a  person  is  a  sufficient  com- 
pliance with  the  statutory  provision 
that  all  contracts  should  be  in  writ- 
ing. Maupin  v.  Franklin  County, 
67  Mo.  327. 

sos  Rice  v.  Plymouth  Couffty,  43 
Iowa,  136;  Starkey  v.  City  of  Min- 
neapolis, 19  Minn.  203  (Gil.  166); 
Basshor  v.  City  of  St.  Paul,  26  Minn. 
110.  "City  ordinance  No.  18  pro- 
hibits the  controller  from  auditing 
or  approving  any  claims  for  pur- 
chases made  for  the  fire  department, 
unless  such  purchases  were  made 
upon  the  written  order  of  the  com- 
mittee on  fire  department,  a  copy 
of  which  order  shall  be  transmitted 
to  the  controller  with  the  account 
for  the  purchases.  The  effect  of  all 
this  is — First,  that  no  one  except 
the  common  council  or  some  one  act- 
ing under  its  direction,  (as,  for  In- 
stance, the  committee  of  fire-depart- 
ment) has  any  authority  to  purchase 


§  273 


POWER    TO    CONTRACT. 


611 


when  supplies  are  furnished  under  a  contract  afterwards  held 
invalid  because  of  this  reason,  the  party  furnishing  such  sup- 
plies or  materials  can  recover  the  same  or  for  the  same  in  the 
proper  proceedings.809  The  early  rule  which  existed  independent 
of  statutory  or  charter  provisions  was  to  the  effect  that  public 
corporations  being  artificial  persons  could  only  act  under  seal 
and  in  writing  even  where  the  act  or  instrument  was  a  simple 
contract.  This  rule  has  been  modified  to  such  an  extent  that 
the  seal  is  scarcely  ever  required  to  give  validity  to  corporate 
acts.810 


fire-apparatus;  second,  that  the  com- 
mittee on  fire-department  can  make 
such  purchases  only  by  a  written 
order;  and  third,  that  a  purchase 
made  otherwise  than  by  the  council, 
or  some  one  acting  under  its  direc- 
tion, (as  for  instance,  the  commit- 
tee on  fire-department)  or  one  made 
by  such  committee  otherwise  than 
by  written  order,  is  unauthorized, 
and  does  not  bind  the  city.  Such 
purchase  is  not  only  simply  unau- 
thorized, as  made  without  author- 
ity, but  it  is  void  because  made  in 
direct  contravention  of  the  city 
charter  and  ordinance,  and,  there- 
fore, prohibited  to  be  made." 

Bridges  v.  Clay  County  Sup'rs,  58 
Miss.  817;  Crutchfield  v.  City  of 
Warrensburg,  30  Mo.  App.  456;  In- 
habitants of  Schell  City  v.  L.  M. 
Rumsey  Mfg.  Co.,  39  Mo.  App.  264; 
Savage  v.  City  of  Springfield,  83  Mo. 
App.  323  (Such  a  contract  cannot 
be  ratified) ;  Woolfolk  v.  Randolph 
County,  83  Mo.  501;  Bryson  v.  John- 
son County,  100  Mo.  76;  Aurora  Wa- 
ter Co.  v.  City  of  Aurora,  129  Mo. 
540.  "The  passage  of  an  ordinance 
granting  a  person  the  right  to  sup- 
ply water  to  the  city,  its  Approval 
by  the  voters  and  its  sufficient  ac- 
ceptance by  such  person  in  writing, 


is  sufficient  compliance  with  Rev.  St. 
§  3157,  requiring  contracts  with 
municipal  corporations  to  be  in  writ- 
ing." 

Jersey  City  Water  Com'rs  v. 
Brown,  32  N.  J.  Law,  504;  Condon  v. 
Jersey  City,  43  N.  J.  Law,  452; 
Chapman  v.  City  of  Brooklyn,  40  N. 
Y.  372;  Argus  Co.  v.  City  of  Albany, 
55  N.  Y.  495;  Dougherty  v.  Borough 
of  Norwood,  196  Pa.  92;  Willoughby 
v.  City  of  Florence,  51  S.  C.  462; 
Arnott  v.  City  of  Spokane,  6  Wash. 
442. 

809  Crump  v.  Colfax  County  Sup'rs, 
52  Miss.  107;  North  River  Elec. 
Light  &  Power  Co.  v.  City  of  New 
York,  48  App.  Div.  14,  62  N.  Y. 
Supp.  726.  A  contract  for  the  sup- 
ply of  electric  light  fully  performed 
by  the  contractor  can  be  enforced 
by  him. 

La  France  Fire  Engine  Co.  v.  City 
of  Syracuse,  33  Misc.  516,  68  N.  Y. 
Supp.  894.  The  article  itself  can  be 
recovered  by  the  seller  from  the 
city  in  the  proper  action.  Nicholson 
v.  Guardians  of  Bradfield  Union,  'L. 
R.  1  Q.  B.  620. 

sio  Wade  v.  City  of  New  Bern,  77 
N.  C.  460;  Austin  v.  Guardians  of 
Bethnal  Green,  L.  R.  9  C.  P.  91. 


512 


POWERS.  275 


§  274.    How  made;  orally. 

Where,  however,  there  is  no  express  provision  requiring  con- 
tracts or  certain  contracts  to  be  made  in  writing,  the  usual  rule 
applies  that  where  the  power  to  contract  exists,  such  contract 
may  be  made  orally  as  well  as  in  writing,  subject,  of  course,  to 
the  rules  of  law  based  upon  the  statute  of  frauds  or  those  re- 
lating to  the  general  law  of  contracts.811 

§  275.    By  whom  made. 

In  preceding  sections,  the  invalidity  of  a  contract  made  by  a 
public  corporation  the  result  of  want  of  authority  or  legal  power 
has  been  discussed,  but  granting  this,  the  further  principle  is 
suggested  that  a  public  corporation  being  an  artificial  person 
can  only  act  through  its  agents  specially  authorized.  The  prin- 
ciples creating  and  regulating  the  relations  existing  between 
principal  and  agent  differ  in  their  application  to  officers  or  agents 
of  a  public  corporation  as  distinguished  from  such  representa- 
tives either  of  private  corporations  or  natural  persons.  A  pub- 
lic corporation  being  merely  a  governmental  agent  and  organ- 
ized for  the  pecuniary  advantage  of  its  members  or  officials  is 
restricted  and  limited  in  the  exercise  of  its  powers  in  every  way. 
The  legal  principle  cannot  be  too  often  repeated  that  a  public 

en  Brush    Elec.    Light    &    Power  Town  of  Bowling  Green,  45  Ky.   (6 

Co.  v.  City  Council  of  Montgomery,  B.  Mon.)   229;  Frankfort  Bridge  Co. 

114   Ala.  433,  21   So.   960;    Bluthen-  v.  City  of  Frankfort,  57  Ky.   (18  B. 

thai  v.  Town  of  Headland,  132  Ala.  Mon.)   41;   Booth  v.  City  of  Shreve- 

249,  31  So.  87.     The  violation  of  a  port,  29  La.  Ann.  581;  Carey  v.  City 

law  prohibiting  the  sale  of  liquors  of  East    Saginaw,   79    Mich.    73,    44 

upon  credit  will  prevent  a  recovery  N.   W.  168;   Tucker  v.  City  of  Vir- 

although   they    have    been   used   by  ginia,  4  Nev.  20;   Argus  Co.  v.  City 

the  city,  to  whom  sold.     Construing  of  Albany,   55  N.  Y.  495.      See  this 

Acts  1898-99,  p.  108,  §  9.  case  as  denning  what  constitutes  a 

Montgomery  County  v.  Barber,  45  note    or    memorandum    in    writing 

Ala.  237;   City  of  Selma  v.  Mullen,  within  the   meaning  of  the   statute 

46  Ala.  411;  Halbut  v.  Forrest  City,  of  frauds. 

34    Ark.    246;     Maher    v.    City    of  Wade  v.  City  of  New  Bern,  77  N. 

Chicago,  38   111.   266;    Town  of  New  C.  460.     An  ordinance,  resolution  or 

Athens  v.  Thomas,  82  111.  259;  City  vote  accepting  a  proposal  if  signed 

of  Logansport  v.  Dykeman,  116  Ind.  by  the  parties,   is  not  sufficient  to 

15;   City  of  Indianola   v.   Jones,  29  take  it  out  of  the  statute  of  frauds. 

Iowa,  282;   Buncombe  v.  City  of  Ft.  Dunlap  v.   Erie  Water  Com'rs,   151 

Dodge,  38   Iowa,   281;    De  Board  v.  Pa.  477. 


§   275  POWER    TO    CONTRACT.  613 

corporation  is  not  bound  by  acts  of  its  agents  coming  within 
the  apparent  scope  of  their  power  and  authority.  Their  author- 
ity to  act  must  be  explicit  and  direct  that  the  corporation  be 
bound.812  There  are  found  therefore  many  contracts  made  or 
attempted  to  be  made  by  public  officials  held  invalid  which,  if 
executed  on  behalf  of  a  private  corporation  or  a  natural  per- 
son, would  be  enforced.  The  power  of  public  officials  to  bind 
a  corporation  in  the  making  of  a  contract  or  of  the  corporation 
itself  to  contract,  is  closely  scrutinized,  and  unless  the  same  clear- 
ly appears,  its  existence  will  not  be  presumed.813 

A  public  corporation  is  an  organization  of  a  greater  or  less 
degree  of  complexity;  each  of  the  different  branches  or  depart- 
ments having  for  its  purpose  the  exercise,  control  and  manage- 
ment of  certain  governmental  powers  or  duties.  As  exercising 
such  powers  on  behalf  of  the  corporation  will  be  found  certain 
designated  officials  who,  by  law,  are  given  the  right  to  perform 
certain  prescribed  duties.  Contracts  made  by  officials  concern- 
ing matters  which  do  not  come  within  the  scope  of  duties  thus 
specified  or  for  which  authority  does  not  exist  cannot  be  en- 
forced. This  doctrine  is  most  emphatically  applied  in  connection 
with  those  acts  involving  the  expenditure  of  public  moneys.814 

812  See  authorities  cited  in  §  260.  thority  of  a  committee  appointed  by 

Milford   School   Town  v.  Zeigler,   1  a   city  council   to  sell   some  of  the 

Ind.   App.  138;    Whitney  v.  City  of  city's  property  will  be  presumed. 

New  Haven,  58  Conn.  450;  Seibrecht  si4  Intendant  &  Town  Council   of 

v.  City  of  New  Orleans,  12  La.  Ann.  Livingston   v.    Pippin,   31   Ala.    542. 

496;  Damon  v.  Inhabitants  of  Gran-  Where  discretionary  authority,  how- 

by,  19  Mass.  (2  Pick.)   345.    A  com-  ever,  exists,  no  objection  to  the  mode 

mittee   duly   authorized   to  superin-  of  accomplishing  the  result  can  be 

tend   the    construction    of   a   public  availed  of  as  a  defense  to  an  action 

building  have  the  implied  power  to  on    the    contract.      Neosho    County 

make  all  necessary  contracts  in  con-  Com'rs    v.   Stoddart,    13   Kan.    207; 

nection  with  its  erection.  City   of   Baltimore  v.   Reynolds,   20 

Hunneman  v.  Inhabitants  of  Graf-  Md.  1;  Butler  v.  City  of  Charles- 
ton, 51  Mass.  (10  Mete.)  454;  Mahon  town,  73  Mass.  (7  Gray)  12;  White 
v.  Luzerne  County,  197  Pa.  1.  v.  City  of  New  Orleans,  15  La.  Ann. 

sis  Johnson  v.  Common  Council  of  667;  Cuming  County  Com'rs  v.  Tate, 

Indianapolis,  16  Ind.  227;   Plummer  10  Neb.  193;  Dey  v.  Jersey  City,  19 

v.  Kennedy,  72  Mich.  295,  40  N.  W.  N.  J.  Eq.   (4  C.  E.  Green)  412;  City 

433;    Owen    v.    Hill,    67    Mich.    43;  of  Philadelphia  v.  Philadelphia  &  R. 

Adams    v.    Dignowity,    8    Tex.    Civ.  R.  Co.,  88  Pa.  314. 
App.    201,    28    S.   W.    373.     The   au- 


614  POWERS.  §  276 

The  authority  of  public  agents  or  officials  being  thus  special 
and  limited,  all  persons  dealing  with  them  are  charged  with  no- 
tice of  such  limitations  and  are  bound  at  their  peril  to  ascertain 
the  nature  and  the  extent  of  their  authority  and  especially  is 
this  true  of  acts  or  duties  conferred  specifically  by  statute.815 
The  authority  granted  by  charter  or  statutory  provision  must 
be  exercised  in  the  manner,  at  the  time  and  in  the  place  desig- 
nated and  contracts  not  executed  agreeably  to  such  provisions 
will  be  held  void  and  therefore,  incapable  of  enforcement.818 

§  276.    As  authorized  by  legislative  bodies. 

Legislative  bodies,  whether  state  legislatures  or  town  or  vil- 
lage councils  or  assemblies  generally  possessing  under  our  plan 
of  government  the  original  power  of  making  appropriations  in- 
volving the  expenditure  of  public  moneys  are  usually  given  by 
express  law  the  power  of  initiative  in  this  respect.  Under  such 
a  condition  or  limitation,  contracts  made  by  other  officials  or 
bodies  and  effecting  the  same  result  will  not  be  enforced  and  fur- 
ther, the  law  granting  the  express  authority  to  the  legislative 
body  must,  as  regards  the  time  and  the  manner  of  the  exercise 
of  the  power,  be  strictly  followed.817  The  manner  of  exercising 
the  power  includes  all  the  formalities  required  for  the  calling 

SIB  See    authorities    cited    §    249.  Taft   v.   Town   of   Pittsford,   28   Vt. 

Hughson    v.    Crane,    115    Cal.    404;  286. 

Town  of  Madison  v.  Newsome,  39  SIG  Sioux  City  v.  Weare,  59  Iowa, 
Fla.  149,  22  So.  270;  Barnard  v.  95.  A  contract  executed  by  the 
Sangamon  County,  91  111.  App.  98;  chairman  of  a  committee  and  not  its 
Clinton  School  Tp.  v.  'Lebanon  Nat.  act  is,  therefore,  invalid.  Hanson  v. 
Bank,  18  Ind.  App. -42,  47  N.  E.  349;  Inhabitants  of  Dexter,  36  Me.  516. 
Boston  Elec.  Co.  v.  City  of  Cam-  A  town  will  not  be  bound  by  a  con- 
bridge,  163  Mass.  64,  39  N.  E.  787i  tract  executed  on  its  behalf  by  less 
Cheeney  v.  Inhabitants  of  Brook-  than  a  majority  of  the  town  corn- 
field, 60  Mo.  53;  Lebcher  v.  Custer  mittee.  Such  contract,  however, 
County  Com'rs,  9  Mont.  315;  may  be  subsequently  ratified. 
Schumm  v.  Seymour,  24  N.  J.  Eq.  SIT  City  of  Birmingham  v.  Rum- 
(9  C.  E.  Green)  143;  McDonald  v.  sey,  63  Ala.  352;  City  of  Stockton  v. 
City  of  New  York,  68  N.  Y.  23,  23  Creanor,  45  Cal.  643;  Greenwood  v. 
Am.  Rep.  144;  City  of  Cleveland  v.  Morrison,  128  Cal.  350;  Ford  v. 
State  Bank,  16  Ohio  St.  236,  88  Am.  Town  of  North  Des  Moines,  80  Iowa, 
Dec.  445;  City  of  Wellston  v.  Mor-  626;  Creston  Waterworks  Co.  v.  City 
gan,  65  Ohio  St.  219,  62  N.  E.  127;  of  Creston,  101  Iowa,  687,  70  N.  W. 


§  276 


POWER    TO    CONTRACT. 


615 


of  a  legal  meeting,  the  adoption  of818  a  resolution,  ordinance  or 
law,  the  approval  of  a  contract  and  questions  relating  to  a  quorum 
or  necessary  vote.819  These  bodies  may  direct  the  execution  of 
contracts  by  designated  persons  or  officials  who  then  possess  the 


739.  A  city  council  originally  au- 
thorized to  make  a  contract  pos- 
sesses the  power  upon  good  cause 
and  in  good  faith  to  waive  a  strict 
compliance  with  its  terms. 

City  of  Chicago  v.  Fraser,  60  111. 
App.  404;  Kansas  City  v.  Hanson,  8 
Kan.  App.  290,  55  Pac.  513;  City 
of  Logansport  v.  Dykeman,  116  Ind. 
15;  Butler  v.  City  of  Charlestown, 
73  Mass.  (7  Gray)  12;  Municipal 
Signal  Co.  v.  City  of  Holyoke,  168 
Mass.  44,  46  N.  B.  397;  Thornton  v. 
Village  of  Sturgis,  38  Mich.  639; 
Common  Council  of  Detroit  v.  Pub- 
lic Lighting  Commission,  101  Mich. 
362,  59  N.  W.  654;  Chicago  Bridge 
&  Iron  Co.  v.  West  Bay  City,  129 
Mich.  65,  87  N.  W.  1032;  Saxton  v. 
City  of  St.  Joseph,  60  Mo.  153;  Bar- 
ber-Asphalt Pav.  Co.  v.  Hezel,  76  Mo. 
App.  135;  State  v.  Cowgill  &  Hill 
Mill.  Co.,  156  Mo.  620;  Fulton  v. 
City  of  Lincoln,  9  Neb.  358;  Ed- 
wards v.  City  of  Watertown,  61  How. 
Pr.  (N.  Y.)  463.  The  unauthorized 
action  of  a  subordinate  committee 
may  be  impliedly  ratified  through 
the  acceptance  of  the  results  by  the 
proper  authority. 

Weston  v.  City  of  Syracuse,  158 
N.  Y.  274,  43  L.  R.  A.  678.  Where 
the  power  to  carry  on  work  of  local 
improvement  is  delegated  to  the 
common  council,  it  may  waive  a 
strict  compliance  with  a  contract  au- 
thorized by  it.  Silsby  Mfg.  Co.  v. 
City  of  Allentown,  153  Pa.  319.  A 
city  council  may  adopt  and  ratify 
unauthorized  acts  of  a  committee  in- 
volving expenditures  of  moneys.  City 


of  Philadelphia  v.  Hays,  93  Pa.  72; 
McAleer  v.  Angell,  19  R.  I.  688,  36 
Atl.  588;  Marshall  v.  Com.,  59  Pa. 
455;  McKnight  v.  City  of  Pittsburg, 
91  Pa.  273. 

sis  Harding  v.  Vandewater,  40  Cal. 
77;  Stow  v.  Wyse,  7  Conn.  214,  18 
Am.  Dec.  99;  Mitchell  County  Sup'rs 
v.  Horton,  75  Iowa,  271;  Paola  &  F.  R. 
R.  Co.  v.  Anderson  County  Com'rs, 
16  Kan.  302;  Beaver  Creek  Tp.  v. 
Hastings,  52  Mich.  528;  Lord  v.  City 
of  Anoka,  36  Minn.  176;  People  v. 
Batchelor,  22  N.  Y.  128;  London  & 
New  York  Land  Co.  v.  City  of  Jel- 
lico,  103  Tenn.  320. 

sis  City  of  Lincoln  v.  Sun  Vapor 
St.  Light  Co.  (C.  C.  A.)  59  Fed. 
756;  Waterouse  Engine  Works  Co. 
v.  Town  of  Palmerston,  21  Can.  Sup. 
Ct.  556;  City  of  Denver  v.  Webber, 
15  Colo.  App.  511,  63  Pac.  804;  Mu- 
nicipal Signal  Co.  v.  City  of  Hol- 
yoke, 168  Mass.  44,  46  N.  E.  397. 
The  vote  awarding  a  contract  to  a 
certain  individual  without  other  nec- 
essary steps  being  taken  does  not 
of  itself  constitute  a  contract. 

Suburban  Elec.  Co.  v.  City  of  Eliz- 
abeth, 59  N.  J.  Law,  134,  36  Atl.  673; 
Christopher  v.  City  of  New  York, 
13  Barb.  (N.  Y.)  567;  De  Baun  v. 
City  of  New  York,  16  Barb.  (N.  Y.) 
392;  Graf  ton  v.  City  of  Sellwood, 
24  Or.  118,  32  Pac.  1026;  London  & 
New  York  Land  Co.  v.  City  of  Jel- 
lico,  103  Tenn.  320.  A  street  im- 
provement contract  authorized  by 
the  city  council  at  a  special  meet- 
ing of  which  some  of  the  members 
had  no  notice  cannot  be  enforced. 


616 


POWERS. 


§  2*.  7 


authority  to  execute  contracts  otherwise  legal  and  which  will  be 
binding  upon  the  public  corporation;  with  respect  to  duties  in- 
capable of  delegation  this,  however,  cannot  be  done.820 

§  277.    Contracts  made  by  departments. 

The  power  to  contract  with  reference  to  a  particular  matter 
may  be  granted  by  authority  of  law  to  special  departments  hav- 
ing charge  of  a  specific  branch  of  government.  Their  right  to 
bind  a  corporation  is  then  limited  to  those  matters  over  which 
they  are  thus  given  control.  Contracts  made  by  them  affecting 
expenditures  of  other  departments  of  government  or  questions 
over  which  they  have  no  control  or  a  questionable  one  are  not 


sao  Hill  v.  City  of  Indianapolis,  92 
Fed.  467.  A  contract  of  a  board  of 
public  works,  made  without  author- 
ity, can  be  subsequently  ratified  by 
the  city  council.  The  ratification  in 
such  case  will  be  considered  equiva- 
lent to  authority  originally  given. 

Town  of  Mt.  Vernon  v.  Patton,  94 
111.  65;  State  v.  Common  Council  of 
Michigan  City,  138  Ind.  455,  37  N. 
E.  1041;  Worthington  v.  City  of 
Covington,  82  Ky.  265;  Keller  v. 
Wilson,  90  Ky.  350;  Brackett  v.  City 
of  Boston,  157  Mass.  177. 

Advertiser  &  Tribune  Co.  v.  City 
of  Detroit,  43  Mich.  116.  Unless 
such  delegation  of  authority  has 
been  made,  the  implied  power  to 
modify  a  contract  is  not  possessed 
by  the  city  controller.  City  of  Bur- 
lington v.  Dennison,  42  N.  J.  Law, 
165;  Board  of  Finance  v.  Jersey  City 
Com'rs,  55  N.  J.  Law,  230. 

Hackett  v.  Rockingham  County, 
62  N.  H.  617.  A  delegation  of  au- 
thority, it  was  held  here,  did  not 
authorize  the  expenditure  of  money. 
In  re  Roberts,  25  Hun  (N.  Y.)  371; 
Francis  v.  City  of  Troy,  74  N.  Y. 
338.  The  delegation  of  authority 
may  be  found  in  the  city  charter. 
Dickerson  v.  Peters,  71  Pa.  53;  Reu- 
ting  v.  City  of  Titusville,  175  Pa. 


512;  A.  H.  Andrews  &  Co.  v.  Cur- 
tis, 2  Tex.  Civ.  App.  678;  Beal  v. 
City  of  Roanoke,  90  Va.  77,  17  S.  E. 
738.  Where  the  authority  to  con- 
tract is  delegated  to  several  sub- 
committees or  persons,  the  contract 
to  be  valid  must  be  concurrently 
made  by  all. 

821  Ballard  Pavement  Co.  v.  Man- 
del,  2  McArthur  (D.  C.)  351;  Bos- 
ton  Elec.  Co.  v.  City  of  Cambridge, 
163  Mass.  64,  39  N.  E.  787;  Chitten- 
den  v.  City  of  Lansing,  120  Mich. 
539,  79  N.  W.  797.  "Under  the  char- 
ter the  city  council  determines 
whether  it  will  build  a  public  build- 
ing. The  board  then  procures  plans 
and  specifications  and  reports  them 
with  an  estimate  of  cost,  to  the  coun- 
cil. Bids  are  advertised  for  but  be- 
fore a  contract  can  be  made  it  must 
be  authorized  by  the  council.  In 
this  case  the  council  authorized  a 
contract  to  be  made  binding  it  to  pay 
$108,000  for  the  construction  of  a 
building  according  to  certain  plans 
and  specifications.  The  board  of 
public  works  cannot  bind  the  city 
by  an  agreement  to  increase  the 
contract  price.  We  are  not  cited  to 
any  case  upholding  such  power.  If 
this  arrangement  binds  the  city, 
then  there  is  no  limit  to  the  power 


§  277 


POWER    TO    CONTRACT. 


617 


valid  and  binding.     This  principle  applies  to  boards  of  public 
works821  or  education,822  so  called,  police,823  water,  aqueduct,824  or 


of  the  board  to  make  changes  in 
material  and  construction  at  the 
public  expense.  We  feel  that  this  is 
a  hard  case  and  that  there  is  a 
moral  obligation  on  the  part  of  the 
city  to  pay  for  this  extra  which  the 
public  would  be  slow  to  forgive  a 
private  person  for  disregarding  but 
we  have  not  the  power  to  give  re- 
lief." 

822  Leonard  v.   Long   Island   City, 
65  Hun,  621,  20  N.  Y.  Supp.  26;  Pur- 
cell  v.   Long   Island   City,   91   Hun, 
271,  36  N.  Y.  Supp.  290;  Heughes  v. 
Board  of  Education  of  Rochester,  37 
App.  Div.  180,  55  N.  Y.  Supp.  799. 

823  Tucker  v.  Common  Council  of 
Grand  Rapids,  104  Mich.  621,  62  N. 
W.    1013.     "It  is   not   claimed  that 
any    statute    authorizes    sheriffs    or 
prosecuting    officers    to    make    con- 
tracts which  shall  bind  counties  for 
the  board   of  persons   who  may  be 
thought     important     witnesses     in 
pending    cases.      Such    officers   may 
sometimes  assume  the  responsibility 
of    incurring    expenditures    in    at- 
tempts to  convict  felons  which  the 
board  of  supervisors   may   in  their 
discretion  allow  but  the  courts  can- 
not compel  it  unless  the  claim  is  for 
services  which  the  statute  authorizes 
and    provides    for.      *      *      *     The 
statute    authorizes    payment    to    a 

sheriff  for  extraordinary  services  at 
the  discretion  of  the  board  and  this 
discretion  is  not  reviewable  though 
action  may  be  compelled  by  manda- 
mus where  the  right  and  amount  is 
fixed  by  statute.  *  *  *  Is  the 
matter  different  because  the  con- 
tract was  made  by  the  board  of  po- 
lice commissioners?  This  board  is  a 
statutory  one.  Not  only  must  it  be 
said  on  general  principles  that  it 


can  have  no  powers  to  contract  un- 
less prescribed  by  law  but  the  char- 
ter of  Grand  Rapids  provides  that: 
'Said  board  shall  not  be  authorized 
to  incur  any  indebtedness,  nor  enter 
into  any  contract  *  *  *  unless 
specially  authorized  so  to  do  by  a 
majority  vote  of  all  the  members 
elect  to  the  common  council  of  said 
city.'  *  *  *  The  absolute  prohi- 
bition of  unauthorized  contracts 
must  control.  The  council  may 
properly  allow  claims  for  unusual  or 
unexpected  services  where  such 
claims  are  meritorious  but  we  can- 
not compel  it  in  this  instance." 

824  Mann  v.  Town  of  Rochester,  29 
Ind.  App.  12,  63  N.  E.  874;  Morton 
v.  Power,  33  Minn.  521.  In  this  case 
section  five  of  the  act  under  discus- 
sion provides  that  "all  contracts  and 
engagements,  acts  and  doings  of  the 
said  board  within  the  scope  of  their 
duty  or  authority  shall  be  obligatory 
upon  and  be  in  law  as  binding  as  if 
done  by  the  common  council  of  said 
city."  Speaking  of  this  the  court 
said:  "In  our  judgment,  these  pro- 
visions of  the  act  referred  to  clear- 
ly invest  the  board  of  water  com- 
missioners with  authority  to  make 
contracts  with  reference  to  the  wa- 
terworks in  its  own  name  as  the 
representative  of  the  city.  *  *  * 
The  contracts  which  the  board  is 
thus  authorized  to  make,  though 
made  in  the  name  of  the  board,  are 
made  by  it  as  the  representative  and 
agent  of  the  city,  and  therefore,  they 
are,  in  substance  and  effect,  made 
with  as  well  as  for  the  city." 

United  New  Jersey  R.  &  Canal  Co. 
v.  National  Docks  &  N.  J.  J.  C.  R. 
Co.,  57  N.  J.  Law,  523,  21  Atl.  981; 
O'Brien  v.  City  of  New  York,  15  N. 


618 


POWERS. 


§  277 


street  commissioners825  or  special  boards,826  and  also  to  numerous 
organizations  or  departments  composed  of  more  than  one  official 
and  having  in  charge  the  affairs  of  a  township,  town,827  city,828 


Y.  Supp.  520;  O'Brien  v.  City  of 
New  York,  65  Hun,  112,  19  N.  Y. 
Supp.  793;  People  v.  Van  Nort,  64 
Barb.  (N.  Y.)  205;  Fleming  v.  Vil- 
lage of  Suspension  Bridge,  92  N.  Y. 
368;  Nicoll  v.  Sands,  131  N.  Y.  19; 
Village  of  Ft.  Edward  v.  Fish,  156 
N.  Y.  363;  Dunlap  v.  Erie  Water 
Com'rs,  151  Pa.  477. 

sas  Dyer  v.  Hudson,  65  Gal.  374; 
City  of  Hartford  v.  Hartford  Elec. 
Light  Co.,  65  Conn.  324.  The  board 
of  street  commissioners  under  the 
city  charter  have  power  to  contract 
with  the  light  company  for  the  sup- 
ply of  electricity,  the  contract  ex- 
tending over  a  period  of  five  years. 
People  v.  Town,  1  App.  Div.  127,  37 
N.  Y.  Supp.  864.  Tie  employment 
of  counsel  by  a  board  of  street  com- 
missioners held  unauthorized. 

People  v.  Waring,  5  App.  Div.  311, 
39  N.  Y.  Supp.  193,  distinguishing 
Lynch  v.  City  of  New  York,  2  App. 
Div.  213,  37  N.  Y.  Supp.  798.  The 
court  in  part  say:  "The  sole  ques- 
tion is  whether  the  contract  which 
is  to  be  made  by  the  commissioner 
must  be  approved  in  its  entirety  by 
the  board  of  estimate  and  apportion- 
ment so  that  they  have  substantially 
a  veto  upon  the  power  of  the  com- 
missioner to  execute  the  contract 
after  the  proposals  have  been  issued, 
the  bids  made  and  the  successful 
bidder  named  in  his  bid  accepted. 
*  *  *  The  act  of  the  board  of 
estimate  and  apportionment  in  ap- 
proving a  form  of  contract  before 
the  proposals  were  made  and  the 
bid  accepted  was  not  one  which  was 
within  its  duty,  nor  did  it  bind  ei- 
ther the  commissioner  in  framing 


the  proposals  or  the  board  in  its 
final  action  upon  the  perfected  con- 
tract. The  street  cleaning  commis- 
sioner was  still  at  liberty  in  put- 
ting out  his  proposals  to  include 
within  them  such  terms  and  condi- 
tions as  he  saw  fit;  and  although  he 
may  have  been  willing  to  adopt,  so 
far  as  it  should  go,  the  form  of 
contract  which  had  theretofore 
been  approved  by  the  board  of  esti- 
mate and  apportionment  for  pur- 
poses of  convenience,  still  it  was 
not  an  act  which  the  law  required, 
or  even  authorized,  the  board  of  es- 
timate and.  apportionment  to  do  in 
such  a  way  as  to  bind  it  when  the 
final  contract  came  up  to  be  pre- 
sented to  it  for  approval;  and  that 
it  did  so  cannot  be  regarded  as  of 
importance  here." 

sae  Lower  Kings  River  Reclama- 
tion Dist.  v.  McCullah,  124  Cal.  175; 
New  York,  N.  H.  &  H.  R.  Co.  v. 
Wheeler,  72  Conn.  481;  Sampson  v. 
City  of  Boston,  161  Mass.  288,  37  N. 
E.  177;  State  v.  McCardy,  62  Minn. 
509,  64  N.  W.  1133;  City  of  Cleve- 
land v.  State  Bank,  16  Ohio  St.  236; 
City  of  Findlay  v.  Pendleton,  62 
Ohio  St.  80. 

827  Town  of  Rocky  Hill  v.  Hollis- 
ter,  59  Conn.  434;  Davenport  v.  In- 
habitants of  Hallowell,  10  Me.  (1 
Fairf.)  317;  Inhabitants  of  Industry 
v.  Inhabitants  of  Starks,  65  Me.  167; 
Farr  v.  Inhabitants  of  Ware,  173 
Mass.  403,  53  N.  E.  898;  Murdotigh 
v.  Inhabitants  of  Revere,  165  Mass. 
109;  Jenney  v.  Mussey  Tp.,  121 
Mich.  229,  80  N.  W.  2;  White  v. 
Town  of  Ellisburgh,  18  App.  Div. 
514,  45  N.  Y.  Supp.  1122;  Mills  v. 


§  277 


POWER    TO    CONTRACT. 


619 


Village  of  East  Syracuse,  20  Misc. 
651,  46  N.  Y.  Supp.  1080;  Paine  v. 
Caldwell,  65  N.  C.  488;  Cook  v. 
Deerfield  Tp.,  64  Pa.  445.  Road  su- 
pervisors are  the  authorized  agents 
of  a  township  for  the  general  repair 
of  the  roads. 

Van  Antwerp  v.  Dell  Rapids  Tp., 
5  S.  D.  447,  59  N.  W.  209,  affirming 
3  S.  D.  305,  53  N.  W.  82,  and  citing 
Salem  Mill  Dam  Corp.  v.  Ropes,  23 
Mass.  (6  Pick.)  23;  Inhabitants  of 
Fourth  School  Dist.  v.  Wood,  13 
Mass.  193;  Loker  v.  Inhabitants  of 
Brookline,  30  Mass.  (13  Pick.)  343; 
Hooper  v.  Emery,  14  Me.  375;  Chee- 
ney  v.  Inhabitants  of  Brookfield,  60 
Mo.  53;  Carlton  v.  Bath,  22  N.  H. 
(2  Fost.)  559;  Van  Sicklen  v.  Town 
of  Burlington,  27  Vt.  70.  The  court 
say:  "Towns  being  corporations 
possessing  only  limited  powers,  it 
seems  to  have  been  the  policy  of  all 
the  courts  to  give  to  those  powers  a 
strict  construction.  As  we  have 
seen,  no  duty  is  imposed  upon  the 
town,  or  its  board  of  supervisors  to 
survey  the  highways  therein.  The 
contention  of  counsel  that  this  court 
cannot  say,  from  the  record  in  this 
case,  that  the  survey  may  not  have 
been  for  some  purpose  recognized 
by  the  statute  is  untenable,  as  nei- 
ther of  the  surveys  provided  for  by 
the  statute  is  for  highways  but  for 
proposed  townships  and  cart  roads; 
and  the  complaint  seems  to  have 
been  drawn  and  the  case  tried,  ar- 
gued and  submitted,  upon  the  theory 
that  the  survey  contracted  for  was 
a  re-survey  of  all  the  highways  of 
the  township,  including  the  state 
and  county  roads.  We  are  of  the 
opinion,  therefore,  that  this  is  the 
only  theory  upon  which  the  case 
can  now  be  considered,  from  the  rec- 
ord in  this  case.  Taking  the  view 
that  neither  the  electors  of  the  town 


nor  the  township  board  of  super- 
visors possessed  the  power  to  em- 
ploy the  plaintiff  to  make  the  sur- 
veys lor  which  he  seeks  by  this  ac- 
tion to  recover  payment,  we  must 
hold  the  contract  alleged,  unauthor- 
ized and  void." 

828  Kraft  v.  Board  of  Education  of 
Weehawken  Tp.,  67  N.  J.  Law,  512, 
51  Atl.  483;  Coward  v.  City  of  Bay- 
onne,  67  N.  J.  Law,  470,  51  Atl.  490. 
Where  the  authority  exists  a  con- 
tract will  not  be  set  aside  unless  the 
evidence  clearly  shows  fraud  or  an 
abuse  of  discretionary  powers.  The 
court  say:  "The  board  of  education 
of  Bayonne  is  not  required  by  the 
charter  of  that  city,  or  by  any  gen- 
eral law  of  the  state,  to  advertise 
for  proposals  for  doing  any  of  the 
work  which  they  are  authorized  to 
do.  The  only  provision  is  in  sec- 
tion ninety-one  of  the  charter  and 
although  the  board  did  actually  ad- 
vertise for  proposals,  they  were  not 
required  to  award  the  contract  to 
the  lowest  bidder  and  the  award  of 
the  contract  to  a  higher  or  the  high- 
est bidder  or  to  some  one  who 
did  not  bid  at  all,  would  not  in 
the  absence  of  bad  faith  and  cor- 
ruption, be  regarded  as  such  an 
abuse  of  that  discretion  conferred 
upon  them  by  law  as  to  justify  in- 
terference by  this  court.  *  *  * 
And  after  the  bids  had  been  re- 
ceived there  was  nothing  to  prevent 
the  board  from  so  modifying  the 
specifications  that  a  better  contract 
might  be  made  for  the  city.  The 
board  had  the  right  to  purchase  for 
use  in  the  building,  any  article  or 
apparatus  of  a  specific  make,  even 
though  it  was  patented  or  the  pro- 
duct of  an  exclusive  manufacture. 
Nor  do  we  think  that  a  statement 
in  the  advertisement  that  only  union 
labor  should  be  employed,  such  a 


620 


POWERS. 


county,829  and  variously  designated  throughout  the  United  States 
as  "Village,"  or  "Town  trustees,"  "Township  supervisors,"  "Se- 


condition  not  being  contained  in  the 
contract,  would  vitiate  the  contract. 
The  evidence  fails  to  disclose  that 
the  board  of  education  had  any  mo- 
tive in  awarding  the  contract,  other 
than  that  of  making  the  best  bar- 
gain possible  for  the  city.  We  think 
that  they  exercised  the  discretion 
conferred  upon  them  by  law  with 
good  faith  and  t.onesty." 

Oakley  v.  Atlantic  City,  63  N.  J. 
Law,  127.  A  municipal  body  may 
award  a  contract  independently  of 
the  proposals  it  has  invited  if  it  has 
regard  to  the  public  good. 

829  Times  Pub.  Co.  v.  Alameda 
County,  64  Cal.  469;  Wood  v.  Bangs, 
1  Dak.  179.  Injunction  will  not  lie 
to  restrain  the  issue  of  warrants  in 
payment  for  work  done  in  construct- 
ing county  buildings  where  the  con- 
tract of  construction  was  in  excess 
of  the  authority  of  the  County  Com- 
missioners. 

Wheeler  v.  Wayne  County,  31  111. 
App.  299,  affirmed  132  111.  599;  Gil- 
lett  v.  Logan  County  Sup'rs,  67  111. 
256;  Kitchell  v.  Union  County 
Com'rs,  123  Ind.  540,  24  N.  E.  366; 
Burnett  v.  Abbott,  51  Ind.  254. 
County  commissioners  have  no  pow- 
er to  enter  into  contracts  for  boring 
oil  wells. 

Conner  v.  Franklin  County  Sup'rs, 
57  Ind.  15;  Harrison  County  Com'rs 
v.  Byrne,  67  Ind.  21;  Grant  County 
Com'rs  v.  Bradford,  72  Ind.  455.  A 
contract  is  ultra  vires  made  by  a 
County  board  for  the  purpose  of 
aiding  in  the  arrest,  prosecution  or 
conviction  of  a  person  charged  with 
crime. 

Clinton  County  Com'rs  v.  Hill,  122 
Ind.  215;  Perry  County  Com'rs  v. 
Gardner,  155  Ind.  165.  A  contract 
by  the  county  commissioners  for  an 


investigation  of  the  treasurer's 
books  is  valid. 

Fouke  v.  Jackson  County,  84  Iowa, 
616,  51  N.  W.  71;  Leavenworth  Coun- 
ty Com'rs  v.  Keller,  6  Kan.  510; 
Mitchell  v.  Leavenworth  County 
Com'rs.,  18  Kan.  188.  The  authority 
of  the  county  commissioners  ex- 
tends to  the  hiring  of  guards  for 
the  county  jail. 

Dixon  v.  Greene  County,  76  Miss. 
794,  25  So.  665.  A  delegation  of 
authority  to  modify  a  contract  can- 
not be  made  by  the  county  board  of 
supervisors, 

George  v.  Cleveland,  53  Neb. 
716;  Keith  County  v.  Ogalalla  Pow- 
er &  Irr.  Co.,  64  Neb.  35,  89  N. 
W.  375;  Clarke  v.  Lyon  County,  7 
Nev.  75.  A  partial  allowance  by 
county  commissioners  of  a  claim  pre- 
sented to  them  does  not  of  itself 
amount  to  a  ratification  of  the  con- 
tract. Orleans  County  Sup'rs  v. 
Bowen,  4  Lans.  (N.  Y.)  24.  The 
power  to  contract  usually  includes 
the  power  to  compromise. 

Chosen  Freeholders  of  Hudson 
County  v.  Layton,  28  N.  J.  Law  (4 
Dutch.)  244;  Schenck  v.  City  of 
New  York,  67  N.  Y.  44.  The  im- 
plied authority  exists  in  a  board  of 
supervisors  to  purchase  articles  nec- 
essary to  properly  equip  and  furnish 
a  county  jail. 

People  v.  Livingston  County 
Sup'rs,  68  N.  Y.  114.  An  invalid 
contract  because  not  duly  approved 
by  the  county  authorities  may  be 
subsequently  ratified  by  the  legisla- 
ture. 

Cleveland  Cotton  Mills  v.  Cleve- 
land County  Com'rs,  108  N.  C.  678; 
Buchanan  Bridge  Co.  v.  Campbell, 
60  Ohio  St.  406;  Broomall's  Appeal, 


§  277 


POWER    TO    CONTRACT. 


lectmen,"  "County  commissioners,"  "Commissioners  of  high- 
ways," "Board  of  supervisors,"  or  other  designated  names.  It 
is  also  true  that  such  authority  when  exercised  must  be  in  the 
manner,  at  the  time  and  in  the  place,  prescribed  by  law.830 


75  Pa.  173;  Polly  v.  Hopkins,  74  Tex. 
145,  11  S.  W.  1084;  Russell  v.  Cage, 
66  Tex.  428.  Authority  for  the  per- 
formance of  discretionary  acts  can- 
not be  delegated. 

Smith  v.  Barren  County  Sup'rs,  44 
Wis.  686.  "The  contract  set  out  is 
incomplete,  uncertain  and  execu- 
tory." "If  then,  the  board  of  super- 
visors authorized  the  making  of  the 
contract  set  out  in  the  complaint 
(and  we  must  assume  they  did  for 
the  purposes  of  this  demurrer)  they 
acted  without  authority,  and,  as  we 
think,  in  violation  of  law  and  their 
action  in  this  respect  was  ultra 
vires  and  void  and  conferred  no  au- 
thority whatever  upon  the  county 
treasurer  to  enter  into  this  contract. 
It  follows  as  a  clear  legal  conse- 
quence from  this  position,  that  the 
county  treasurer  received  of  the 
plaintiff  the  two  hundred  dollars 
paid  or  advanced  upon  this  illegal 
contract,  not  as  a  public  officer,  or 
in  his  official  character  as  county 
treasurer  acting  within  the  scope  of 
his  authority  so  as  to  bind  the  coun- 
ty and  make  this  money  so  received 
a  part  of  the  funds  of  the  county  in 
his  hands  as  such  treasurer,  but  as 
an  individual  and  private  person; 
and  he  alone  is  liable  (if  he  is  lia- 
ble) to  refund  it  upon  the  failure  of 
the  consideration  or  for  the  want  of 
it."  Putney  Bros.  Co.  v.  Milwaukee 
County,  108  Wis.  554,  84  N.  W.  822. 

That  County  Commissioners  or  Su- 
pervisors generally  have  the  power 
to  employ  counsel  on  behalf  of  the 
county  in  litigation  affecting  it,  see 
the  following  cases:  Hopkins  v. 


Clayton  County,  32  Iowa,  15;  Thach- 
er  v.  Jefferson  County  Sup'rs,  13 
Kan.  182;  Garrard  County  Ct.  v. 
McKee,  74  Ky.  (11  Bush)  234;  Tal- 
bott  v.  Parish  of  Iberville,  24  La. 
Ann.  135;  Ellis  v.  Washoe  County, 
7  Nev.  291;  People  v.  Delaware 
County  Sup'rs,  45  N.  Y.  196;  State 
v.  Franklin  County  Com'rs,  21  Ohio 
St.  648. 

sso  Babcock  v.  Goodrich,  47  Cal. 
488.  A  contract  signed  by  the  chair- 
man of  the  board  of  supervisors  and 
entered  into  by  the  board  on  behalf 
of  the  county  is  binding. 

Arapahoe  County  Com'rs  v.  Clapp, 
9  Colo.  App.  161,  48  Pac.  157.  A 
mere  resolution  of  county  commis- 
sioners without  specifying  a  definite 
length  of  time  does  not  create  a  con- 
tract of  employment. 

Matthews  v.  Cook  County  Com'rs, 
87  111.  590.  Action  taken  by  county 
commissioners  not  in  accordance 
with  established  rules  of  proceeding, 
not  binding  on  the  county. 

Potts  v.  Henderson,  2  Ind.  327. 
Contract  should  be  made  by  the 
county  at  a  regular  session.  Cass 
County  Com'rs  v.  Ross,  46  Ind.  404; 
McCabe  v.  Fountain  County  Com'rs, 
46  Ind.  380.  There  must  be  a  con- 
current act  of  a  majority  of  the 
county  commissioners  at  a  legal  ses- 
sion to  constitute  a  valid  contract. 

Curtis  v.  City  of  Portland,  59  Me. 
483.  A  contract  should  be  signed  by 
a  majority  of  a  committee  having 
in  charge  street  improvements. 
Fullam  v.  Inhabitants  of  West 
Brookfield,  91  Mass.  (9  Allen)  1; 


622 


§  278 


§  278.    Made  by  public  officials. 

The  principle  stated  in  the  preceding  sections  that  the  author- 
ity of  an  agent  or  official  of  a  public  corporation  is  special,  lim- 
ited and  restricted  in  its  character,  applies  in  the  making  of  con- 
tracts to  individual  officers  of  such  corporations  having  charge 
of  some  designated  branch  of  public  service,  whether  such  offi- 
cers represent  political  organizations  dignified  by  the  name  of 
"City"831  or  those  designated  as  a  "Township,"  or  "Town,"832 
"County,"833  "Highway,"834  "Scho'ol  district,"835  or  other  subor- 
dinate political  public  quasi  corporation.836 


Jefferson  County  Sup'rs  v.  Arrighi, 
54  Miss.  668;  Merrick  County  Com'rs 
v.  Batty,  10  Neb.  176.  Contracts  by 
the  county  commissioners  should  be 
made  at  the  county  seat. 

McDonald  v.  City  of  New  York,  68 
N.  Y.  23,  23  Am.  Kep.  144;  Parr  v. 
Village  of  Greenbush,  72  N.  Y.  463. 
A  contract  stating  that  it  was  made 
by  the  president  and  trustees  of  the 
"corporation,"  sufficient  in  its  terms 
to  bind  the  village.  Dunlap  v.  Erie 
Water  Com'rs,  151  Pa.  477.  Where, 
however,  the  statute  does  not  desig- 
nate the  manner  or  the  place  of 
making  contracts  by  such  a  board, 
those  made  by  them  as  a  board  al- 
though not  at  their  office  are  valid. 

83i  Buckman  v.  Ferguson,  108  Cal. 
33,  40  Pac.  1057;  Ede  v.  Cogswell, 
79  Cal.  278;  Town  of  Madison  v. 
Newsome,  39  Fla.  149;  Michigan 
City  v.  Leeds,  24  Ind.  App.  271,  55 
N.  E.  799;  Robinson  v.  City  of  St. 
Louis,  28  Mo.  488;  Campbell  v.  City 
of  St.  Louis,  71  Mo.  106;  Randall  v. 
Van  Vechten,  19  Johns.  (N.  Y.)  60, 
10  Am.  Dec.  193;  Horgan  v.  City  of 
New  York,  21  App.  Div.  405,  47  N.  Y. 
Supp.  580;  Barnes  v.  City  of  Phila- 
delphia, 3  Phila.  (Pa.)  409;  Provi- 
dence v.  Miller,  11  R.  I.  272;  Wil- 
loughby  v.  City  of  Florence,  51  S.  C. 
462,  29  S.  E.  242;  Indiana  Road 


Mach.  Co.  v.  City  of  Sulphur 
Springs  (Tex.  Civ.  App.)  63  S.  W. 
908;  Bardsley  v.  Sternberg,  17  Wash. 
243. 

s32Boyd  v.  Black  School  Tp.,  123 
Ind.  1,  23  N.  E.  862;  State  v.  Foun- 
tain County  Com'rs,  147  Ind.  235,  46 
N.  E.  525.  A  township  is  not  liable 
for  the  hire  of  a  conveyance  used 
by  a  township  trustee  in  the  per- 
formance of  his  official  duties. 

Jackson  Tp.  v.  Home  Ins.  Co.,  54 
Ind.  184;  Strafford  v.  Welch,  59  N. 
H.  46;  De  Forest  v.  Walters,  78  Hun, 
611,  28  N.  Y.  Supp.  831;  Paine  v. 
Caldwell,  65  N.  C.  488;  Somerset 
Tp.  v.  Parson,  105  Pa.  360;  Hunkins 
v.  Town  of  Johnson,  45  Vt.  131. 

sss  Price  v.  Chosen  Freeholders  of 
Passaic  County,  96  Fed.  174;  Dick- 
erson  Hardware  Co.  v.  Pulaski  Coun- 
ty, 55  Ark.  437;  Frandzen  v.  San 
Diego  County,  101  Cal.  317,  35  Pac. 
897;  Babcock  v.  Goodrich,  47  Cal. 
488;  Barnard  v.  Sangamon  County, 
91  111.  App.  98;  Brown  v.  Bartholo- 
mew County  Com'rs,  5  Ind.  App.  75, 
31  N.  E.  811.  The  rule  applied  to  a 
contract  for  the  publication  of  the 
county's  annual  financial  report. 

Carroll  County  Com'rs  v.  O'Con- 
nor, 137  Ind.  622,  35  N.  E.  1006,  37 
N.  E.  16;  Hamilton  County  Com'rs 
v.  Webb,  47  Kan.  104;  People  v. 


§  279 


POWER    TO    CONTRACT. 


623 


§  279.     The  ratification  of  an  illegal  contract. 

A  contract  may,  because  of  some  irregularity  or  informality 
in  the  manner  or  time  of  its  execution,  be  illegal  because  defect- 
ive and,  therefore,  incapable  of  enforcement.  Such  a  contract, 
the  authorities  hold,  may  be  ratified  either  by  an  acceptance  of  the 
benefits  of  the  contract  by  the  public  corporation,837  by  the  sub- 


Cortland  County  Sup'rs,  58  Barb.  (N. 
Y.)  139;  People  v.  Cayuga  County 
Sup'rs,  22  Misc.  616,  50  N.  Y.  Supp. 
16;  Fornoff  v.  Nash,  23  Ohio  St. 
335;  Olympian-Tribune  Pub.  Co.  v. 
Byrne,  28  Wash.  79,  68  Pac.  335; 
Hoffman  v.  Chippewa  County,  77 
Wis.  214,  45  N.  W.  1083,  8  L.  R.  A. 
781.  "The  answer  shows  that  the 
plaintiffs  filed  with  the  county  clerk 
an  offer,  in  writing,  to  print  the  de- 
linquent list  in  their  paper  for  three 
cents  for  each  description,  and  ten- 
dered a  bond  for  the  faithful  per- 
formance of  the  work.  On  the  good 
faith  of  this  offer  or  proposition  the 
clerk  doubtless  entered  into  the  con- 
tract which  he  made  with  them. 
*  *  *  For  reasons  satisfactory  to 
the  legislature,  it  saw  fit  to  pre- 
scribe the  amount  of  compensation 
(thirty  cents  a  description)  which 
the  printer  should  receive  for  the 
service.  Whether  it  was  thought 
that  this  compensation  would  secure 
better  service,  or  greater  faithful- 
ness in  the  execution  of  the  work, 
we  cannot  tell.  It  is  sufficient  to 
say  that  the  law  is  so  enacted  and 
the  courts  must  conform  to  it." 

834Crabtree  v.  Gibson,  78  Ga.  230; 
Bean  v.  Inhabitants  of  Hyde  Park, 
143  Mass.  245;  McDonald  v.  City  of 
New  York,  1  Hun  (N.  Y.)  719;  Hug- 
gans  v.  Riley,  51  Hun  (N.  Y.)  501; 
Reilly  v.  City  of  Albany,  112  N.  Y. 
30;  Davis  v.  Wayne  County  Ct,  38 
W.  Va.  104. 

sss  Honey    Creek    School    Tp.    v. 


Barnes,  119  Ind.  213;  Roseboom  v 
Jefferson  School  Tp.,  122  Ind.  377; 
Briggs  v.  Borden,  71  Mich.  87. 

sso  Sanitary  Dist.  of  Chicago  v. 
Ricker  (C.  C.  A.)  91  Fed.  833,  re- 
versing 89  Fed.  251.  The  principlo 
applied  to  the  chief  engineer  of  the 
Sanitary  District  of  Chicago. 

SST  Frick  v.  Town  of  Brinkley,  61 
Ark.  397;  Argenti  v.  City  of  San 
Francisco,  16  Cal.  255;  Sacramento 
County  v.  Southern  Pac.  Co.,  127 
Cal.  217;  Town  of  Rocky  Hill  v. 
Hollister,  59  Conn.  434;  McGuire  v. 
Rapid  City,  6  Dak.  346;  National 
Tube-Works  Co.  v.  City  of  Chamber- 
lain, 5  Dak.  54;  City  of  Conyers  v. 
Kirk,  78  Ga.  480;  Jackson  County  v. 
Hall,  53  111.  440;  Frederick  v.  Peo- 
ple, 83  111.  App.  89;  City  of  Chicago 
v.  McKechney,  91  111.  App.  442;  City 
of  Chicago  v.  Norton  Mill.  Co.,  196 
111.  580;  Carroll  County  Com'rs  v. 
O'Connor,  137  Ind.  622,  35  N.  E. 
1006,  37  N.  E.  16;  City  of  Logans- 
port  v.  Dykeman,  116  Ind.  15;  Hard 
v.  City  of  Decorah,  43  Iowa,  313; 
Cooper  v.  City  of  Cedar  Rapids,  112 
Iowa,  367,  83  N.  W.  1050;  Mound 
City  v.  Snoddy,  53  Kan.  126,  35  Pac. 
1112;  Pigrau  v.  Guillotte,  14  La. 
Ann.  297;  Brown  v.  Inhabitants  of 
Winterport,  79  Me.  305,  9  Atl.  844; 
Fisher  v.  Inhabitants  of  School  Dist. 
No.  17,  58  Mass.  (4  Gush.)  494;  In- 
habitants of  Melrose  v.  Hiland,  163 
Mass.  303,  39  N.  E.  1031;  Roberts  v. 
City  of  Cambridge,  164  Mass.  176, 
41  N.  E.  230;  Aurora  Water  Co.  v* 


624 


POWERS. 


§  279 


sequent  performance  of  those  acts  and  conditions  required  by 
law  in  t^e  execution  of  a  legal  contract,838  or  by  acquiescence 


City  of  Aurora,  129  Mo.  540;  Lan- 
caster v.  Armstrong,  56  Mo.  298; 
Devers  v.  Howard,  88  Mo.  App.  253; 
State  v.  City  of  Great  Falls,  19  Mont 
5J.8,  49  Pac.  15;  Lyman  v.  City  of 
Lincoln,  38  Neb.  694;  New  Jersey 
Car-Spring  &  Rubber  Co.  v.  Jersey 
City,  64  N.  J.  Law,  544,  46  Atl.  649; 
Keyset  v.  School  Dist.  No.  8,  35  N. 
H.  477;  Backman  v.  Town  of 
Charlestown,  42  N.  H.  125;  City  of 
New  York  v.  Sonneborn,  113  N.  Y. 
423;  City  of  Buffalo  v.  Bettinger,  76 
N.  Y.  393;  Kent  v.  Village  of  North 
Tarrytown,  50  App.  Div.  502,  64  N. 
Y.  Supp.  178;  Beers  v.  Dallas  City, 
16  Or.  334;  Allegheny  City  v.  Mc- 
Clurkan,  14  Pa.  81;  Sicilian  Asphalt 
Pav.  Co.  v.  City  of  Williamsport, 
186  Pa.  256,  40  Atl.  471;  City  of  Dal- 
las v.  Martyn,  29  Tex.  Civ.  App. 
201,  68  S.  W.  710. 

Norton  v.  City  of  Roslyn,  10 
Wash.  44.  The  acceptance  of  work 
by  a  municipality  results  in  a  waiv- 
er of  its  right  to  declare  the  con- 
tract forfeited  under  which  the  work 
was  done.  Kneeland  v.  Oilman,  24 
Wis.  39.  But  in  Turney  v.  Town  of 
Bridgeport,  55  Conn.  412,  it  is  held 
that  the  use  and  possession  of  a 
school  house  is  not  such  a  ratifica- 
tion of  unauthorized  expenditures 
made  in  its  erection  as  will  create  a 
liability  on  the  part  of  the  town. 

sss  Daviess  County  v.  Dickinson, 
117  U.  S.  657;  Town  of  Bloomfield  v. 
Charter  Oak  Bank,  121  U.  S.  121; 
City  of  Findlay  v.  Pertz  (C.  C.  A.) 
66  Fed.  427,  29  L.  R.  A.  188;  Hill 
v.  City  of  Indianapolis,  92  Fed.  467; 
Zottman  v.  City  &  County  of  San 
Francisco,  20  Cal.  96;  Pimental  v. 
City  of  San  Francisco,  21  Cal.  351; 
Town  of  Durango  v.  Pennington,  8 


Colo.  257;  City  of  Indianapolis  v. 
Wann,  144  Ind.  175,  31  L.  R.  A.  743. 
A  contract  void  because  of  an  in- 
sufficient appropriation  cannot  be 
ratified  by  subsequent  action.  See 
however,  the  case  of  Gutta  Percha  & 
Rubber  Mfg.  Co.  v.  Village  of  Oga- 
lalla,  40  Neb.  775,  to  the  contrary. 

McPherson  v.  Foster,  43  Iowa,  48; 
Newman  v.  City  of  Emporia,  32  Kan 
456;  Hanson  v.  Inhabitants  of  Dex- 
ter,  36  Me.  516;  Crutchfield  v.  City 
of  Warrensburg,  30  Mo.  App.  345. 

Gutta  Percha  &  Rubber  Mfg.  Co. 
v.  Village  of  Ogalalla,  40  Neb.  775. 
"The  cases  bearing  upon  the  quesr 
tion  of  the  power  of  municipal  cor- 
porations to  ratify  their  unauthor- 
ized contracts  are  confusing,  and  ap- 
parently irreconcilable.  It  would 
subserve  no  useful  purpose  to  ex- 
amine them  at  length  in  this  con- 
nection, or  to  attempt  a  statement 
of  the  grounds  upon  which  they 
rest.  It  is  sufficient  that  there  is 
one  principle  which  seems  to  run 
through  them  all,  namely;  if  a  con- 
tract is  invalid  when  made,  be- 
cause in  violation  of  some  manda- 
tory requirement  of  statute,  it  will 
be  deemed  ultra  vires,  and  can  be 
ratified  only  upon  the  conditions  es- 
sential to  a  valid  agreement  in  the 
first  instance.  But  where  the  for- 
'  malities  prescribed,  or  conditions 
imposed  are  not  intended  as  a  re- 
striction upon  the  corporate  power, 
a  binding  ratification  may  be  made 
in  a  different  mode.  McCracken  v. 
City  of  San  Francisco,  16  Cal.  591; 
San  Diego  Water  Co.  v.  City  of  San 
Diego,  59  Cal.  517;  Town  of  Du- 
rango v.  Pennington,  8  Colo.  257; 
Newman  v.  City  of  Emporia,  32  Kan. 
456;  Tullock  v.  Webster  County,  46 


§  279 


POWER    TO    CONTRACT. 


625 


in  existing  conditions,  or  by  operation  of  the  doctrine  of  estoppel 
through  silence  or  conduct  other  than  that  already  suggested.839 
There  is  authority  for  the  doctrine  that  a  public  corporation  can 
be  bound  by  action  not  expressly  authorized  in  its  charter.  If 
it  permit  its  officials  or  agents  to  execute  contracts  or  act  in  its 
name  and  for  its  benefit,  good  faith  and  honesty  require  that  it 
prevent  the  doing  of  these  acts  or  that  it  should  not  deceive  the 


Neb.  211;  Agawam  Nat.  Bank  v.  In- 
habitants of  South  Hadley,  128 
Mass.  503;  McBrian  v.  City  of  Grand 
Rapids,  56  Mich.  103;  Cory  v.  Cho- 
sen Freeholders  of  Somerset  Coun- 
ty, 44  N.  J.  Law,  445;  and  Keeney 
v.  Jersey  City,  47  N.  J.  Law,  449." 

Lincoln  Land  Co.  v.  Village  of 
Grant,  57  Neb.  70,  77  N.  W.  349.  It 
is  not  necessary  to  a  recovery  where 
there  has  been  an  acceptance  of  the 
benefits  to  show  a  ratification. 
There  will  be  a  liability  on  the  part 
of  the  public  corporation  based  upon 
a  quantum  meruit.  Squire  v.  Cart- 
wright,  67  Hun  (N.  Y.)  218;  Smith 
v.  City  of  Newburgh,  77  N.  Y.  130; 
Nelsgn-v.  City  of  New  York,  131  N. 
Y.  4;  Penn  v.  City  of  Laredo  (Tex. 
Civ.  App.)  26  S.  W.  636;  Arnott  v. 
City  of  Spokane,  6  Wash.  442;  Dul- 
lanty  v.  Town  of  Vaughn,  77  Wis. 
38. 

SSQ  Randolph  County  v.  Post,  93  U. 
S.  502;  City  of  Findley  v.  Pertz,  66 
Fed.  427,  29  L.  R.  A.  188;  Town  of 
Searcy  v.  Yarnell,  47  Ark.  269;  Peo- 
ple v.  Swift,  31  Cal.  26;  City  of 
Shawneetown  v.  Baker,  85  111.  563; 
Wilhelm  v.  Cedar  County,  50  Iowa, 
254;  King  v.  Mahaska  County,  75 
Iowa,  329;  Sleeper  v.  Bullen,  6  Kan. 
300;  Mound  City  v.  Snoddy,  53  Kan. 
126;  City  of  New  Orleans  v.  South- 
ern Bank,  31  La.  Ann.  560;  Sceery 
v.  City  of  Springfield,  112  Mass.  512; 
Roberts  v.  City  of  Cambridge,  164 
Mass.  176;  Davis  v.  City  of  Jackson, 
61  Mich.  530;  Spitzer  v.  Village  of 


Blanchard,  82  Mich.  234.  But  no 
implied  liability  will  arise  by  rea- 
son of  a  resolution  of  acceptance  of 
commodities  furnished  passed  at  a 
special  meeting  of  the  village  coun- 
cil not  legally  called. 

Schumm  v.  Seymour,  24  N.  J.  Eq. 
(9  C.  E.  Green)  143;  Cory  v.  Chosen 
Freeholders  of  Somerset  County,  44 
N.  J.  Law,  445;  Peterson  v.  City  of 
New  York,  17  N.  Y.  449;  Moore  v. 
City  of  New  York,  73  N.  Y.  238; 
Albany  City  Nat.  Bank  v.  City  of 
Albany,  92  N.  Y.  363;  Silsby  Mfg. 
Co.  v.  City  of  Allentown,  153  Pa. 
319;  Mathewson  v.  Tripp,  14  R.  I. 
587;  Pope  Mfg.  Co.  v.  Granger,  21 
R.  I.  298;  City  of  Nashville  v.  Ha- 
gan,  68  Tenn.  (9  Baxt.)  495.  A 
failure  on  the  part  of  a  municipality 
to  disaffirm  within  a  reasonable  time 
an  unauthorized  contract  made  by 
a  subordinate  committee  will  not 
constitute  a  ratification. 

Brennan  v.  City  of  Weatherford, 
53  Tex.  330.  Where  a  municipality 
by  its  own  acts  is  estopped  to  deny 
its  corporate  existence  in  a  collat- 
eral proceeding,  the  same  doctrine 
operates  to  prevent  the  same  claim 
from  being  made  by  members  of 
that  community. 

Barton  v.  Town  of  Pittsford,  44 
Vt.  371.  A  settlement  of  an  unau- 
thorized account  is  not  a  ratifica- 
tion of  an  unauthorized  purchase. 
Judevine  v.  Town  of  Hardwick,  49 
Vt.  180;  Koch  v.  City  of  Milwaukee, 
89  Wis.  220. 


Abb.  Corp. — 40. 


626 


POWERS. 


§  280 


public  and  allow  them  to  trust  in  the  unauthorized  acts  of  its 
agents.  This  rule  is  especially  applicable  where  the  acts  or  con- 
tracts are  such  as  come  within  the  usual  exercise  of  the  powers 
and  duties  of  a  public  corporation.840  The  general  rule  obtains, 
however,  that  a  public  corporation  cannot  be  estopped  by  the 
unauthorized  acts  of  its  officers  or  agents.841 

§  280.    Ratification  of  a  contract  ultra  vires. 

The  principles  stated  in  the  preceding  section  do  not  apply  to 
an  ultra  vires  contract.  If  there  is  no  legal  authority  for  the 
contract,  that  authority  cannot  be  created  through  the  applica- 
tion of  any  doctrine  or  principle  of  estoppel,  acceptance  or  rati- 
fication. The  contract  cannot  be  enforced.842  The  courts  rec- 


8<o  Rogers  v.  City  of  Burlington, 
70  U.  S.  (3  Wall.)  654;  The  Maggie 
P.,  25  Fed.  202;  Norwalk  Gaslight 
Co.  v.  Borough  of  Norwalk,  63  Conn. 
495;  Maher  v.  City  of  Chicago,  38 
111.  266;  Grant  v.  City  of  Davenport, 
18  Iowa,  179;  Sleeper  v.  Bullen,  6 
Kan.  300;  Schumm  v.  Seymour,  24 
N.  J.  Eq.  (9  C.  E.  Green)  143; 
Brady  v.  City  of  New  York,  20  N. 
Y.  312;  Allegheny  City  v.  McClur- 
kan,  14  Pa.  81.  "It  is  not  univer- 
sally true  that  a  corporation  cannot 
bind  the  corporators  beyond  what  is 
expressly  authorized  in  the  charter. 
There  is  power  to  contract,  un- 
doubtedly, and  if  a  series  of  con- 
tracts have  been  made  openly  and 
palpably  within  the  knowledge  of 
the  corporators,  the  public  have  a 
right  to  presume  that  they  are  with- 
in the  scope  of  the  authority  grant- 
ed." City  of  Denison  v.  Foster 
(Tex.  Civ.  App.)  28  S.  W.  1052. 

8*1  City  of  Galesburg  v.  Galesburg 
Water  Co.,  34  Fed.  675;  Rissing  v. 
City  of  Ft.  Wayne,  137  Ind.  427; 
McGillivray  v.  Barton  Dist.  Tp.,  96 
Iowa,  629;  City  of  New  Orleans  v. 
Tulane  Educational  Fund's  Adm'rs, 
46  La.  Ann.  861:  Lincoln  v.  Inhab- 


itants of  Stockton,  75  Me.  141;  City 
of  St.  Louis  v.  Gorman,  29  Mo.  593; 
Huron  Waterworks  Co.  v.  City  of 
Huron,  7  S.  D.  9,  30  L.  R.  A.  848; 
City  of  Nashville  v.  Hagan,  68  Tenn. 
(9  Baxt.)  495. 

8*2  See  authorities  cited  in  §§  249- 
258,  259;  Town  of  Newport  v.  Bates- 
ville  &  B.  R.  Co.,  58  Ark.  270;  Ber- 
ka  v.  Woodward,  125  Cal.  119,  57 
Pac.  777,  45  L.  R.  A.  420;  City  of 
Indianapolis  v.  Wann,  144  Ind.  175, 
42  N.  E.  901,  31  L.  R.  A.  743;  Sioux 
City  v.  Weare,  59  Iowa,  95;  City  of 
Leavenworth  v.  Rankin,  2  Kan.  357; 
Root  v.  City  of  Topeka,  63  Kan.  129, 
65  Pac.  233;  City  of  Baltimore  v. 
Reynolds,  20  Md.  1;  Packard  v. 
Hayes,  94  Md.  233,  51  Atl.  32;  Sceery 
v.  City  of  Springfield,  112  Mass.  512; 
Hilton  v.  Common  Council  of  Grand 
Rapids,  112  Mich.  500;  Jefferson 
County  Sup'rs  v.  Arrighi,  54  Miss. 
668;  McKissick  v.  Mt.  Pleasant  Tp., 
48  Mo.  App.  416;  Maupin  v.  Frank- 
lin County,  67  Mo.  327;  Tullock  v. 
Webster  County,  46  Neb.  211;  Ber- 
lin Iron  Bridge  Co.  v.  Wilkes  Coun- 
ty Com'rs,  111  N.  C.  317;  McTwig- 
gan  v.  Hunter,  19  R.  I.  265,  33  Atl. 
5,  29  L.  R.  A.  526;  Huron  Water- 


§  281 


POWER    TO    CONTRACT. 


627 


ognize  and  enforce  the  clear  distinction  between  an  irregular  or 
informal  exercise  of  a  granted  or  implied  power  and  the  total 
lack  or  absence  of  power.843 

§  281.    Legislative  ratification  of  ultra  vires  contracts. 

If  the  legislature  possess  the  power  to  authorize  the  execu- 
tion of  certain  contracts  by  a  public  corporation,  it  can  author- 
ize such  a  corporation  to  ratify  a  contract  previously  executed 
by  it  without  such  authority;844  the  ratification  is  then  equal 


works  Co.  v.  City  of  Huron,  7  S.  D. 
9,  62  N.  W.  975;  Arnott  v.  City  of 
Spokane,  6  Wash.  442;  Agawam  Nat. 
Bank  v.  Inhabitants  of  South  Had- 
ley,  128  Mass.  503. 

843  Lake    County   v.   Graham,   130 
U.  S.  674;   Scott's  Ex'rs  v.  City  of 
Shreveport,  20  Fed.  714;  Branham  v. 
City  of  San  Jose,  24  Cal.  585;  Hig- 
gins  v.  City  of  San  Diego,  118  Cal. 
524;  Treadway  v.  Schnauber,  1  Dak. 
236;  Stephens  v.  People,  89  111.  337; 
Ryce  v.  City  of  Osage,  88  Iowa,  558; 
Lincoln  v.   Inhabitants  of  Stockton, 
75  Me.  141;  Black  v.  Common  Coun- 
cil  of  Detroit,   119   Mich.    571;    Mc- 
Donald v.  City  of  New  York,  68  N. 
Y.  23;   Union  Bank  of  Richmond  v. 
Oxford  Com'rs,  119  N.  C.  214,  34  L. 
R.   A.    487;    Borough    of   Milford   v. 
Milford  Water  Co.,  124  Pa.  610,  3  L. 
R.  A.  122;  Ellis  v.  City  of  Cleburne 
(Tex.  Civ.  App.)  35  S.  W.  495;  Clark 
v.   City  of  Janesville,  13  Wis.   415. 
See,   also,   cases   cited   in  preceding 
note  and  those  generally  cited  under 
preceding  section. 

844  city    of   Bridgeport   v.    Housa- 
tonuc  R.  Co.,  15  Conn.  475;  Windsor 
v.  City  of  Des  Moines,  110  Iowa,  175, 
81  N.  W.  476;   Id.,  101  Iowa,  343,  70 
N.  W.  214;  Inhabitants  of  Bridgewa- 
ter  v.   Inhabitants   of  Plymouth,   97 
Mass.  382;  Chesapeake  &  P.  Tel.  Co. 
v.  City  of  Baltimore,  89  Md.  689,  43 
Atl.    784,    44    Atl.    1033;    Kunkle    v. 


Town  of  Franklin,  13  Minn.  127 
(Gil.  119),  and  cases  cited. 

State  of  Wisconsin  v.  Torinus,  26 
Minn.  1.  "In  making  the  sale  of  his 
principal's  property  on  time  and 
taking  a  note  for  the  purchase 
money,  the  agent,  Harriman,  ex- 
ceeded his  delegated  authority  and 
for  that  reason  alone  his  act  was  an 
invalid  one.  It  was  competent,  how- 
ever, for  the  state  as  principal  to 
make  it  good  by  a  legislative  enact- 
ment, adopting  it  as  its  own  for  it 
could  have  authorized  it  in  the  first 
instance  and  whatever  it  can  do  or 
direct  to  be  done  originally,  It  can 
subsequently,  and  when  done,  law- 
fully ratify  and  adopt,  with  the 
same  effect  as  though  it  had  been 
properly  done  under  a  previous  au- 
thority." 

Winchester  v.  Inhabitants  of  Co- 
rinna,  55  Me.  11;  City  of  New  York 
v.  Tenth  Nat.  Bank,  48  Hun,  620,  1 
N.  Y.  Supp.  840;  Wrought-Iron 
Bridge  Co.  v.  Town  of  Attica,  49 
Hun,  513,  2  N.  Y.  Supp.  359;  Brown 
v.  City  of  New  York,  63  N.  Y.  239; 
Trustees  of  Cuyahoga  Falls  Real  Es- 
tate Ass'n  v.  McCaughy,  2  Ohio  St. 
152;  Mill  Creek  Val.  St.  R.  Co.  v. 
Village  of  Carthage,  18  Ohio  Circ. 
R.  216;  Jewell  Nursery  Co.  v.  State, 
4  S.  D.  213,  56  N.  W.  113.  But  see 
Jewell  Nursery  Co.  Y.  State,  8  S.  D. 
531,  67  N.  W.  C29. 


628 


POWERS. 


282 


in  legal  force  to  the  granting  of  original  authority,  and  relat- 
ing back  to  the  inception  of  the  transaction  validates  all  acts 
in  connection  therewith.845 


§  282.    Ratification  of  illegal  contracts. 

The  statement  has  been  made  in  a  preceding  section  that  an 
illegal  contract  may  be  ratified  by  a  subsequent  performance  of 
those  acts  or  conditions  requisite  to  the  making  of  a  legal  con- 
tract. This  must  be  done  in  the  manner  and  by  the  body  author- 
ized by  law  to  perform  such  acts.  The  assent  of  the  legisla- 
ture846 to  the  contract  may  be  originally  necessary,  or  consent 
of  the  people  at  an  election847  duly  held  for  such  purpose,  or  the 
affirmative  action  by  a  local  legislative  body,848  or  by  a  subor- 


Nichols  v.  State,  11  Tex.  Civ.  App. 
327,  32  S.  W.  452.  The  rule,  howev- 
er, in  this  case  was  not  applied  to 
extras  furnished  by  the  contractor 
in  connection  with  the  authorized 
construction  of  a  state  building, 
Mills  v.  Gleason,  11  Wis.  470;  Blount 
v.  City  of  Janesville,  31  Wis.  648; 
City  of  Jackson  v.  Bowman,  39  Miss. 
671.  See,  also,  cases  cited  under 
§  282. 

845  Daviess    County   v.    Dickinson, 
117  U.   S.  657;    Hill  v.   City  of  In- 
dianapolis,   92   Fed.    467;    Town    of 
Durango  v.  Pennington,  8  Colo.  257; 
Squire  v.  Preston,  82  Hun   (N.  Y.) 
88. 

846  Santa  Ana  Water  Co.  v.  Town 
of  San   Buenaventura,   65  Fed.  323-. 
But  a  fraud  inherent  in  such  a  con- 
tract and  undisclosed  at  the  time  of 
action  by  the  legislature  will  not  be 
ratified. 

Reed  v.  Inhabitants  of  Lancaster, 
152  Mass.  500;  City  of  Jackson  v. 
Bowman,  39  Miss.  671.  Facts  con- 
sidered and  not  held  a  sufficient  rati- 
fication. 

State  v.  Miller,  66  Mo.  328;  Atlan- 
tic City  Waterworks  Co.  v.  Read,  50 
N  J.  Law,  665.  An  ultra  vires  con- 


tract cannot  be  ratified  by  a  subse- 
quent act  of  the  legislature.  See, 
also,  as  holding  the  same  Board  of 
Finance  of  Jersey  City  v.  Jersey 
City,  57  N.  J.  Law,  452;  Brown  v. 
City  of  New  York,  63  N.  Y.  239. 
See,  also,  authorities  cited  under  § 
281. 

8*7  Crebs  v.  City  of  Lebanon,  98 
Fed.  549;  Inhabitants  of  Arlington 
v.  Cutter,  114  Mass.  344;  City  of 
Lexington  v.  Lafayette  County  Bank, 
165  Mo.  671,  65  S.  W.  943;  Squire  v. 
Cartwright,  67  Hun,  218,  22  N.  Y. 
Supp.  899;  Squire  v.  Preston,  82 
Hun,  88,  31  N.  Y.  Supp.  174;  Gorrell 
v.  Greensboro  Water  Supply  Co.,  124 
N.  C.  328,  46  L.  R.  A.  513;  City  of 
Portland  v.  Bituminous  Pav.  Co.,  33 
Or.  307,  44  L.  R.  A.  527. 

Williams  v.  Shoudy,  12  Wash.  362. 
Upon  such  a  ratification  a  decree  of 
court  enjoining  the  payment  of  coun- 
ty warrants  issued  in  excess  of  the 
authorized  indebtedness  becomes  null 
and  void.  Richards  v.  Klickitat 
County,  13  Wash.  509. 

848  City  of  Shawneetown  v.  Baker, 
85  111.  563;  City  of  Chicago  v.  Galpin, 
183  111.  399;  Isenburg  v.  Selvage,  19 
Ky.  L.  R.  1963,  44  S.  W.  974;  City  of 


§   283  POWER    TO    CONTRACT.  629 

dinate  public  officer  to  whom  is  delegated  the  performance  of 
such  designated  duties.849  A  contract,  therefore,  where  such 
original  action  is  necessary,  may  be  ratified  by  the  proper  subse- 
quent performance  of  the  requisite  steps.  This  principle  ap- 
plies universally  to  the  agencies  suggested  above.  The  ratifica- 
tion of  an  illegal  or  ultra  vires  contract,  when  this  can  be  done, 
operates  equally  in  the  same  manner  relating  back  to  the  incep- 
tion of  the  transaction  and  validating  all  subsequent  acts. 

§  283.    Modification  of  a  contract. 

"Where  the  power  is  possessed  by  certain  designated  officers, 
the  legislature  of  the  state,  or  a  local  legislative  body,  to  enter 

Owensboro  v.  Weir,  95  Ky.  158,  24  S.  497;    Paulding  County  v.   Scoggins, 

W.    115;    City    of    New    Orleans    v.  97    Ga.    253;    Crawford    County    v. 

Southern   Bank,    31   La.    Ann.    560;  Walter,    89    111.   App.    7;    Sexton   v. 

Naegely    v.    City    of    Saginaw,    101  Cook  County,  114  111.  174;  Lynch  T. 

Mich.  532.  Forbes,  161  Mass.  302,  37  N.  E.  437; 

City  of   Unionville  v.  Martin,    95  McCormick   v.   City  of   Boston,   120 

Mo.  App.  28,  68  S.  W.  605.     The  rat-  Mass.  499;  May  v.  City  of  Gloucester, 

ification  must  consist  of  the  identi-  174  Mass.  583;  State  v.  District  Ct. 

cal  acts  necessary  in  a  grant  of  orig-  of  Hennepin  County,  33  Minn.  235 ; 

inal  authority.  New  Jersey  Car  Spring  &  Rubber  Co. 

Kroffe  v.   City  of   Springfield,   86  v.  Jersey  City,  64  N.  J.  Law,  544,  46 

Mo.  App.  530;  Devers  v.  Howard,  88  Atl.  649;  People  v.  Rensselaer  Coun- 

Mo.  App.   253.     The  ratification   ex-  ty  Sup'rs,  52  Hun,  446,  5  N.  Y.  Supp. 

tends  to  the  contract  as  an  entirety.  600;     Trustees    of    Town    of    East 

City  of  St.  Louis  v.  Davidson,  102  Hampton  v.  Bowman,  60  Hun,  163, 

Mo.  149,  22  Am.  St.  Rep.  764;  State  14   N.   Y.    Supp.   668;    North   River 

v.  Cowgill  &  Hill  Mill.  Co.,  156  Mo.  Elec.  Light  &  Power  Co.  v.  City  of 

620;  Gutta-Percha  &  Rubber  Mfg.  Co.  New  York,  48  App.  Div.  14,  62  N.  Y. 

v.  Village  of  Ogalalla,  40  Neb.  775,  Supp.  726;  Port  Jervis  Water  Works 

59  N.  W.  513.  Co.  v.  Village  of  Port  Jervis,  151  N. 

City  of  Omaha  v.  Croft,  60  Neb.  57.  I.  Ill;  Pope  Mfg.  Co.  v.  Granger, 
The  question  of  ratification  is  one  21  R.  I.  298,  43  Atl.  590;  City  of 
of  fact  for  a  jury  to  determine.  City  Wichita  Falls  v.  Skeen,  18  Tex.  Civ. 
of  Philadelphia  v.  Hays,  93  Pa.  72;  App.  632;  Boydston  v.  Rockwall 
City  of  Philadelphia  v.  Jewell,  140  County,  86  Tex.  234;  Town  of  Top- 
Pa.  9.  A  forfeited  contract  may  be  sham  v.  Rogers,  42  Vt.  189;  Barton 
reinstated  and  ratified  by  a  subse-  v.  Town  of  Pittsford,  44  Vt.  371; 
quent  ordinance.  In  re  Borough  of  Goshorn's  Ex'rs  v.  County  Ct.  of 
Millvale,  162  Pa.  374.  Kanawha,  42  W.  Va.  735.  Facts  con- 

849  People   v.    Swift,    31    Cal.    26;  sidered  and  not  held  a  sufficient  rati- 

Smeltzer  v.  Miller,  125  Cal.   41,  57  fication. 
Pac.   668;    Taylor  v.  Mott,   123  Cal. 


630 


POWERS. 


§  383 


into  contract  relations  binding  upon  the  public  corporation  they 
represent,  the  rule  is  true  that  with  the  consent  of  the  other  party 
to  the  contract,  modifications  or  changes  may  be  made  and  the 
contract  as  thus  modified  or  changed  will  be  the  one  determining 
and  establishing  the  rights  of  parties.  The  making  of  these 
modifications  or  changes  will  be  controlled  by  the  general  prin- 
ciples relating  to  the  law  of  contracts.850  The  mere  fact  that  one 
of  the  parties  to  a  contract  entered  into  by  legal  authority  is 
a  public  corporation,  a  governmental  agent  of  restricted  and 
special  powers  does  not  enable  it  to  willfully  or  dishonestly  mod- 
ify, change  or  avoid  a  contract  without  the  consent  of  the  other 
party  though  it  may  be  onerous  and  burdensome  or  one  resulting 
in  a  pecuniary  loss  to  the  corporation.851  The  contract  obliga- 
tion existing  between  a  public  corporation  and  other  parties,  if 
entered  into  with  legal  authority,  cannot  be  impaired  or  avoided 
at  the  mere  whim  or  pleasure  of  the  public  corporation.  The  law 


sso  Smith  v.  Salt  Lake  City,  83 
Fed.  784;  Gafney  v.  City  &  County 
of  San  Francisco,  72  Cal.  146,  13 
Pac.  467;  Buckman  v.  Cuneo,  103 
Cal.  62,  36  Pac.  1025;  Himmelmann 
v.  Hoadley,  44  Cal.  276;  Ede  v. 
Knight,  93  Cal.  159;  Buckman  v. 
Landers,  111  Cal.  347;  Anderson  v. 
De  Urioste,  96  Cal.  404;  Edwards  v. 
Berlin,  123  Cal.  544;  Village  of 
Morgan  Park  v.  Gahan,  35  111.  App. 
646;  Gibson  County  Com'rs  v.  Moth- 
erwell  Iron  &  Steel  Co.,  123  Ind. 
364,  24  N.  E.  115;  Terre  Haute  & 
L.  R.  Co.  v.  Nelson,  130  Ind.  258,  27 
N.  E.  486;  Gibson  County  Com'rs  v. 
Cincinnati  Steam-Heating  Co.,  128 
Ind.  240,  27  N.  E.  612,  12  L.  R.  A. 
502;  Jenkins  v.  Stetler,  118  Ind.  275; 
Moore  v.  Held,  73  Iowa,  538,  35  N. 
W.  623;  Campau  v.  City  of  Detroit, 
106  Mich.  414;  Reno  Water,  Land  & 
Light  Co.  v.  Osburn,  25  Nev.  53,  56 
Pac.  945;  Dillon  v.  City  of  Syracuse, 
55  Hun,  612,  9  N.  Y.  Supp.  98;  Mur- 
phy v.  City  of  Albina,  22  Or.  106; 
Filbert  v.  City  of  Philadelphia,  181 


Pa.  530;  Nolan  County  v.  Simpson, 
74  Tex.  218. 

Markey  v.  City  of  Milwaukee,  76 
Wis.  349,  45  N.  W.  28.  "It  is  also 
urged  as  a  reason  for  sustaining  the 
demurrer  that  it  appears  from  the 
complaint  'that  the  plaintiff  contin- 
ued his  work  under  the  contract  aft- 
er the  alleged  modification  of  the 
same  by  the  board  of  public  works,' 
and  he  must  therefore  be  presumed 
to  have  accepted  the  modified  con- 
tract and  waived  the  righ^  to  in- 
sist upon  its  performance  as  origi- 
nally made.  *  *  *  If  there  was 
a  waiver  on  the  part  of  the  plaintiff 
it  must  be  made  to  appear  in  some 
way  and  will  not  be  presumed  from 
the  mere  fact  that  he  continued  his 
work  under  his  original  contract 
after  the  unauthorized  action  of  the 
board  of  public  works  in  modifying 
and  changing  the  same." 

ssi  City  of  Sacramento  v.  Kirk,  7 
Cal.  419;  State  v.  City  of  Great 
Falls,  19  Mont.  518,  49  Pac.  15; 
Markey  v.  City  of  Milwaukee,  76 
Wis.  349,  45  N.  W.  28. 


§  284 


POWER    TO    CONTRACT. 


631 


does  not  countenance  dishonesty  and  if  a  contract  has  been  fairly 
made  in  the  absence  of  fraud  or  misconduct  on  the  part  of  pub- 
lic officers,  it  will  be  enforced  to  the  same  extent  as  if  made  by 
natural  persons  or  private  corporations.  The  public  corpora- 
tion is  liable  in  damages  for  a  breach  of  its  conditions  or  terms.852 
This  rule  applies  to  all  acts  of  the  public  corporation  without 
respect  to  the  source  of  authority,  irrespective  of  constitutional 
provisions,  against  the  impairment  of  the  obligations  of  a  con- 
tract ;  the  courts  acting  upon  well  established  principles  will  not 
permit  private  interests  to  suffer  wrong  simply  because  a  public 
corporation  may  be  one  of  the  parties  interested. 

§  284.    Avoidance  or  rescission  of  contract. 

The  right  of  a  public  corporation  to  rescind  a  contract  is  con- 
trolled by  general  rules  of  law.853     There  is  a  tendency  of  mu- 


852  Town  of  Milford  v.  Powner, 
126  Ind.  528;  Hull  v.  Independent 
School  Dist,  82  Iowa,  686,  46  N.  W. 
1053,  48  N.  W.  82,  10  L.  R.  A.  273; 
Cobb  v.  School  Dist.  No.  1,  63  Vt. 
647,  21  Atl.  957;  City  of  Newport  v. 
Phillips,  19  Ky.  L.  R.  352,  40  S.  W. 
378. 

ssa  Farmers'  Loan  &  Trust  Co.  v. 
City  of  Galesburg,  133  U.  S.  156.  A 
contract  subject  to  a  continuing 
compliance  with  the  terms  of  an  or- 
dinance authorizing  it  is  subject  to 
the  city's  right  of  rescission  for  a 
failure  to  comply  with  stipulations 
concerning  the  quality  and  quantity 
of  water  to  be  supplied.  The  court 
in  part  say:  "The  principal  conten- 
tion on  the  part  of  the  appellants  is 
that  on  the  acceptance  of  the  ordi- 
nance by  Shelton,  a  right  in  the 
franchise  vested  in  him,  which  could 
not  be  defeated  even  though  he  aft- 
erwards failed  to  comply  with  its 
terms,  that  the  failure  of  the  water 
company  to  furnish  water  in  the 
quantity  and  of  the  quality  called 
for  by  the  ordinance  was  only  a 


breach  of  a  condition  subsequent, 
and  that  a  court  of  equity  will  not 
lend  its  aid  to  divest  an  estate  for 
such  a  breach.  But  it  seems  to  us 
that  in  respect  to  a  contract  of  the 
character  of  the  present  one  the 
ability  of  the  water  company  to  con- 
tinue to  furnish  water  according  to 
the  terms  of  the  ordinance  was  a 
condition  precedent  to  the  continu- 
ing right  of  Shelton  and  his  assigns 
to  use  the  streets  of  the  city  and  to 
furnish  water  for  a  period  of  thirty 
years;  and  that  when,  after  a  rea- 
sonable time,  Shelton  and  his  as- 
signs, had  failed  to  comply  with  the 
condition  as  to  the  quantity  and 
quality  of  the  water,  the  city  had 
the  right  to  treat  the  contract  as 
terminated  and  to  invoke  the  aid  of 
a  court  of  equity  to  enforce  its 
rescission.  A  suit  for  a  specific  per- 
formance of  the  contract,  or  a  suit 
to  recover  damages  for  its  nonper- 
formance,  would  be  a  wholly  inade- 
quate remedy  in  a  case  like  the  pres- 
ent. The  danger  to  the  health  and 
lives  of  the  inhabitants  of  the  city 


632 


POWERS. 


§  284 


nicipal  corporations  to  regard  a  contract  especially  those  relat- 
ing to  so-called  public  utilities,  binding  upon  them  only  so  long 
as  it  operates  in  their  favor.  If  it  proves  what  is  termed  "a  bad 
bargain,"  it  is  to  be  avoided  irrespective  of  the  rights  of  others. 
The  fact  that  the  complaining  party  is  a  public  corporation  be- 
ing sufficient  reason,  so  it  is  urged,  for  it  to  disregard  at  its 
pleasure  all  contract  obligations  whenever  or  under  whatever 
circumstances  incurred.  This  claim  is  not  based  upon  sound 
principles  and  is,  therefore,  by  the  great  weight  of  authority, 
not  sustained  by  the  courts.85*  An  authorized  contract  between 


from  Impure  water  and  the  contin- 
ued exposure  of  the  property  in  the 
city  to  destruction  by  fire  from  an 
inadequate  supply  of  water,  were 
public  questions  peculiarly  under  the 
care  of  the  municipality;  and  it  was 
entitled  and  bound  to  act  with  the 
highest  regard  for  the  public  inter- 
ests and  at  the  same  time,  as  it  did, 
with  due  consideration  for  the  rights 
of  the  other  parties  to  the  contract." 

City  of  Galesburg  v.  Galesburg 
Water  Co..  34  Fed.  675;  Crebs  v. 
City  of  Lebanon,  98  Fed.  549.  A 
contract  with  a  water  company  rati- 
fied by  the  electors  of  a  municipality 
accepted  and  performed  by  the  com- 
pany and  the  city  for  a  number  of 
years  cannot  be  subsequently  avoid- 
ed on  the  ground  of  irregularities 
occurring  at  the  election  ratifying  it. 

City  of  Greenville  v.  Greenville 
Waterworks  Co.,  125  Ala.  625,  27  So. 
764;  City  of  Sacramento  v.  Kirk,  7 
Cal.  419;  Warren  v.  Chandos,  115 
Cal.  382;  Gibson  v.  O'Brien,  9  Ky. 
Li.  R.  639,  6  S.  W.  28.  Construing 
the  right  of  abutting  owners  on  a 
contract  for  street  improvements. 
City  of  New  Orleans  v.  Great  South- 
ern Telep.  &  Tel.  Co.,  40  La.  Ann. 
41;  Allen  v.  Inhabitants  of  Taunton, 
36  Mass.  (19  Pick.)  485;  Childers  v. 
Holmes,  95  Mo.  App.  154,  68  S.  W. 
1046.  The  failure  to  complete  street 


grading  within  the  time  limit  of  a 
contract  with  the  city  is  ground  for 
its  forfeiture.  Neill  v.  Gates,  152 
Mo.  585;  Powers  v.  City  of  Yonkers, 
114  N.  Y.  145;  Fire-Extinguisher 
Mfg.  Co.  v.  City  of  Clarksville 
(Tenn.  Ch.  App.)  52  S.  W.  442. 

ss*  in  Warner  v.  City  of  New  Or- 
leans, 167  U.  S.  467,  477,  the  court 
said:  "That  one  who  purchases 
property,  contracting  to  pay  for  it 
out  of  a  special  fund  and  issues  war- 
rants therefor  payable  out  of  that 
fund — a  fund  yet  partially  to  be 
created  and  created  by  the  perform- 
ance by  him  of  a  statutory  duty — 
cannot  deliberately  abandon  that 
duty,  take  active  steps  to  prevent 
the  further  creation  of  the  fund, 
and  then  there  being  nothing  in 
the  fund,  plead  in  defence  to  a  lia- 
bility- on  the  warrants  drawn  on 
that  fund,  that  it  had  prior  to  the 
purchase  paid  off  obligations  there- 
tofore created  against  the  fund." 

City  of  New  Orleans  v.  Warner, 
175  U.  S.  120;  Fitzgerald  v.  Walker, 
55  Ark.  148;  City  &  County  of  San 
Francisco  v.  Beideman,  17  Cal.  443. 
But  provision  made  by  the  public 
corporation  for  the  payment  of  its 
debts  is  not  considered  a  contract 
and  may  be  altered  at  its  pleasure. 

City  of  Vincennes  v.  Citizens'  Gas 
Light  Co.,  132  Ind.  114,  31  N.  E. 


§  284 


POWER    TO    CONTRACT. 


633 


a  public  corporation  and  other  parties  if  made  in  good  faith, 
without  fraud,  should  be  enforced.855  The  question  of  advantage 
in  the  contract  to  either  one  party  or  the  other  is  not  to  be  consid- 
ered. Courts  should  not  make  contracts  but  enforce  them.  The 
rescission,  if  the  right  for  such  exists,  cannot  be  irregularly  done. 
Verbal  instructions  or  assertions  when  the  contract  is  in  writing 
do  not  affect  its  validity.  The  sufficiency  of  a  notice  of  rescis- 


673,  16  L.  R.  A.  485;  City  of  Indi- 
anapolis v.  Ely,  49  Ind.  373;  City  of 
Newport  v.  Phillips,  19  Ky.  L.  R. 
352,  40  S.  W.  378.  The  revocation 
by  a  city  for  failure  to  comply  with 
the  provisions  of  a  contract  for  po- 
lice and  fire  protection  has  prima 
facie  presumption  that  it  was  made 
for  good  cause.  State  v.  City  of 
Great  Falls,  19  Mont.  518,  49  Pac. 
15;  United  States  Water  Works  Co. 
v.  Borough  of  Du  Bois,  176  Pa.  439. 
The  following  cases  question  the 
principle  given  in  the  text.  Ritten- 
house  v.  City  of  Baltimore,  25  Md. 
336;  Kemper  v.  King,  11  Mo.  App. 
116. 

sss  Southwest  Missouri  Light  Co. 
v.  City  of  Joplin,  113  Fed.  817.  This 
case  goes  further  than  the  principle 
In  the  text  and  holds  that  not  only 
should  the  contract  between  the  par- 
ties be  enforced  but  that  the  munici- 
pality itself  is  prohibited,  within  the 
life  of  the  contract,  from  erecting 
works  of  its  own  which  would  enter 
into  competition  with  those  of  the 
other  party  to  the  contract. 

Tippecanoe  County  Com'rs  v.  Ev- 
erett, 51  Ind.  543;  City  of  Vincennes 
v.  Citizens'  Gas  Light  Co.,  132  Ind. 
114,  16  L.  R.  A.  485;  Cason  v.  City 
of  Lebanon,  153  Ind.  567.  An  illegal 
arrangement  not  a  part  of  a  contract 
but  made  in  connection  with  it  is  no 
ground  for  its  rescission.  Davenport 
Gas  Light  &  Coke  Co.  v.  City  of 
Davenport,  13  Iowa,  229;  Schwartz 
v.  Flatboats,  14  La.  Ann.  243;  Kaiser 


v.  City  of  New  Orleans,  17  La.  Ann. 
178. 

State  v.  Heath,  20  La.  Ann.  172,  96 
Am.  Dec.  390.  "This  court  can  only 
'view  the  city  as  any  other  contract- 
ing party,'  and  it  will  not  sanction 
the  revocation  of  contracts  made  by 
her  because  she  may  find  them  oner- 
ous or  incongruous."  Gurley  v.  City 
of  New  Orleans,  41  La.  Ann.  75.  The 
nature  of  the  relation  existing  be- 
tween the  parties,  however,  may  be 
questionable  whether  contract  or 
otherwise.  Nelson  v.  Inhabitants  of 
Milford,  24  Mass.  (7  Pick.)  18;  Al- 
len v.  Inhabitants  of  Taunton,  36 
Mass.  (19  Pick.)  48t>;  Dausch  v. 
Crane,  109  Mo.  323,  19  S.  W.  61; 
Nebraska  City  v.  Nebraska  City  Hy- 
draulic Gas  Light  &  Coke  Co.,  9 
Neb.  339;  Jewett  v.  Town  of  Alton, 
7  N.  H.  257;  Ottendorfer  v.  Fortu- 
nato,  56  N.  Y.  Super.  Ct.  (24  J.  &  S.) 
495,  4  N.  Y.  Supp.  629;  Cody  v.  City 
of  New  York,  71  App.  Div.  54,  75 
N.  Y.  Supp.  648;  Baird  v.  City  of 
New  York,  96  N.  Y.  567. 

Goodale  v.  Fennell,  27  Ohio  St. 
426.  The  attempt  to  rescind  a  legal 
contract  is  subject  to  the  restraining 
power  of  the  constitutional  provi- 
sion protecting  the  obligation  of  a 
contract.  Western  Sav.  Fund  Soc. 
v.  City  of  Philadelphia,  31  Pa.  175; 
City  of  Galveston  v.  Morton,  58  Tex. 
409;  Auerbach  v.  Salt  Lake  County, 
23  Utah,  103,  63  Pac.  907;  Barle  v. 
Town  of  Wallingford,  44  Vt.  367. 


634 


POWERS. 


§  285 


sion  must  be  determined  by  an  inspection  of  the  contract  in  each 
individual  case.858 


§  285.     Contracts;  their  construction. 

In  the  construction  of  contracts,  the  fact  that  a  public  corpora- 
tion is  one  of  the  parties  does  not  change,  except  in  a  few  in- 
stances, the  application  of  ordinary  legal  rules.857  Some  excep- 
tions to  this  rule  are  based  upon  the  reason  that  in  all  matters 
affecting  public  interests,  a  public  corporation  being  a  govern- 
mental or  public  agency,  questions  of  doubt  especially  in  grants 
are  construed  most  strongly  in  favor  of  the  corporation  and 
against  the  'other  party  to  the  contract.858  There  are  also  cases 
going  to  the  extent  that  the  rule  of  construction  applying  to  con- 
tracts that  the  court  in  construing  a  doubtful  provision  will  fol- 
low the  interpretation  placed  upon  it  by  the  parties  will  not  ap- 
ply.869 


856  City  of  Greenville  v.  Greenville 
Water-Works  Co.,  125  Ala.  625,  27 
So.  764;  City  of  Indianapolis  v.  Ely, 
39  Ind.  373;  Neill  v.  Gates,  152  Mo. 
585.  The  attempted  rescission  may 
be  void  because  of  a  delegation  of 
legislative  powers. 

SST  Richie  v.  Frazer,  50  Ark.  393, 
8  S.  W.  143;  Worthington  v.  City  of 
Covington,  82  Ky.  265;  City  of  Bal- 
timore v.  Eschbach,  18  Md.  276; 
McBrian  v.  City  of  Grand  Rapids,  56 
Mich.  95;  City  of  Grand  Rapids  v. 
Grand  Rapids  Hydraulic  Co.,  66 
Mich.  606;  Western  Sav.  Fund  Soc. 
v.  City  of  Philadelphia,  31  Pa.  175; 
City  of  Harrisburg  v.  Shepler,  190 
Pa.  374.  The  fact  that  a  contract 
does  not  show  upon  its  face  that  it 
is  based  upon  an  appropriation  of 
money  is  immaterial  and  does  not 
invalidate  it.  Milliken  v.  Callahan 
County,  69  Tex.  205,  6  S.  W.  681. 
The  rule  applied  that  preliminary 
negotiations  are  merged  in  a  written 
contract  subsequently  made  and  evi- 
dence of  which  cannot  be  introduced 


to  alter  or  change  its  terms.  Gano 
v.  Palo  Pinto  County,  71  Tex.  99,  8 
S.  W.  634. 

sss  McPherson  v.  San  Joaquin 
County  (Cal.)  56  Pac.  802. 

859  National  Water- Works  Co.  v. 
School  Dist.  No.  7,  48  Fed.  523. 
"Regarding  this  verbal  agreement, 
it  may  be  said  that  the  construction 
given  to  a  doubtful  provision  by  the 
parties  to  a  contract,  and  affecting 
their  interest  only,  often  influences 
courts  in  their  judgment,  upon  the 
reasonable  presumption  that  the  par- 
ties to  a  judgment  are  in  a  condition 
to  best  know  what  was  meant  or  in- 
tended by  it  and,  moreover,  likely 
to  guard  their  interest.  The  force 
of  such  reasoning  is  broken  when  we 
come  to  apply  it  to  municipal  corpo- 
rations. They  must  of  necessity 
have  their  affairs  conducted  by  per- 
sons selected  according  to  law,  who 
often  have  but  a  general  public  in- 
terest in  the  matters  intrusted  to 
them,  are  frequently  changed,  and 
not  always  the  best  calculated  to 


§  285 


POWER    TO    CONTRACT. 


635 


Courts  are  called  upon  to  construe  many  contracts  executed  by 
the  parties  at  some  time  in  the  past  more  or  less  remote  and,  usu- 
ally, under  more  favorable  circumstances  at  that  time  to  the 
public  corporation.  An  increase  in  population  or  other  change 
of  conditions  makes  the  contract,  which  at  the  time  of  its  execu- 
tion was  a  burdensome  one  upon  the  other  party,  of  great  ad- 
vantage to  it.  The  public  corporation  desires  to  take  advantage 
of  the  fact  that  if  this  contract  were  executed  under  present  con- 
ditions a  better  bargain  might  be  made  and  therefore  seeks  to 
avoid  it  for  the  reason  that  it  is  a  public  corporation,  a  public 
agent  and,  therefore,  it  should  be  permitted  to  make  all  of  its 
contracts  at  the  greatest  possible  advantage  to  itself  even  if  in 
order  to  do  this  it  must  deliberately  avoid  legal  contracts  made 
under  other  conditions  or  circumstances  less  favorable.  The 
rule  adopted  by  the  courts  in  such  cases  for  determining  their 
reasonableness  or  validity  is  whether  at  the  time  the  contract  was 
made  it  was  legal  and  reasonable;  subsequent  developments  or 
newly  arising  conditions  should  not  be  permitted  to  influence 
or  determine  the  question.860  The  contracts  requiring  the  most 


construe  contracts  made  by  their 
predecessors.  This  is  illustrated  to 
some  extent  in  the  case  before  the 
court,  in  which  school  directors  of 
one  board  contracted  to  pay,  and  the 
same  or  another  set  of  directors  aft- 
erwards refused  payment.  A  court 
asked  to  construe  the  provisions  ot 
a  contract  under  such  or  similar  cir 
cumstances  may  well  hold  itself  free 
to  do  so  without  being  influenced  by 
the  views  entertained  or  even  acted 
on  by  the  corporators,  especially  in 
a  case  involving  public  interests,  as 
the  present  one  does."  Chicago,  B. 
&  Q.  R.  Co.  v.  City  of  Chicago,  134 
111.  323;  Adrian  Water  Works  v. 
City  of  Adrian,  64  Mich.  584;  St. 
Louis  Gaslight  Co.  v.  City  of  St. 
Louis,  46  Mo.  121. 

sec  Santa  Ana  Water  Co.  v.  Town 
of  San  Buenaventura,  56  Fed.  339; 
Los  Angeles  City  Water  Co.  v.  City 
of  Los  Angeles,  88  Fed.  720.  "It  is 


insisted  by  defendants  that  the  case 
at  bar  is  distinguishable  from  that 
of  Santa  Ana  Water  Co.  v.  Town  of 
San  Buenaventura,  supra,  *  *  * 
because  Griffin  and  his  associates 
procured  their  contract  with  the  in- 
tention of  forming  a  corporation  to 
carry  out  the  same,  and  that  soon 
thereafter,  pursuant  to  said  inten- 
tion, the  Los  Angeles  City  Water 
Company,^  one  of  the  complainants 
herein,  was  organized  by  them.  Now 
I  do  not  think  that  the  power  of  the 
city  to  enter  into  the  contract  or 
the  validity  of  the  contract  can  be 
affected  by  the  fact  that  the  assign- 
ors of  the  water  company,  at  the 
time  they  procured  the  contract,  in- 
tended to  assign  it  to  a  corporation 
thereafter  to  be  formed.  Suppose 
that,  after  the  making  of  the  con- 
tract, Griffin,  Beaudry  and  Lazard 
had  changed  their  purposes  and  con- 
cluded to  carry  out  the  contract  as 


636 


POWERS. 


§  285 


frequent  construction  by  the  courts  are  those  which  relate  to  or 
secure  a  supply  of  water801  or  light  862  for  municipal  or  public 


Individuals  and  had  actually  done 
so;  could  it  be  contended  that  the 
contract,  if  to-day  held  by  them, 
would  be  invalid  because  when  they 
procured  it  they  purposed  its  assign- 
ment to  a  contemplated  corporation? 
No  one,  I  think,  would  so  contend." 
Little  Falls  Elec.  &  Water  Co.  v.  City 
of  Little  Falls,  102  Fed.  663;  City  & 
County  of  San  Francisco  v.  Spring 
Valley  Water  Works,  48  Cal.  493. 

86i  Little  Falls  Elec.  &  Water  Co. 
v.  City  of  Little  Falls,  102  Fed.  663; 
Menominee  Water  Co.  v.  City  of 
Menominee,  124  Mich.  386,  83  N.  W. 
127;  Alpena  City  Water  Co.  v.  City 
of  Alpena,  130  Mich.  518,  90  N.  W. 
323;  Ludington  Water-Supply  Co.  v. 
City  of  Ludington,  119  Mich.  480; 
Syracuse  Water  Co.  v.  City  of  Syra- 
cuse, 116  N.  Y.  167,  5  L.  R.  A.  546; 
Port  Jervis  Water  Works  Co.  v.  Vil- 
lage of  Port  Jervis,  151  N.  Y.  111. 

sea  Pittsburgh  Gas  Co.  v.  City  of 
Pittsburgh,  101  U.  S.  219.  Constru- 
ing Internal  Revenue  Act  1864,  §  94, 
relative  to  the  levying  of  a  tax  on 
illuminating  gas  to  be  paid  by  the 
manufacturer.  Hamilton  Gas  Light 
&  Coke  Co.  v.  City  of  Hamilton,  146 
U.  S.  258,  affirming  37  Fed.  832,  and 
construing  the  provisions  of  a  con- 
tract for  supplying  gas  for  private 
and  public  consumption  during  the 
period  of  five  years.  Southwest  Mis- 
souri Light  Co.  v.  City  of  Joplin,  113 
Fed.  817;  Decatur  Gaslight  &  Coke 
Co.  v.  City  of  Decatur,  120  111.  67, 
affirming  24  111.  App.  544  and  con- 
struing the  terms  "at  rates  as  favor- 
able" as  used  in  a  contract  with  a 
gas  company  relative  to  the  price  to 
be  charged  for  gas  supplied. 

City  of  Vincennes  v.  Citizens'  Gas 
Light  Co.,  132  Ind.  114,  16  L.  R.  A. 


485,  construing  ordinance  granting 
to  plaintiff's  assignors  the  privilege 
of  laying  gas  mains  for  supplying 
illuminating  gas  during  a  period  of 
twenty-five  years.  Davenport  Gas 
Light  &  Coke  Co.  v.  City  of  Daven 
port,  13  Iowa,  229,  construing  the 
term  "public  lamp  posts"  as  used  in 
a  contract  for  lighting  streets. 

Capital  City  Gaslight  Co.  v.  City 
of  Des  Moines,  93  Iowa,  547,  con- 
struing provisions  of  a  city  ordi- 
nance binding  the  city  to  use  for  ten 
years  gas  furnished  by  the  plaintiff 
for  lighting  public  buildings  and 
street  lamps  with  the  privilege 
whenever  the  city  council  should 
deem  it  expedient  or  economical  to 
light  the  public  buildings  or  a.  por- 
tion of  the  business  section  of  the 
city  with  electric  lights,  of  discon- 
tinuing any  or  all  of  the  gas  lamps; 
also  construing  the  words  "business 
section"  as  meaning  th.-.t  part  of  the 
city  chiefly  devoted  to  business  pur- 
poses and  in  which  stores,  factories, 
offices  and  shops  predominated  In 
contradistinction  to  those  parts 
chiefly  used  for  resident  purposes  or 
which  were  vacant  and  unoccupied. 
The  court  also  lays  down  the  rule 
that  "If  a  construction  can  be  placed 
upon  the  contract  which  will  give  all 
parts  of  it  force  and  effect,  and  at 
the  same  time  is  in  accord  with  the 
well  settled  rules  of  construction,  it 
must  obtain,  rather  than  one  which 
would  render  a  part  of  the  contract 
inoperative.  Again  it  is  proper  to 
look  to  the  acts  of  the  parties  at  a 
time  when  there  was  no  litigation,  to 
ascertain  what  view  they  had  held  as 
to  their  obligations  under  the  con- 
tract." 

City  of  Winfield  v.  Winfield   Gas 


§  285 


POWSR    TO    CONTRACT. 


637 


uses;  the  paving,863  repairing,864  sprinkling,865  or  improvement868 
of  streets  and  pub^s  highways;  the  construction,867  and  mainte- 


Co.,  37  Kan.  24.  Full  force  and  ef- 
fect must  be  given  to  the  entire  con- 
tract. Mitchell  r.  City  of  Negaunee, 
113  Mich.  35:),  Yi  N.  W.  646,  38  L. 
R.  A.  157.  Where  neither  the  char- 
ter nor  the  statutes  require  a  public 
corporation  to  pay  in  cash  for  a 
lighting  plant,  a  contract  for  the 
construction  of  one  without  such 
funds  on  hand  is  valid. 

St.  Paul  Gaslight  Co.  v.  City  of 
St.  Paul,  78  Minn.  39,  80  N.  W.  774, 
877;  City  of  St.  Louis  v.  Laclede 
Gas  'Light  Co.,  155  Mo.  1;  Virginia 
City  Gas  Co.  v.  Virginia  City,  3  Nev. 
320;  Bronx  Gas  &  Elec.  Co.  v.  City 
of  New  York,  17  Misc.  433,  41  N.  Y. 
Supp.  358;  State  v.  Ironton  Gas  Co., 
37  Ohio  St.  45;  Saltsburg  Gas  Co. 
v.  Borough  of  Saltsburg,  138  Pa. 
250,  construing  the  term  "for  all 
street  lamps"  in  a  contract  in  which 
a  gas  company  agreed  to  furnish  nat- 
ural gas  to  a  village  free  of  charge 
for  such  lamps.  Parkersburg  Gas 
Co.  v.  City  of  Parkersburg,  30  W.  Va. 
435.  A  contract  with  a  gas  company 
giving  the  exclusive  right  to  furnish 
gas  for  public  use  does  not  prevent 
the  city  from  making  a  contract  for 
the  use  of  electric  light. 

£63  Murdock  v.  District  of  Colum- 
bia, 22  Ct.  01.  464;  Hitchcock  v. 
City  of  Galveston,  2  Woods,  272,  Fed. 
Cas.  No.  6,532.  A  written  consent 
of  property  owners  abutting  on  an 
asphalt  pavement  held  a  part  of  the 
contract  between  the  city  and  the 
contractor  for  such  paving.  The  fail- 
ure to  obtain  such  consent  consid- 
ered a  breach  of  the  contract  suffi- 
cient to  prevent  a  recovery  for  work 
done  under  it. 

McDonald  v.  Mezes,  107  Cal.  492, 


40  Pac.  808.  A  provision  that  work 
shall  be  commenced  "within  four- 
teen days"  from  the  date  of  the  con- 
tract for  street  paving  held  suffi- 
cient under  statutes  of  1885,  p.  151 
fixing  the  time  of  the  commencement 
of  work  at  not  more  than  fifteen 
days  from  the  date  of  the  contract. 
Kelso  v.  Cole,  121  Cal.  121,  53  Pac. 
353.  Construing  general  street  law, 
§  12%  as  amended  by  statutes  of 
1889,  p.  169;  Piedmont  Pav.  Co.  v. 
Allman,  136  Cal.  88,  68  Pac.  493; 
N.  P.  Ferine  Contracting  &  Pav.  Co. 
v.  Quackenbush,  104  Cal.  684,  con- 
struing statutes  of  1889,  p.  162,  pro- 
viding for  the  laying  of  pavement  by 
property  owners  if  they  so  elect. 

Himmelmann  v.  Satterlee,  50  Cal. 
68.  A  resolution  to  macadamize  and 
curb  a  street  does  not  give  authority 
to  order  work  on  adjoining  side- 
walks. Martindale  v.  Palmer,  52 
Ind.  411.  A  contract  based  upon  an 
ordinance  calling  for  "Nicholson  or 
wooden  block  pavement"  can  be  en- 
forced as  substantially  following  the 
ordinance. 

Shank  v.  Smith,  157  Ind.  401,  61 
N.  E.  932,  55  L.  R.  A.  564;  Risdon 
v.  Shank,  37  Iowa,  82;  State  v.  New 
Orleans  &  N.  E.  R.  Co.,  42  La.  Ann. 
11,  7  So.  84;  Grant  v.  City  of  De- 
troit, 119  Mich.  43,  77  N.  W.  307. 
A  contract  called  for  paving  a  street 
"forty  feet  wide,  less  car  tracks,  fif- 
teen feet."  There  was  a  small  space 
between  the  flanges  on  the  outside 
rails  not  included  in  the  forty  feet. 
The  court  held  this  space  to  be  in- 
cluded in  the  contract  and  that  it 
was  error  for  the  trial  court  to  leave 
the  construction  of  the  contract  to  a 
jury. 


638 


POWERS. 


§  285 


Cole  v.  Skrainka,  105  Mo.  303; 
Dunn  v.  McNelly,  75  Mo.  App.  217; 
State  v.  Webster,  20  Mont.  219; 
City  of  Camden  v.  Ward,  67  N.  J. 
Law,  558,  52  Atl.  392.  Construing 
that  provision  of  a  paving  contract 
for  the  completion  of  the  work  by 
the  street  commissioner  if  the  con- 
tractor fail  to  do  this. 

City  of  Schenectady  v.  Union  Col- 
lege, 66  Hun,  179,  21  N.  Y.  Supp.  147; 
Kelly  v.  City  of  New  York,  16  App. 
Div.  296,  44  N.  Y.  Supp.  628;  Peo- 
ple v.  Maher,  56  Hun  (N.  Y.)  81. 

864  McDonald  v.  Mezes,  107  Cal. 
492;  Latham  v.  Village  of  Wilmette, 
168  111.  153;  Shank  v.  Smith,  157 
Ind.  401,  61  N.  E.  932,  55  L.  R.  A. 
564;  State  v.  Common  Council  of 
Michigan  City,  138  Ind.  455;  Osburn 
v.  City  of  Lyons,  104  Iowa,  160; 
Kansas  City  v.  Hanson,  60  Kan.  833. 
A  guarantee  that  a  contractor  would 
make  all  repairs  necessary  within 
the  time  fixed  resulting  from  any 
imperfection  of  the  work  or  ma- 
terial is  a  guarantee  only  of  the 
quality  of  the  workmanship  and  ma- 
terial used  in  paving  and  not  a  gen- 
eral obligation  to  make  street  re- 
pairs irrespective  of  the  cause. 

Gibson  v.  Owens,  115  Mo.  258,  21 
S.  W.  1107;  Barber  Asphalt  Co.  v. 
Ullman,  137  Mo.  543,  38  S.  W.  458; 
Robertson  v.  City  of  Omaha,  55  Neb. 
718,  76  N.  W.  442,  44  L.  R.  A.  534. 
A  provision  in  a  paving  contract  by 
which  the  contractor  agrees  to  make 
"all  repairs  which  may  result  from 
any  imperfection  in  said  work  or 
material  becoming  necessary  within 
the  time  (ten  years)"  does  not  in- 
clude ordinary  repairs. 

City  of  Schenectady  v.  Union  Col- 
lege, 66  Hun,  179,  21  N.  Y.  Supp. 
147;  O'Keefe  v.  City  of  New  York, 
73  App.  Div.  312,  76  N.  Y.  Supp.  796. 
A  street  improvement  contract  bind- 
ing the  contractor  to  maintain  the 


work  in  repair  for  a  certain  period 
held  proper  and  valid. 

City  of  Philadelphia  v.  Jewell's 
Estate  (Pa.)  20  Atl.  281.  In  the  ab- 
sence of  a  contract  providing  the 
time  for  the  completion  of  the  pav- 
ing, general  ordinances  control. 
Southern  Pav.  Co.  v.  City  of  Chat- 
tanooga (Tenn.  Ch.  App.)  48  S.  W. 
92;  Boyd  v.  City  of  Milwaukee,  92 
Wis.  456.  A  provision  in  a  paving 
contract  requiring  the  contractor  to 
keep  the  pavement  in  good  repair 
for  five  years,  except  repairs  due  to 
cutting  through  the  pavement  for 
laying  pipes,  etc.,  renders  an  as- 
sessment therefor  against  the  prop- 
erty owners  invalid,  the  charter  of 
the  city  requiring  the  expenses  of 
repairing  streets  to  be  paid  from  the 
ward  fund. 

ses  Rosetta  Gravel  Pav.  &  Imp.  Co. 
v.  City  of  New  Orleans,  50  La.  Ann. 
1173,  24  So.  237. 

see  Drew  v.  Smith,  38  Cal.  325. 
Construing  a  contract  for  the  grad- 
ing of  streets  where  the  statutes 
declare  that  eight  hours  labor  shall 
constitute  a  day's  work  in  all  cases 
where  the  same  is  performed  by  the 
authority  of  any  municipal  govern- 
ment. 

Palmer  v.  Burnham  (Cal.)  47  Pac. 
599.  Construing  statutes  of  1885,  p. 
151,  §  6,  regarding  the  time  of  com- 
mencement and  completion  of  all 
works  of  public  improvement.  Board 
of  Public  Works  of  Denver  v.  Hay- 
den,  13  Colo.  App.  36,  56  Pac.  201. 
The  term  "street"  in  a  charter  when 
not  specified  includes  the  whole  area 
from  the  line  of  lots  on  one  side  to 
the  line  of  lots  on  the  other  includ- 
ing sidewalk  areas. 

City  of  Chicago  v.  People,  56  111. 
327;  City  of  New  Albany  v.  Conger, 
18  Ind.  230,  47  N.  E.  852.  Constru- 
ing §  3625.  Rev.  St.  1894  apportion- 


§  285 


POWER    TO    CONTRACT. 


639 


fng  the  cost  of  street  Improvements 
and  holding  municipalities  liable  for 
public  grounds  and  street  and  alley 
crossings. 

Ryan  v.  City  of  Dubuque,  112  Iowa, 
284,  83  N.  W.  1073;  City  of  Leaven- 
worth  v.  Rankin,  2  Kan.  357;  Ross- 
valley  v.  City  of  New  Orleans,  19  La. 
Ann.  7;  Rens  v.  City  of  Grand  Rap- 
ids, 73  Mich.  237.  Construing  the 
provisions  of  a  contract  providing 
for  the  payment  of  "extras."  Allen 
v.  Rogers,  20  Mo.  App.  290.  Constru- 
ing the  provision  of  a  contract  for 
public  work  calling  for  the  perform- 
ance of  "extra  work."  Gibson  v. 
Owens,  115  Mo.  258, 21  S.  W.  1107.  A 
single  contract  may  cover  work  au- 
thorized by  ordinances  passed  at  dif- 
ferent times.  Saxton  Nat.  Bank  v. 
Haywood,  62  Mo.  App.  550.  Street 
railway  tracks  not  included  within 
a  contract  for  the  macadamizing, 
curbing  and  guttering  of  a  certain 
street.  McQuiddy  v.  Brannoch,  70 
Mo.  App.  535.  Construing  a  con- 
tract provision  fixing  the  time  for 
completion  of  work. 

Palladino  v.  City  of  New  York,  56 
Hun,  565,  10  N.  Y.  Supp.  66.  Spe- 
cial provisions  and  stipulations  in  a 
contract  for  the  improvement  and 
grading  of  a  street  control  the  gen- 
eral language  of  the  contract  specifi- 
cations. 

Ferdinand  v.  City  of  New  York, 
56  Hun,  623,  13  N.  Y.  Supp.  226. 
Construing  and  determining  that 
provision  of  a  contract  providing 
for  its  reletting  in  case  of  abandon- 
ment of  the  work  by  the  contractor. 

Barry  v.  City  of  New  York,  38 
App.  Div.  632,  56  N.  Y.  Supp.  1049. 
No  recovery  can  be  had  for  filling 
beneath  the  surface  of  the  street  as 
shown  by  lines  in  a  plan  made  a 
part  of  the  contract  and  represent- 
ing the  surface  of  the  ground. 


Phelan  v.  City  of  New  York,  119 
N.  Y.  86;  Dean  v.  City  of  New  York, 
167  N.  Y.  13,  reversing  45  App.  Div. 
605,  61  N.  Y.  Supp.  374.  The  work 
under  the  contract  limited  to  that 
shown  by  the  plan  accompanying 
the  contract  irrespective  of  ordinance 
conditions  authorizing  it.  McManus 
v.  City  of  Philadelphia,  195  Pa.  304. 

Naughton  v.  City  of  Sioux  Falls, 
3  S.  D.  90,  52  N.  W.  324,  holds  that 
when  a  contract  provides  for  the  do- 
ing of  specific  work  and  the  furnish- 
ing of  materials  but  is  silent  as  to 
the  payment  of  the  expense,  the  per- 
son doing  the  work  can  collect  his 
pay  in  the  regular  manner.  McEwen 
v.  City  of  Nashville  (Tenn.  Ch. 
App.)  36  S.  W.  968;  City  of  Waco 
v.  Chamberlain  (Tex.  Civ.  App.)  45 
S.  W.  191;  Town  of  Elma  v.  Carney, 
9  Wash.  466;  Morse  v.  Gilman,  18 
Wis.  373. 

867  People's  Pass.  R.  Co.  v.  Mem- 
phis R.  Co.,  77  U.  S.  (10  Wall.)  38; 
City  of  Goldsboro  v.  Moffett,  49  Fed. 
213.  A  failure  to  commence  work 
considered  a  breach  of  the  contract 
resulting  in  the  forfeiture  of  a  bond 
given  "for  the  faithful  performance 
of  their  contract." 

Smith  v.  Salt  Lake  City,  83  Fed. 
784.  Construing  a  contract  for  the 
construction  of  an  aqueduct  and  pre- 
suming the  making  of  the  prelim- 
inary survey  and  location  of  the 
line.  Salt  Lake  City  v.  Smith,  104 
Fed.  457.  A  contract  for  the  con- 
struction of  a  conduit  construed 
with  reference  to  the  character  of 
extra  work  payment  for  which  might 
be  recovered. 

County  of  Pike  v.  Hosford,  11  111. 
170.  The  unpaid  balance  due  on  a 
contract  for  the  construction  of  a 
bridge  bears  interest  from  the  date 
of  the  payment  and  refusal  to  pay. 

City  of  Chicago  v.  Weir,  165   111. 


640 


POWERS. 


§  285 


na>?ce,86S  of  works  of  public  improvement;  the  construction,869 
lepairing,870  and  maintenance871  of  sewers,  and  the  construction 
of  sidewalks.872 


582.  Construing  the  provisions  of 
a  contract  with  a  city  to  dig  a  water 
tunnel  and  shafts,  relative  to  the 
payment  at  a  fixed  price  "of  rock 
excavation"  "earth  tunneling"  and 
where  the  "tunnel  is  partly  in  earth 
and  partly  in  rock."  City  of  Chi- 
cago v.  Duffy,  179  111.  447.  Constru- 
ing specifications  of  a  contract  for 
the  construction  of  a  water  tunnel 
fixing  the  price  where  "the  tunnel 
was  partly  in  earth  and  partly  in 
rock." 

Darnell  v.  Keller,  18  Ind.  App.  103, 
45  N.  E.  676;  Fox  v.  Bay  City,  122 
Mich.  499,  81  N.  W.  352;  McQuiddy 
v.  Brannock,  70  Mo.  App.  535;  City 
of  Camden  v.  Ward,  67  N.  J.  Law, 
558,  52  Atl.  392;  Slattery  v.  City 
of  New  York,  31  App.  Div.  127,  52 
N.  Y.  Supp.  546;  Jones  v.  Savage,  24 
Misc.  158,  53  N.  Y.  Supp.  308.  Con- 
struction of  a  public  building.  Del- 
afield  v.  Village  of  Westfield,  169  N. 
Y.  582,  62  N.  E.  1095;  Mairs  v.  City 
of  New  York,  52  App.  Div.  343,  65 
N.  Y.  Supp.  160.  Construing  a  con- 
tract provision  that  all  losses  result- 
ing from  the  nature  of  the  work  or 
imperfections  of  construction  should 
be  sustained  by  the  contractor. 

O'Brien  v.  City  of  New  York,  139 
N.  Y.  543.  Construing  the  provision 
of  a  contract  for  the  construction  of 
an  aqueduct  relative  to  filling  with 
masonry  at  the  expense  of  the  con- 
tractor the  excess  of  the  tunnel  area. 
Hasbrouck  v.  City  of  Milwaukee,  17 
Wis.  266. 

ses  Bork  v.  City  of  Buffalo,  37  N. 
Y.  State  Rep.  332. 

sea  Rauer  v.  Lowe,  107  Cal.  229, 
40  Pac.  337;  McBean  v.  City  of  San 


Bernardino,  96  Cal.  183;  White  v. 
Harris,  103  Cal.  528;  Campau  v.  City 
of  Detroit,  106  Mich.  414,  64  N.  W. 
336.  A  substantial  change  cannot 
be  made  in  plans  fixing  the  course 
and  location  of  a  sewer  except  as 
authorized  by  the  council  ordering 
in  the  first  instance  the  construc- 
tion of  the  sewer. 

Gartner  v.  City  of  Detroit,  131 
Mich.  21,  90  N.  W.  690;  Whittemore 
v.  Sills,  76  Mo.  App.  248.  A  delay 
in  the  construction  of  a  sewer  oc- 
casioned by  an  injunction  is  within 
the  provisions  of  a  contract  provid- 
ing generally  for  delays. 

City  of  New  York  v.  Reilly,  59 
Hun,  501,  13  N.  Y.  Supp.  521.  In 
the  absence  of  a  formal  notice  to 
commence  work  upon  a  sewer  by  the 
proper  official,  there  can  be  no  for- 
feiture of  the  contract  for  a  failure 
to  complete  it  within  a  specified 
time,  although  the  contractor  had 
voluntarily  proceeded  with  the  work. 

Smith  v.  City  of  New  York,  82 
Hun,  570,  31  N.  Y.  Supp.  783.  A 
sewer  is  "in  progress"  within  the 
meaning  of  laws  of  1873,  c.  335, 
when  the  excavation  was  begun  by  a 
force  of  fifty-four  men  and  a  num- 
ber of  teams. 

Jones  v.  City  of  New  York,  170 
N.  Y.  580,  63  N.  E.  1118,  affirming 
Jones  v.  City  of  New  York,  60  App. 
Div.  622,  70  N.  Y.  Supp.  296;  Mar- 
shall v.  City  of  San  Antonio  (Tex. 
Civ.  App.)  63  S.  W.  138;  State  v. 
Liebes,  19  Wash.  589;  Markey  v. 
City  of  Milwaukee,  76  Wis.  349,  45 
N.  W.  28.  The  municipal  authori- 
ties have  no  right  to  arbitrarily 
shorten  a  sewer  against  the  con- 


*   286                                POWER  TO  CONTRACT.                                      641 

§  286.    Arbitration  clauses. 

The  policy  of  the  law  is  the  avoidance  of  litigation  and  courts, 
therefore,  generally  sustain  clauses  in  contracts  providing  for  the 
submission  'of  disputes  to  arbitrators  to  be  selected  in  the  man- 
ner provided  by  the  contract.873  The  rule  applied  in  the  con- 
tractor's protest  when  all  conditions  court  held  that  this  would  sustain 
of  the  contract  have  been  complied  a  finding  that  no  contract  was  ever 
with.  Burnham  v.  City  of  Milwau-  made. 

kee,   100   Wis.    55,   75   N.   W.    1014.  STS  Brady    v.    City    of    Brooklyn, 

All    oral    agreements    between    the  1  Barb.   (N.  Y.)   584;   Jones  v.  City 

city  authorities  and  the  contractor  of  New  York,  60  App.  Div.  161,  70 

are  merged  in  the  subsequent  writ-  N.   Y.    Supp.   46.     The    decision   of 

ten  contract.  such   an  arbitrator  in  the  absence 

Herman    v.    City    of    Oconto,    110  of   fraud    or   mistake   is   conclusive 

Wis.  660,  86  N.  W.  681.     A  contract  on    the    parties.     Marshall    v.    City 

for   sewer   construction   calling   for  of    San    Antonio    (Tex.    Civ.    App.) 

the  expenditure  of  a  sum  of  money  63  S.  W.  138;    Burnham  v.  City  of 

a  portion  of  which  is  in  excess  of  Milwaukee,   100  Wis.   55,  75   N.  W. 

the   constitutional    limit    of   indebt-  1014. 

edness  is  valid  to  the  extent  of  the  Salt  Lake  City  v.  Smith,  104  Fed. 
constitutional  limit  and  invalid  as  457.  "The  stipulations  in  such  con- 
to  the  excess;  the  contract  being  tracts  that  all  questions,  differences 
divisible.  or  controversies  which  may  arise 

870  Seifert  v.  City  of  Brooklyn,  15  between    the    corporation    and    the 
Abb.  N.  C.  (N.  Y.)  97;  Van  Rensse-  contractor  under  or  in  reference  to 
laer  v.  City  of  Albany,  15  Abb.   N.  the  agreement  and  the  specifications, 
C.   (N.  Y.)  457.  or  the  performance  or  nonperform- 

871  Van  Vorst   v.   Jersey   City,   27  ance  of  the  work  to  which  they  re- 
N.  J.  Law  (3  Dutch.)  493.  late,    shall   be    referred   to   the   en- 

872  Schwiesau   v.   Mahon,  110  Cal.  gineer,  and  his  decision  thereof  shall 
543;    Gray   v.   Richardson,   124   Cal.  be   final   and  conclusive   upon  both 
460.     A  contract  provided  that  the  parties,   does  not  give  the  engineer 
contractor  should  construct  certain  jurisdiction  to  determine  that  work 
concrete    sidewalks    in     accordance  which   is   not   done   under  the  con- 
with   the  specifications   annexed   to,  tract    or  'specifications,    and    which 
and   made   a  part  of,   the   contract,  is  not  governed  by  them,  was  per- 
When   the   contract  was   offered   in  formed    under    the   agreement    and 
evidence  there  were  no  specifications  is  controlled  by  it,  and  his  decision 
annexed  and  it  was  not  shown  that  to  that  effect  is  not  conclusive  upon 
there   had  been  any  prepared;   one  the    parties.      Neither    an    engineer 
witness   testified   that   shortly   after  nor  a  judge   who   has   no  jurisdic- 
the  contract  was  executed  and  filed  tion  of  a  question  can  confer  juris- 
in  the  office  of  the   superintendent  diction   of   it   upon    himself   by   er- 
of  streets,  he  examined  it,  and  no  roneously  deciding  that  he  has  it." 
specifications    were    annexed.     The 

Abb.  Corp. — 41. 


642  POWERS.  §  287b 

struction  of  railroad  grading  contracts  quite  universally  holds 
in  connection  with  contracts  of  public  corporations  involving 
the  construction  of  public  works.874 

§  287.    Corporate  contracts;  their  performance. 

(a)  In  general.    A  contract  may  be  illegal  in  part,  if  it  is  sep- 
arable, and  such  is  usually  the  case,  in  those  for  the  construction 
of  public  works  or  the  supply  of  municipal  commodities,  that  por- 
tion which  is  legal  can  be  enforced  by  the  contractor  and  its  per- 
formance to  that  extent  insisted  upon.875    A  contract  legal  as  de- 
termined by  the  principles  laid  down  in  the  preceding  sections 
can  be  enforced  as  an  entirety  if  performed  in  the  manner,  time 
and  under  the  conditions  required  by  its  terms.878 

(b)  Manner  of  performance.    Such  contracts  usually  provide 
that  the  work  done  or  materials  or  commodities  furnished  shall 
follow  specifications  or  be  performed  to  the  satisfaction  of  some 
designated  official,877  or  that  the  work  shall  be  done  in  a  good 
and  workmanlike  manner.878     To  afford  a  contractor  a  claim 
for  the  payment  for  work  done  or  materials  furnished  by  him 
under  such  provisions,  the  decision  in  good  faith  that  the  con- 
ditions have  been  complied  with  by  such  official  is  necessary,879 

«74  Murphy  v.  City  of  Yonkers,  45  Dist,   112  Wis.   354,   88  N.  W.   310, 

App.  Div.   621,  60  N.  Y.   Supp.   940.  58  L.  R.  A.  100;   Thomson  v.  Town 

An    engineer    thus    elected    has    no  of  Elton,  109  Wis.  589.    Also  59  Am. 

authority,    however,    to    pass    upon  St  Rep.  886. 

questions   other  than  those  provid-  87«  Buckman  v.  Landers,  111  Cal. 

ed  by  the  contract  to  be  determined  347,  43   Pac.   1125;    Newport  Wharf 

by  him.     Smith  v.  City  of  Philadel-  &  Lumber  Co.  v.  Drew,  125  Cal.  585, 

phia,  13  Phila.  (Pa.-)  177;  Forristal  58  Pac.  187;  Reid  v.  Clay,  134  Cal. 

v.  City  of  Milwaukee,  57  Wis.  628;  207,   66   Pac.   262;    Cody   v.   City   of 

Burnham  v.  City  of  Milwaukee,  100  New  York,  71  App.  Div.  54,   75  N. 

Wis.  55,  75  N.  W.  1014;    Dwyer  v.  Y.  Supp.  648;  Brady  v.  City  of  New 

Board   of   Education,   27   App.   Div.  York,  132  N.  Y.  415. 

87,   50   N.   Y.   Supp.   123;    Lawrence  STT  Silsby    Mfg.    Co.    v.    Town    of 

v.  City  of  New  York,  29  App.  Div.  Chico,  24  Fed.  893;   Gearty  v.  City 

298,  51  N.  Y.  Supp.  416.  of  New  York,  171  N.   Y.  61,   63   N. 

STB  Chapman    v.    Douglas    County,  E.  804.     But  power  conferred  upon 
107  U.  S.  348;  Gamewell  Fire-Alarm  officials  must  be  exercised  with  fair- 
Tel.  Co.  v.  City  of  Laporte,  42   C.  ness  and  in  good  faith,  not  in  an 
C.   A.   405,   102   Fed.   417;    Stebbins  arbitrary  manner. 
v.  Perry  County,  167  111.  567;  Stock-  STS  Murphy  v.  City  of  Yonkers,  45 
dale  v.  School  Dist.  No.  2,  47  Mich.  App.  Div.  621,  60  N.  Y.  Supp.  940. 
226;    McGillivray    v.    Joint    School  879  Markey  v.  City  of  Milwaukee, 


S  287d 


POWER    TO    CONTRACT. 


643 


and  a  decision  under  such  circumstances  will  estop  both  parties 
from  raising  the  question  of  a  noncompliance  with  the  contract. 

(c)  Time  of  performance.    A  substantial  compliance  with  pro- 
visions fixing  the  time  for  the  commencement  or  completion  of 
public  work,  unless  time  is  made  the  essence  of  the  contract,  is 
all  that  .is  necesary  to  give  a  contractor  the  right  of  compensa- 
tion for  work  done  by  him.880 

(d)  Other  conditions.     Another  provision  often  found  in  such 
contracts  is  one  requiring  the  contractor  to  guarantee  the  quality 
of  his  work,  both  as  to  materials  and  workmanship.881    The  guar- 


76  Wis.  349,  45  N.  W.  28;  Jones  v. 
Town  of  Marlborough,  70  Conn.  583, 
40  Atl.  460. 

esc  Pitcairn  v.  Philip  Hiss  Co.,  113 
Fed.  493;  City  of  Elizabeth  v.  Fitz- 
gerald (C.  C.  A.)  114  Fed.  547.  The 
rule  also  held  to  apply,  in  this  case, 
to  the  performance  of  the  work. 
See  also  as  holding  the  same,  Mid- 
dlesborough  Town  &  Land  Co.  v. 
Knoll,  21  Ky.  L.  R.  1399,  55  S.  W. 
205;  Desmond-Dunne  Co.  v.  Fried- 
man-Dcscher  Co.,  162  N.  Y.  486,  56 
N.  E.  995;  McCartan  v.  Inhabitants 
of  Trenton,  57  N.  J.  Eq.  571. 

88i  Jones  v.  Town  of  Marlborough, 
70  Conn.  583,  40  Atl.  460.  A  con- 
tractor cannot  recover  on  a  quan- 
tum meruit  for  repairs  not  made 
according  to  provided  stipulations. 
In  this  case  the  person  doing  the 
work  was  not  to  be  paid  until  the 
work  was  inspected  and  accepted  as 
satisfactory.  It  was  not  satisfac- 
tory and  was  not  accepted.  The 
trial  court  nevertheless  allowed  a 
recovery  on  a  quantum  meruit.  In 
reversing  this  the  appellate  court 
said:  "The  trial  court  applied  in 
his  favor  the  doctrine  that  in  cer- 
tain cases  there  may  be  a  recovery 
for  the  value  of  labor  and  materials 
furnished  under  a  special  contract, 
not  strictly  performed  where  the 
defendant  has  availed  himself  of. 


and  been  benefited  by  them  and  the 
plaintiff  was  not  in  willful  default. 
This  is  not  allowed  in  every  in- 
stance where  the  part  performance 
has  been  beneficial.  It  must  also 
be  shown  that  the  benefit  has  been 
appropriated  under  circumstances 
sufficient  to  raise  an  implied  prom- 
ise to  pay  for  the  reasonable  value 
of  what  has  been  received,  notwith- 
standing the  breach  of  contract 
Towns  do  not  own  their  roads  nor 
use  them.  The  public  use  them  and 
towns  are  benefited  by  their  repair 
only  so  far  as  they  may  be  thus 
relieved  of  a  statutory  responsibil- 
ity for  their  proper  maintenance. 
It  may  be  that  a  promise  to  pay  the 
value  of  permanent  improvements, 
such  as  a  stone  pavement  or  a  new 
bridge,  furnished  under  a  contract, 
though  not  in  full  accordance  with 
it,  would,  under  some  circumstances, 
if  they  were  retained  as  part  of  a 
highway,  be  implied  by  law;  but  in 
the  case  of  ordinary  repairs,  made 
by  one  receiving  an  annual  salary, 
the  payment  of  which  is  made  de- 
pendent on  the  favorable  report 
of  an  inspector,  no  such  obligation 
can  arise.  The  town  was  not  ex- 
onerated from  liability  under  the 
statute  unless  its  roads  were  in  fact 
kept  in  good  condition  and  as  re- 
spects those  to  whom  it  entrusted 
the  fulfillment  of  this  duty  in  its 


644 


POWERS. 


.§  2.1 


antee  being  made  efficient  either  through  the  giving  of  a  bond 
by  the  contractor  for  a  specified  time  to  maintain  in  good  con- 
dition the  work  or  to  make  all  repairs  necessary  on  account  of 
imperfections  in  the  work  or  materials,882  or  the  retention  of  a 
certain  percentage  of  the  contract  price  for  the  purpose  of  ac- 
cumulating a  fund  from  which  such  repairs  can  be  made,  the 
work  completed,  or  the  work  redone  if  defective,  by  the  public 
corporation.883  These  provisions  are  generally  held  valid  despite 
the  'objection  that  the  cost  of  the  improvement  or  the  public  work 


behalf,  it  had  the  right  to  contract 
for  making  the  certificate  of  inspec- 
tion the  sole  criterion  of  what  that 
condition  was." 

882  Meriwether  v.  Lowndes  Coun- 
ty, 89  Ala.  362,  7  So.  198.  A  con- 
tract provision  to  keep  a  bridge  in 
good  repair  and  safe  condition  for 
continuous  use  during  a  period  of 
five  years  held  to  apply  where  the 
bridge  constructed  was  washed 
away  by  a  flood  within  that  time. 

Osburn  v.  City  of  Lyons,  104  Iowa, 
160,  73  N.  W.  650.  Such  a  condi- 
tion does  not  make  the  contractor 
liable  for  repairs  made  necessary  by 
excavations  in  the  streets. 

City  of  Louisville  v.  Selvage,  21 
Ky.  L.  R.  349,  51  S.  W.  447;  State 
v.  City  of  New  Orleans,  51  La. 
Ann.  699;  State  v.  New  Orleans  & 
C.  R.  Co.,  52  La.  Ann.  1570.  An  ob- 
ligation to  keep  a  street  in  good  re- 
pair may  involve  the  use  of  "new 
material."  Such  material  may  be 
used  in  making  the  ordinary  re- 
pairs required  by  the  conditions  of 
the  contract.  Warren-Scharf  Asphalt 
Pav.  Co.  v.  City  of  St.  Paul,  69  Minn. 
453,  72  N.  W.  711;  Robertson  v.  City 
of  Omaha,  55  Neb.  718,  44  L.  R.  A. 
434;  Wilson  v.  Inhabitants  of  Tren- 
ton, 61  N.  J.  Law,  599,  44  L.  R.  A. 
540,  40  Atl.  575. 

sss  j.   M.    Griffith   Co.    v.    City   of 


Los  Angeles  (Cal.)  54  Pac.  383; 
King  v.  Mahaska  County,  75  Iowa, 
329,  39  N.  W.  636;  Wilson  v.  In- 
habitants of  Trenton,  61  N.  J.  Law, 
599,  40  Atl.  575.  "Property  own- 
ers are  not  chargeable  with  the  price 
of  such  improvements  (paving)  but 
only  with  an  equivalent  for  the  spe- 
cial benefits  they  derive  therefrom. 
Such  an  equivalent  cannot  exceed 
the  reasonable  value  of  the  improve- 
ment and  hence  the  municipality  it- 
self, not  the  assessable  property  own- 
ers, must  bear  the  excess  of  price 
beyond  fair  cost.  If,  therefore,  the 
commissioners  who  levy  an  assess- 
ment for  this  improvement  charge 
upon  the  property  owners  anything 
beyond  the  fair  cost  of  laying  a 
good  pavement,  their  assessment 
will  to  that  extent  be  illegal.  The 
same  evidence  which  would  now 
show  that  the  nominal  price  for 
paving  includes  compensation  for 
the  guaranty  and  for  repaving  will 
be  then  available  for  the  same  pur- 
pose, and  if  produced,  will  result 
in  reducing  the  assessment  to  such 
sum  as  would  have  secured  a  prop- 
er pavement  without  the  added  stip- 
ulations." O'Brien  v.  City  of  New 
York,  15  N.  Y.  Supp.  520;  Jones  v. 
Savage,  24  Misc.  158,  53  N.  Y.  Supp. 
308;  People  v.  Third  Nat.  Bank  of 
Syracuse,  159  N.  Y.  382. 


§  288 


POWER    TO    CONTRACT. 


645 


may  sometimes  be  arbitrarily  or  unnecessarily  increased  in  viola- 
tion of  some  charter  or  statutory  obligation  or  rule.884 

(e)  Performance  by  the  public  corporation  as  a  party  to  the 
contract.  The  performance  of  the  contract  in  accordance  with 
its  terms  and  conditions  is  as  obligatory  upon  the  public  cor- 
poration as  upon  the  other  party  or  parties  to  it.  The  corpora- 
tion cannot,  when  the  contract  has  been  fully  performed  by  the 
other  party,  willfully  refuse  to  perform  its  obligations  especi- 
ally where  it  has  received  and  retains  its  benefits.885 

§  288.    A  contract ;  its  performance ;  acceptance  of  work. 

Contracts  for  the  construction  of  public  works  usually  require 
that  the  work  shall  be  constructed  under  the  supervision  and 
to  the  satisfaction  of  some  designated  official  or  official  body,  and 
further,  that  upon  the  final  completion  of  the  whole,  the  com- 
pleted work  shall  be  inspected  and  formally  accepted  in  the 
manner  provided  either  by  the  charter  of  the  corporation  or 
the  terms  of  the  contract.886  In  the  absence  of  fraud,  such  action 


884  Brown  v.  Jenks,  98  Cal.  12; 
City  of  Portland  v.  Bituminous  Pav. 
Co.,  33  Or.  307,  44  L.  R.  A.  527. 
See,  however,  as  holding  to  the  con- 
trary, the  cases  of  Alameda  Macad- 
amizing Co.  v.  Pringle,  130  Cal.  226, 
62  Pac.  394,  52  L.  R.  A.  264;  and 
Wilson  v.  Inhabitants  of  Trenton, 
61  N.  J.  Law,  599,  40  Atl.  575,  44  L. 
R.  A.  540. 

sss  Town  of  Gosport  v.  Pritchard, 
156  Ind.  400,  59  N.  E.  1058.  Where 
a  town  refuses  payment  claiming 
the  contract  void,  action  should  be 
brought  for  the  amount  due  upon 
the  contract.  City  of  Logansport  v. 
Dykeman,  116  Ind.  15;  Seward  v. 
Town  of  Liberty,  142  Ind.  551;  City 
of  New  Orleans  v.  Wardens  of  St. 
Louis  Church,  11  La.  Ann.  244; 
Western  Sav.  Fund  Soc.  v.  City  of 
Philadelphia,  31  Pa.  175;  Norton  v. 
City  of  Roslyn,  10  Wash.  44.  See, 
also,  authorities  cited  §  279. 

sse  Reid  v.  Clay,  134  Cal.   207,  66 


Pac.  262.  In  this  case  the  court 
had  under  consideration  a  statute 
(Gen.  St.  Cal.  1885,  p.  151)  which 
provided  that  the  materials  used  in 
street  improvements  "shall  comply 
with  the  specifications  and  be  to  the 
satisfaction  of  [the]  superintendent 
of  streets."  A  contract  for  street 
improvements  provided  that  the  con- 
tractor must  do  the  work  "in  a  good 
and  workman-like  manner,  under  the 
direction  and  to  the  satisfaction  of 
the  superintendent  of  streets,  in 
compliance  with  the  specifications 
hereunto  attached  and  made  part  of 
this  contract."  The  court  held  this 
provision  a  sufficient  compliance 
with  the  statutory  requirement. 

Town  of  Colorado  City  v.  Town- 
send,  9  Colo.  App.  249;  Gulick  v. 
Connely,  42  Ind.  134.  The  accept- 
ance by  city  authorities  of  work  is 
only  prima  facie  evidence  that  it 
has  been  done  in  substantial  com- 
pliance with  the  terms  of  the  con- 


POWERS. 


§  288 


establishing  the  completion  of  work,  and  the  fact  that  the  contract 
in  all  its  terms  and  conditions  has  been  complied  with,  is  con- 
clusive and  binding  upon  both  parties.887  Official  action  of  this 
nature  is  especially  conclusive  and  binding  upon  abutting  prop- 
erty owners  who  raise  no  objection  until  the  completion  of  the 
contract  and  the  acceptance  of  the  work.888  A  certificate  of  per- 
formance, approval  or  acceptance  as  it  is  usually  termed  is  gen- 


tract.  Creston  Waterworks  Co.  v. 
City  of  Creston,  101  Iowa,  687; 
Dumesnil  v.  Louisville  Artificial 
Stone  Co.,  109  Ky.  1,  58  S.  W.  371; 
Richardson  v.  Mehler,  111  Ky.  408, 
63  S.  W.  957. 

SST  City  of  Omaha  v.  Hammond,  94 
U.  S.  98;  Fitzgerald  v.  Walker,  55 
Ark.  148;  Ryan  v.  City  of  Dubuque, 
106  Iowa,  312,  76  N.  W.  703;  White- 
field  v.  Hippie,  11  Ky.  L.  R.  386, 
12  S.  W.  150;  Alpena  City  Water 
Co.  v.  City  of  Alpena,  130  Mich.  518, 
90  N.  W.  323.  The  rule  applied  to 
a  contract  for  the  supply  of  water, 
and  full  payment  by  the  city  from 
time  to  time  for  water  furnished 
under  the  contract  held  to  consti- 
tute an  estoppel. 

Schliess  v.  City  of  Grand  Rapids, 
131  Mich.  52,  90  N.  W.  700;  O'Dea 
v.  City  of  Winona,  41  Minn.  424; 
McCormick  v.  City  of  St.  Louis,  166 
Mo.  315,  65  S.  W.  1038;  O'Brien  v. 
City  of  New  York,  15  N.  Y.  Supp. 
520;  Smith  v.  City  of  New  York, 
12  App.  Div.  391,  42  N.  Y.  Supp.  522; 
People  v.  Coler,  26  Misc.  509,  57  N. 
Y.  Supp.  461;  People  v.  Coler,  58 
App.  Div.  131,  68  N.  Y.  Supp.  448; 
Brady  v.  City  of  New  York,  132  N. 
Y.  415. 

Peck  v.  State,  137  N.  Y.  372.  Where, 
however,  there  is  no  authority  vest- 
ed in  certain  officials  to  make  such 
certificate  and  accept  work,  their 
action  in  this  respect  will  not  he 


binding.     Malone  v.   City   of  Phila- 
delphia,   12    Phila.    (Pa.)    270. 

sss  McCoy  v.  Able,  131  Ind.  417, 
30  N.  E.  528,  31  N.  E.  453.  The 
court  here  say:  "The  contract  sub- 
mitted many  things  to  the  discre- 
tion and  judgment  of  the  engineer, 
and,  if  the  contract  was  not  as  defi- 
nite and  certain  as  the  law  requires, 
the  appellees  ought  to  have  made 
that  question  before  the  work  was 
completed.  Principle  and  authority 
forbid  that  property  owners  should 
be  allowed  to  stand  by  inactive  and 
passive  until  after  the  work  has 
been  done  and  then  come  in  and 
take  from  a  contractor  the  value  of 
his  work  and  materials  without 
compensation.  For  such  persons  the 
law  has  no  very  tender  regard.  They 
ought  to  move  promptly  and  not 
wait  until  the  contractor  has  ex- 
pended time  and  money  under  the 
directions  and  requirements  of  the 
board  of  commissioners  and  its  en- 
gineer. As  the  contractor  in  this 
instance  has  obeyed  the  orders  of 
the  proper  officers,  has  followed  the 
construction  placed  upon  the  con- 
tract by  them  and  has  fully  com- 
pleted his  work,  the  appellees  are 
estopped  from  questioning  his  right 
to  compensation  upon  the  ground 
that  the  contract  did  not  conform  to 
the  law."  City  of  Evansville  v.  Pfis- 
terer,  34  Ind.  36;  City  of  Logansport 
v.  Uhl,  99  Ind.  531;  Stewart  v.  Wy- 
andotte  County  Com'rs,  45  Kan.  708; 


289 


POWER    TO    CONTRACT. 


647 


erally  necessary  that  the  contractor  may  recover  from  the  public 
corporation  the  compensation  to  which  he  is  entitled  according 
to  the  terms  of  the  contract.888 


§  289.    Fraud  as  rendering  a  contract  invalid. 

The  usual  rule  that  the  existence  of  fraud  either  in  the  execu- 
tion or  the  performance  of  a  contract  will  entitle  the  party  seek- 


Smith  v.  Hubbard,  85  Tenn.  306,  2 
S.  W.  569. 

889  City  of  Elizabeth  v.  Fitzger- 
ald (C.  C.  A.)  114  Fed.  547.  A 
contractor  is  not  deprived,  however, 
of  the  right  to  recover  for  work 
which  has  been  done  in  substan- 
tial conformity  with  the  conditions 
of  the  contract  because  the  city  offi- 
cials arbitrarily  and  unreasonably 
refuse  to  accept  and  approve  the 
work  as  required  by  law.  The  court 
here  say:  "The  second  question  pro- 
pounded to  the  jury  correctly  as- 
sumed that  the  contract  provided 
for  certification  of  the  work  by  the 
city  surveyor  and  for  its  approval 
and  acceptance  by  the  committee  on 
streets  and  parks  as  well  as  by  the 
street  commissioner  and  the  in- 
spector, and  also  that  such  certifica- 
tion, approval  and  acceptance  had 
been  severally  refused;  so  that  the 
only  question  submitted  was,  were 
they  unreasonably  refused?  We 
have  already  said  that  this  question 
if  legally  pertinent,  was  properly  re- 
ferred to  the  jury,  and  we  now  add 
that  in  our  opinion,  it  was  a  ma- 
terial and  important  question  in,  the 
cause.  As  was  said  by  the  learned 
trial  judge,  the  plaintiff  could  not, 
by  unreasonable  refusals  to  certify 
and  approve  his  work  'be  deprived 
of  the  fruits  of  his  labor.'  *  *  * 
Hence,  it  must  be  understood  that 
by  answering  the  second  question 


affirmatively,  the  jury  found  that 
the  officers  of  the  city  in  refusing 
the  certification  and  approval  in 
question  had  acted,  not  upon  hon- 
est belief  that  the  work  had  not  been 
done  according  to  the  contract,  but 
whimsically  and  without  cause;  and 
surely  such  conduct,  may,  without 
exaggeration,  be  characterized  as 
unreasonable.  Had  then  the  defend- 
ant's officers  the  right  to  arbitrarily 
refuse  the  certificates  and  approval 
called  for  by  the  contract?  Both  in 
reason  and  upon  authority  it  is  clear 
that  they  had  not." 

Jones  v.  Town  of  Marlborough,  70 
Conn.  583,  40  Atl.  460;  Campbell 
County  v.  Youtsey,  11  Ky.  L.  R.  529, 
12  S.  W.  305;  Gosnell  v.  City  of 
Louisville,  22  Ky.  L.  R.  365,  57  S. 
W.  476;  Kansas  City  v.  Walsh,  88 
Mo.  App.  271;  Bowery  Nat.  Bank  v. 
City  of  New  York,  2  T.  &  C.  (N.  Y.) 
523;  Weston  v.  City  of  Syracuse, 
158  N.  Y.  274,  43  L.  R.  A.  678;  Smith 
v.  Hubbard,  85  Tenn.  306,  2  S.  W. 
569.  The  use  by  the  public  for  five 
years  of  a  bridge  and  the  fact  that 
jurors  as  provided  by  law  appointed 
by  the  county  court,  examined  and 
approved  it,  estop  the  municipality 
from  setting  up  as  a  defense  its 
lack  of  character  as  a  public  bridge. 
Smith  v.  Jefferson  County,  16  Tex. 
Civ.  App.  251,  41  S.  W.  148.  See, 
also,  14  Am.  St.  Rep.  422. 


648  POWERS.  §  290 

ing  it  to  equitable  relief  or  to  a  cancellation  and  rescission  of 
the  contract  applies  to  the  contracts  of  public  corporations.890 

§  290.    The  right  of  the  parties  to  maintain  an  action  based  upon 
a  contract. 

In  the  execution  of  every  contract  for  the  construction  or  main- 
tenance of  either  a  work  of  local  or  public  improvement,  the  pub- 
lic corporation  and  the  contractor  are  the  direct  parties.  The 
moneys  received  by  the  contractor  for  his  work,  and  the  labor 
and  materials  furnished,  are  usually  raised  by  the  levy  of  taxes 
upon  abutting  property  and  in  many  instances  his  right  to  the  re- 
covery of  compensation  due  him  under  the  contract  is  limited  to 
the  sums  collected  from  such  taxes  and  the  obligation  due  from 
the  corporation  to  see  that  they  are  levied  and  collected  by  the 
proper  authorities.  Indirectly,  there  is  also  another  party  in- 
terested in  the  performance  of  the  contract,  namely,  the  abutting 
property  owner,  who  may,  but  who  usually  does  not,  have  any 
right  to  relief  either  in  the  event  of  an  improper  performance 
of  such  contract,  its  abandonment  or  a  total  failure  to  comply 
with  its  conditions.891  The  right  of  x>ne  party  executing  the 
contract  to  maintain  an  action  for  a  failure  on  the  part  of 
the  other  to  comply  with  its  conditions  is  not  denied.892 

sao  Maeon  v.  City  of  Des  Moines,  its  contracts  which  contain  no  stipu- 
108  Iowa,  658,  following  Carthan  v.  lation  pour  autrui."  Handy  v.  City 
Lang,  69  Iowa,  384.  In  the  former  of  New  Orleans,  39  La.  Ann.  10 /; 
case  the  court  held  that  irrespective  Barber  Asphalt  Pav.  Co.  v.  Gogreve, 
of  any  intention  to  commit  fraud,  41  La.  Ann.  251;  Basselin  v.  Pate, 
the  mere  fact  that  the  contractor  30  Misc.  368,  63  N.  Y.  Supp.  653. 
did  not  furnish  enough  cement  to  **2  Prowers  County  Com'rs  v.  Be- 
do  the  paving  as  it  should  be  done  dell,  13  Colo.  App.  261,  57  Pac.  187; 
would  afford  grounds  for  a  cancella-  State  v.  New  Orleans  &  C.  R.  Co., 
tion  of  the  contract.  Thilemann  52  La.  Ann.  1570;  Hayden  v.  In- 
v.  City  of  New  York,  66  App.  Div.  habitants  of  Madison,  7  Me. 
455,  73  N.  Y.  Supp.  352;  City  of  (7  Greenl.)  76.  A  contract  for  the 
Tacoma  v.  Tacoma  Light  &  Water  construction  of  a  road  may  be  re- 
Co.,  16  Wash.  288.  scinded  by  mutual  agreement  ac- 

s»i  Loeber  v.  New  Orleans  &  C.  R.  tual  or  implied,  and  in  such  case, 
Co.,  41  La.  Ann.  1151,  5  So.  60.  "In  for  the  work  done  under  such  con- 
proper  cases  and  proper  averments  tract  before  its  rescission,  recovery 
the  citizen  or  taxpayer  may  sue  to  can  be  had  on  a  quantum  meruit. 
enforce  or  restrain  municipal  action,  Wentink  v.  Chosen  Freeholders  of 
but  he  cannot  sue  in  affirmance  of  ,Passaic  County,  66  N.  J.  Law,  65,  48 


§  291 


POWER    TO    CONTRACT. 


649 


§  291.    Delay  in  the  performance  of  a  contract. 

The  contract  may  require  within  a  certain  time  after  its  formal 
execution  the  commencement  of  the  work  or  there  may  be  a  time 
limit  set  for  its  completion.893  In  such  a  case  the  right  'of  the 
parties  may  be  affected  by  a  delay  either  in  the  time  fixed  by 
the  contract  or  by  law  for  the  commencement  of  the  work  or  in 
its  completion.  An  unexcused  delay,  or  one  n'ot  waived,  may 
be  considered  a  breach  of  the  contract  that  entitles  the  party 
suffering  injury  to  its  forfeiture  or  to  damages.894  The  prospec- 
tive injury  may  be  determined  in  advance  and  compensation 
agreed  upon  in  the  form  of  liquidated  damages.895  Such  a  pro- 


Atl.  609.  Where  a  contract  has  been 
set  aside  because  of  irregularity, 
the  contractors  may  recover  for 
work  and  materials  furnished  under 
the  contract  on  a  quantum  meruit 
and  proportional  to  the  total  con- 
tract price.  People  v.  Denison,  19 
Hun  (N.  Y.)  137;  Reilly  v.  City  of 
Albany,  40  Hun  (N.  Y.)  405;  Jones 
v.  City  of  New  York,  60  App.  Div. 
622,  70  N.  Y.  Supp.  296;  Thilemann 
v.  City  of  New  York,  66  App.  Div. 
455,  73  N.  Y.  Supp.  352. 

sssRauer  v.  Lowe,  107  Cal.  229; 
Williams  v.  Bergin,  127  Cal.  578, 
reversing  57  Pac.  1072. 

as*  McQuiddy  v.  Brannock,  70  Mo. 
App.  535.  The  provision  fixing  the 
time  within  which  the  work  shall 
be  performed  is  equivalent  to  an 
agreement  that  if  not  completed 
within  that  time,  there  is  no  per- 
formance and  the  contractor  cannot 
recover  on  a  quantum  meruit. 

Bietry  v.  City  of  New  Orleans,  22 
La.  Ann.  149;  People  v.  Brennan,  18 
Abb.  Pr.  (N.  Y.)  100.  A  forfeiture 
incurred  by  delay  may  be  waived 
by  the  municipality.  Jones  v.  City 
of  New  York,  171  N.  Y.  628,  63  N. 
E.  1118,  affirming  60  App.  Div.  622, 
70  N.  Y.  Supp.  296;  Chandley  v. 
Borough  of  Cambridge  Springs,  203 


Pa.  139,  52  Atl.  87.  "At  the  time 
fixed  for  the  commencement  of  the 
work,  the  borough  had  not  succeed- 
ed in  selling  the  bonds  it  had  issued 
to  provide  the  means  of  payment. 
The  plaintiff  began  at  once  the  build- 
ing of  an  impounding  well  but  de- 
layed ordering  the  pipe  and  pumps 
because  the  bonds  had  not  been  sold. 
If  this  delay  were  the  sole  cause  of 
the  noncompletion  in  time,  the  re- 
sponsibility would  rest  with  him. 
He  took  the  chance  of  prompt  pay- 
ment when  he  entered  into  the  con- 
tract, and  was  not  justified  in  de- 
laying the  work  because  the  borough 
did  not  have  the  money  in  its  treas- 
ury in  advance  of  the  time  it  was 
due  him." 

895  Boyce  v.  United  States  Fidelity 
&  Guaranty  Co.  (C.  C.  A.)  Ill  Fed. 
138;  City  of  Terre  Haute  v.  Lake, 
43  Ind.  480;  Jones  v.  City  of  New 
York,  60  App.  Div.  622,  70  N.  Y. 
Supp.  296,  affirmed  170  N.  Y.  580, 
63  N.  E.  1118;  Gearty  v.  City  of 
New  York,  62  App.  Div.  72,  70  N. 
Y.  Supp.  942;  Cody  v.  City  of  New 
York,  71  App.  Div.  54,  75  N.  Y. 
Supp.  648.  The  failure  to  perform 
a  prescribed  portion  of  the  contract 
within  the  required  time  does  not 
warrant  a  forfeiture  of  the  entire 


650 


POWERS. 


§  291 


vision,  it  has  been  held,  is  not  inconsistent  with  others  giving 
the  corporation  the  power  to  declare  the  contract  terminated 
because  of  delay,  either  in  the  progress  of  work,  or  the  time 
of  completion.898  If,  however,  the  delay  has  been  waived  or 
excused  by  authority  equal  in  extent  and  power  to  that  original- 
ly the  source  of  authority  for  the  execution  of  a  contract  al- 
though there  may  be  resulting  injury,  yet  such  injury  cannot 
be  made  the  basis  of  an  action  for  damages.897  An  extension 
of  time  should  ordinarily  be  made  in  the  same  manner  and  un- 
der the  same  conditions  as  the  original  execution  of  the  con- 
tract.898 A  parql  agreement  to  extend  the  time  for  the  perform- 


contract  Nichols  v.  City  of  Su- 
perior, 109  Wis.  643,  85  N.  W.  428. 
896  Boyce  v.  United  States  Fidelity 
&  Guaranty  Co.  (C.  C.  A.)  Ill  Fed. 
138.  In  this  case  there  was  the 
stipulation  that  if  the  contractor 
"shall  fail  to  commence  or  proceed 
with  the  work  to  the  satisfaction  of 
the  said  trustees,  it  is  agreed  that 
said  trustees  may  give  or  cause  to 
be  given  notice  or  notices  in  writ- 
ing to  said  contractor.  *  *  * 
And  in  case  said  contractor  shall, 
for  ten  (10)  days  after  such  no- 
tice, fail  to  commence  or  regularly 
proceed  with  the  work  to  the  satis- 
faction of  said  trustees,  all  rights 
of  the  said  contractor  under  this 
contract  shall  therefrom  terminate 
and  it  is  agreed  that  said  trustees 
may  declare  this  contract,  as  to  any 
and  all  rights  of  said  contractor 
thereunder,  forfeited,  annulled  and 
wholly  cancelled,  and  take  away, 
hold  and  complete  said  work  by 
re-letting  the  unfinished  part  there- 
of or  completing  the  same  by  day 
work,  or  otherwise  as  may  be  for 
the  best  interest  of  the  said  first 
party  in  the  judgment  of  said  trus- 
tees." The  court  said:  "The  par- 
ties expressly  made  the  completion 
of  the  contract  by  the  day  named  aa 


integral  part  of  the  contract  and  it 
was  clearly  the  purpose  of  the  above 
stipulation  to  secure  its  full  and 
complete  performance  in  this  respect 
as  well  as  in  others.  It  would  have 
defeated  this  purpose  if  the  city 
was  required  to  lie  by,  wliile  the 
other  party  was  neglecting  the  work, 
until  the  day  for  completion  had 
been  reached.  The  public  interests 
and  convenience  might"  be  seriously 
delayed  by  tying  up  the  hands  of 
the  city  after  it  was  demonstrated 
that  the  contractor  either,  would 
not,  or  could  not,  with  his  facilities 
finish  his  undertaking  within  the 
appointed  time;  and  we  are  con- 
vinced that  such  considerations 
were  the  reason  on  which  it  was 
stipulated  that  the  board  of  trustees 
should  have  power  to  determine 
whether  the  progress  of  the  work 
gave  reasonable  ground  for  expect- 
ing the  due  fulfillment  of  the  work." 

8»7  City  of  Philadelphia  v.  Hays,  93 
Pa.  72;  McKnight  v.  City  of  Pitts- 
burgh, 91  Pa.  273. 

898  Buckman  v.  Landers,  111  Cal. 
347,  43  Pac.  1125.  The  extension 
necessarily  need  not  be  endorsed  on 
the  contract  before  the  expiration  of 
the  time  originally  fixed  for  the  con- 
templation of  the  work.  "The  rec- 


§  291 


POWER    TO    CONTRACT. 


651 


ance  of  work  cannot  affect  a  written  contract.  A  failure  to 
comply  with  contract  requirements  for  the  construction  of  public 
improvements,  or  fixing  the  time  for  the  completion  of  the  work, 
may  invalidate  the  contract,  when  all  proceedings  pending  for 
the  levy  and  collection  of  taxes  upon  abutting  property  for  the 
payment  of  such  improvement  become  invalid.899  If  a  contractor 
fail  to  finish  work  within  the  required  time,  the  city,  however, 
may  go  on  and  complete  it.900  When  this  is  done  the  assessments 
are  not  rendered  invalid  by  such  failure.  If  the  delay  in  the 
work  has  been  occasioned  through  acts  of  the  corporation,  not 


ord  shows  that  the  work  was  com- 
pleted within  the  time  fixed  for  its 
completion  by  the  superintendent  of 
streets  and  the  subsequent  exten- 
sions thereof  authorized  by  the  board 
of  supervisors.  It  does  not  appear 
at  what  time  the  superintendent  in- 
dorsed these  extensions  upon  the 
contract  and  the  prima  facie  charac- 
ter of  the  documentary  evidence  in- 
troduced includes  the  'regularity  and 
correctness'  of  his  acts.  It  was  not 
requisite  that  he  should  indorse  an 
extension  upon  the  contract  before 
the  expiration  of  the  time  originally 
fixed  therein."  McVerry  v.  Boyd, 
89  Cal.  304;  Ede  v.  Knight,  93  Cal. 
159. 

899  Murdock  v.  District  of  Colum- 
bia, 22  Ct.  Cl.  464;  Mappa  v.  City 
of  Los  Angeles,  61  Cal.  309;  Village 
of  Morgan  Park  v.  Gahan,  136  111. 
515,  26  N.  E.  1085.  An  invalid  as- 
sessment, however,  affords  no  ex- 
cuse to  a  contractor  to  abandon  his 
contract  where  the  improvement  is 
to  be  paid  with  the  proceeds  of  such 
assessment.  In  this  case  an  appeal 
from  a  judgment  of  the  lower  court 
in  favor  of  contractors  whose  bid 
had  been  accepted  on  a  local  im- 
provement for  a  deposit  they  had 
made  as  required  by  the  terms  of  the 
ordinance  was  affirmed,  the  court 
holding  "that  an  advertisement  by 


a  village  for  bids  for  work  on  a  local 
improvement  to  be  paid  for  by  spe- 
cial assessment,  while  it  charges  the 
biduer  with  notice  of  the  ordinance 
providing  for  the  improvement  in 
question,  does  not  affect  them  with 
notice  of  a  subsequent  ordinance 
providing  the  method  in  which  the 
special  assessment  may  be  levied; 
and  where  an  ordinance  providing 
for  a  local  improvement  declares 
that  it  shall  be  paid  for  by  special 
assessment  the  passage  of  a  subse- 
quent invalid  ordinance  providing 
that  the  assessment  shall  be  paid  in 
ten  annual  instalments  is  such  an 
attempt  to  change  the  proposed  con- 
tract as  will  justify  the  bidder  in 
refusing  to  execute  it." 

Trustees  of  United  Brethren  in 
Christ  Church  v.Rausch,122Ind.!67; 
Lake  Erie  &  W.  R.  R.  Co.  v.  Walters, 
13  Ind.  App.  275,  41  N.  E.  465.  The 
rule  will  not  apply,  however,  where 
the  delay  has  been  occasioned  by 
causes  entirely  beyond  the  control 
of  the  contractor.  Rose  v.  Trestrail, 
62  Mo.  App.  352;  In  re  Anderson,  47 
Hun  (N.  Y.)  203. 

»oo  School  Town  of  Winamac  v. 
Hess,  151  Ind.  229,  50  N.  E.  81,  and 
cases  cited;  Newton  v.  Devlin,  134 
Mass.  490;  Simermeyer  v.  City  of 
New  York,  16  App.  Div.  445,  45  N. 
Y.  Supp.  40. 


652 


POWERS. 


292 


only  will  it  be  liable  for  the  work  constructed  although  completed 
after  the  contract  time,901  but  it  will  be  liable  to  the  contractor 
for  any  special  damages  which  he  may  have  suffered  by  reason 
of  such  delay.902 

§  292.    The  assignment  of  a  contract. 

As  suggested  in  a  preceding  section,  in  all  municipal  contracts 
for  the  construction  of  public  improvements,  there  are  three  par- 
ties interested,  those  .executing  the  contract  and  abutting  prop- 


9oi  Hellman  v.  Shoulters,  114  Cal. 
136;  City  of  Dunkirk  v.  Wallace,  19 
Ind.  App.  298,  45  N.  E.  614;  49  N. 
E.  463;  George  G.  Fetter  Co.  v. 
Courier- Journal  Job  Printing  Co., 
20  Ky.  L.  H.  614,  47  S.  W.  241; 
State  v.  McCardy,  87  Minn.  88,  91 
N.  W.  263;  Guilders  v.  Holmes,  95 
Mo.  App.  154,  68  S.  W.  1046;  Hardi- 
man  v.  City  of  New  York,  21  App. 
Div.  614,  47  N.  Y.  Supp.  786;  John- 
son v.  City  of  Mt.  Vernon,  34  App. 
Div.  37,  53  N.  Y.  Supp.  1063;  Dady 
v.  City  of  New  York,  57  Hun  (N.  Y.) 
456;  Jones  v.  City  of  New  York, 
170  N.  Y.  580,  63  N.  E.  1118,  affirm- 
ing 60  App.  Div.  622,  70  N.  Y.  Supp. 
296;  Mairs  v.  City  of  New  York, 
52  App.  Div.  343,  65  N.  Y.  Supp. 
160;  Jones  v.  City  of  New  York,  60 
App.  Div.  622,  70  N.  Y.  Supp.  296 
(A  disputed  cause  of  delay  is  a 
question  of  fact  for  a  jury  to  deter- 
mine) ;  Episcopo  v.  City  of  New 
York,  35  Misc.  623,  72  N.  Y.  Supp. 
140;  Leeson  v.  City  of  New  York, 
65  App.  Div.  105,  72  N.  Y.  Supp.  538; 
Thilemann  v.  City  of  New  York,  66 
App.  Div.  455,  73  N.  Y.  Supp.  352; 
Cody  v.  City  of  New  York,  71  App. 
Div.  54,  75  N.  Y.  Supp.  648;  Mont- 
gomery v.  City  of  New  York,  151 
N.  Y.  249.  The  rejection  of  ma- 
terials causing  delay  is  no  excuse 


for  the  non-completion  of  the  work 
within  the  time  fixed. 

902  Brady  v.  City  of  St.  Joseph,  84 
Mo.  App.  399;  Markey  v.  City  of 
Milwaukee,  76  Wis.  349,  45  N.  W. 
28.  "If  the  board  refused  to  permit 
the  plaintiff  to  perform  that  part  of 
his  work  which  is  set  up  in  the  com- 
plaint as  the  basis  of  his  action  tin- 
der this  provision  in  the  contract, 
that  fact  might  be  a  defense  to  the 
action;  but  such  defense  must  be 
raised  by  an  answer  and  is  not 
raised  by  a  demurrer  to  the  com- 
plaint. The  allegation  of  the  com- 
plaint is  'that  the  city  by  its  duly- 
constituted  officers,  caused  the  plans 
and  specifications  for  doing  said 
work  to  be  modified  and  changec, 
whereby  the  lateral  sewers  con- 
tracted to  be  constructed  by  the 
plaintiff  were  shortened  to  the  ex- 
tent of  176  feet,  against  the  will 
and  protest  of  the  plaintiff.  We  find 
no  provision  in  the  contract  which 
authorizes  the  city  arbitrarily  to 
modify  or  change  the  contract  made 
with  the  plaintiff  and  if  the  ci';v  has 
modified  or  changed  the  contract  for 
any  cause  which  authorized  it  to  do 
so,  such  fact  must  be  set  up  as  a 
defense  to  the  action;  but  under  the 
allegations  of  the  complaint,  it  can- 
not be  presumed  that  such  alteration 
was  authorized." 


§   292  POWER    TO    CONTRACT.  653 

erty  owners.  Ordinarily,  the  public  corporation  is  interested  only 
in  the  performance  of  the  work  according  to  the  terms  and  con- 
ditions of  the  contract ;  the  individuality  of  the  contractor  is  not 
considered,  and,  therefore,  unless  prohibited  by  law,  the  original 
party  to  the  contract  may  with  the  consent  of  the  authorities, 
assign  all  his  rights  in  and  to  such  contract.  The  assignee  then 
stands  in  the  place  of  and  succeeds  to  all  the  rights  of  his  as- 
signor and  assumes  all  his  obligations  whether  arising  under  the 
provisions  of  the  contract,903  or  depending  upon  the  levy  and 
collection  of  special  assessments.004 

The  abutting  property  owner  is  but  indirectly  interested,  and, 
therefore,  has  no  right  to  prevent,  if  otherwise  it  can  be  legally 
done,  the  assignment  of  such  a  contract,  and  the  mere  fact  that 
there  has  been  a  substitution  of  legal  parties  does  not  give  him 
a  right  to  resist  the  collection  of  special  assessments  levied  for 

903  French  v.  Powell,  135  Cal.  636,  ing  it  complies  with  all  the  condi- 

68  Pac.  92;  Suburban  Elec.  Light  Co.  tions. 

v.  Town  of  Hempstead,  38  App.  Div.        »o*  Bernstein    v.    Downs,    112    Cal. 

355,   56   N.   Y.   Supp.  443;    Episcopo  197,  44  Pac.  557;   Foley  v.  Bullard, 

v.  City  of  New  York,  35  Misc.  623,  99  Cal.  516;  Diggins  v.  Hartshorne, 

72  N.  Y.  Supp.  140;  Ernst  v.  Kunkle,  108  Cal.  154;  Taber  v.  Ferguson,  109 

5  Ohio  St.  523;  City  of  Philadelphia  Ind.  227,  9  N.  E.  723;    Deffenbaugh 

v.  'Lockhardt,  73  Pa.  211;   Southern  v.   Foster,  40   Ind.  382.    Where  the 

Pav.    Co.    v.    City    of    Chattanooga  contract  provides  that  the  consent  of 

(Tenn.  Ch.  App.)  48  S.  W.  92;  Mar-  the    common    council    is    necessary, 

shall  v.  City  of  San  Antonio   (Tex.  such  consent  must  be  shown  before 

Civ.  App.)  63  S.  W.  138;   Robertson  the  assignee  can  recover  on  the  con- 

v.   King  County,   20   Wash.   259,   55  tract.     City  of  Dunkirk  v.  Wallace, 

Pac.  52.     An  assignment  of  a  claim  19  Ind.  App.  298,  49  N.  E.  463;  Sims 

or  contract  to  one  prohibited  by  law  v.  Hines,  121  Ind.  534;  McCubbin  v. 

from    being    interested    in    contract  City  of  Atchison,  12  Kan.  166;  City 

work  to  be  done  within  the  limits  of  St.  Louis  v.  Clemens,  42  Mo.  70; 

of  a   designated   public   corporation  Jones  v.  Savage,  24  Misc.  158,  53  N. 

held  void.     Cook  v.  City  of  Menasha,  Y.  Supp.  308;  Suburban  Elec.  Light 

103  Wis.  6,  79  N.  W.  26.     The  con-  Co.  v.  Town  of  Hempstead,  38  App. 

sent   of   the   municipality   is   neces-  Div.  355,  56  N.  Y.  Supp.  443.     The 

sary    to   the    legal    assignment,   fol-  consent    of    the    public    corporation 

lowing  and  quoting  from   Skobis  v.  will  be  necessary  to  a  legal  assign- 

Ferge,  102  Wis.  122,  78  N.  W.  426.  ment  under  Laws  1897,  c.  444.     Dev- 

Herman    v.    City    of   Odfcnto,    100  lin  v.  City  of  New  York,  63  N.  Y.  8; 
Wis.   391.     The   execution  of  a  con-  City   of  Philadelphia   v.   Lockhardt, 
tract   for  the  benefit   of   an    undis-  73  Pa.  211 ;  Brace  v.  City  of  Glovers- 
closed  principal  does  not  render  it  ville,  167  N.  Y.  452. 
invalid  if  the  party  actually  execut- 


654 


POWERS. 


§  293 


the  express  purpose  of  paying  the  obligation  of  the  contract, 
namely,  the  cost  of  the  improvement. 

§  293.    Rights  of  parties. 

The  public  corporation  as  a  party  to  a  contract  is  interested 
in  and  has  the  right  to  enforce  its  performance  in  accordance 
with  its  terms  and  conditions.906  A  failure  to  carry  out  the 
contract  or  its  imperfect  performance  by  the  contractor  confers 
no  rights  ordinarily  upon  an  abutting  property  owner,  the  taxes 
upon  whose  property  provide  for  the  cost  of  the  improvement.908 


BOS  City  of  Milwaukee  v.  Shailer 
(C.  C.  A.)  84  Fed.  106.  A  city,  how- 
ever, cannot  recover  damages  for  a 
failure,  to  execute  a  contract  in  ac- 
cordance with  its  conditions  when 
the  uncompleted  work  as  construct- 
ed by  the  city  is  essentially  different 
from  that  provided  by  the  contract. 
In  this  case  the  board  of  public 
works  undertook  to  change  the 
route  as  contracted  for  and  finish 
it  at  the  expense  of  the  contractors. 
7he  court  said:  "The  engineer  of 
the  city  had  reported  the  prescribed 
line  to  be  impracticable  but  the  reso- 
lution of  the  board  was  silent  on 
that  point  and  was  too  indefinite  in 
respect  to  the  course  and  ending  of 
the  detour  ordered  to  be  regarded 
as  establishing  a  new  line  or  as 
amounting  to  an  irrevocable  aban- 
donment of  the  old  line;  but  it 
necessarily  resulted  that,  when  the 
work  was  taken  out  of  the  hands  of 
the  contractors,  and  the  board  of 
public  works  undertook  to  complete 
the  tunnel,  it  was  bound  to  proceed 
on  the  line  of  the  agreement  and 
could  not  then  change  the  line  and 
have  the  right  to  charge  the  contract- 
ors with  the  extra  expense  of  con- 
struction. By  the  contract,  power 
was  reserved  to  the  board  to  change 
the  plans  and  specifications,  but 


with  equal  explicitness  it  was  pro- 
vided that  the  price  of  extra  work 
caused  by  a  change  should  be  agreed 
upon  by  the  board  and  by  the  con- 
tractors before  the  work  should  be 
commenced.  Practically,  therefore,  no 
ciiange  involving  extra  work  could 
be  made  except  by  mutual  agree- 
ment, and  it  certainly  was  not  in 
the  power  of  the  board  to  suspend 
work  by  the  contractors,  and  then 
adopt  new  plans  to  be  worked  out 
at  their  expense.  If  the  original 
line  was  practicable,  the  board  had 
its  choice  to  finish  the  tunnel  on 
that  line  and  to  look  to  the  con- 
tractors for  the  expense  in  excess  cf 
the  contract  price  or  to  treat  the 
contract  as  at  an  end  and  do  with 
the  work  as  it  saw  fit.  If  the  line 
was  impracticable,  the  contractors, 
on  the  discovery  of  the  fact,  were 
entitled  to  abandon  the  work  and 
it  was  not  in  the  power  of  the  board 
to  require  of  them,  against  their 
consent  to  construct  a  tunnel  on  dif- 
ferent plans  and  specifications." 
Town  of  Grand  Isle  v.  Kinney,  70 
Vt  381,  41  Atl.  130. 

906  Allen  v.  City  of  Davenport,  107 
Iowa,  90,  77  N.  W.  532;  Seaboard 
Nat.  Bank  v.  Woesten,  147  Mo.  467, 
48  S.  W.  939,  48  L.  R.  A.  279;  City 
of  Philadelphia  v.  Jewell,  135  Pa. 


§   :< 


POWER    TO    CONTRACT. 


655 


A  failure  of  public  officials  to  properly  perform  some  of  their 
duties  in  connection  with  the  execution  or  carrying  out  of  the 
contract  cannot  affect  the  right  of  the  contractor  or  his  assignee 
to  enforce  its  obligations.907 

§  294.    Payment  of  contract  obligations. 

The  obligation  assumed  by  a  public  corporation  under  a  con- 
tract may  be  general  and  payable  from  funds  raised  by  general 
taxation  or  special  and  payable  only  from  moneys  raised  by 
special  assessments  upon  designated  property.  In  the  former  case 
the  contractor  or  his  assignee  can  compel  payment  from  the  gen- 
eral funds  at  the  disposal  of  the  corporation  ;90S  if  the  obligation 
for  the  payment  is  based  upon  a  special  fund  he  is  limited  in  his 
recovery  to  such  fund.009 


329,  19  Atl.  947.  A  property  owner 
may,  however,  avail  himself  of  statu- 
tory rights;  in  this  case  Act  Pa. 
April  19,  1843  (P.  L.  342).  To  the 
contrary  see  Lodor  v.  McGovern,  48 
N.  J.  Eq.  275. 

907  McVerry  v.  Boyd,  89  Cal.  304; 
Diggins  v.  Hartshorne,  108  Cal.  154; 
\Vells  v.  Wood,  114  Cal.  255.     "The 
point    that    the    superintendent    of 
streets   failed   to   record   the    entire 
contract   at   the    proper   time,   even 
if   conceded,    is    of   no    consequence 
affecting  any  right  of  the  contrac- 
tor."    Bigelow     v.     Inhabitants     of 
Perth    Amboy,    25    N.    J.    Law    (1 
Dutch.)    297. 

908  First  Nat.  Bank  of  Du  Quoin  v. 
Keith,  183  111.  475;  City  of  New  Al- 
bany v.  Sweeney,  13  Ind.  245;    Mc- 
Cubbin  v.  City  of  Atchison,  12  Kan. 
166;    Tournier   v.   Municipality   No. 
1,  5  La.  Ann.  298.     A  city  is  liable 
where  it  guarantees  the  payment  of 
the  contract  price  upon  a  failure  of 
the   abutting   owners    to    pay    their 
proportion    of    same,    also    held    in 
Cronan  v.  Municipality  No.  1,  5  La. 
Ann.   537;    City  of   New  Orleans  v. 
Elliott,   10   La.   Ann.   59;    Patterson 


v.  City  of  New  Orleans,  20  La.  Ann. 
103;  Warren-Scharf  Asphalt  Pav. 
Co.  v.  City  of  St.  Paul,  69  Minn.  453; 
Woolsey  v.  Village  of  Rondout,  4 
Abb.  Dec.  (N.  Y.)  639;  City  of  Bel- 
ton  v.  Sterling  (Tex.  Civ.  App.)  50 
S.  W.  1027. 

BOS  City  of  Pontiac  v.  Talbot  Pav. 
Co.  (C.  C.  A.)  96  Fed.  679,  denying 
a  rehearing  in  94  Fed.  65,  48  L.  R. 
A.  326;  City  of  Alton  v.  Foster,  74 
111.  App.  511;  Hoblit  v.  City  of 
Bloomington,  87  111.  App.  479.  A 
contractor  is  not  entitled  to  interest 
upon  a  fund  collected  from  special 
assessments  eventually  to  be  paid 
him  but  temporarily  withheld. 

City  of  Huntington  v.  Force,  15fi 
Ind.  368;  Succession  of  Erwin,  16 
La.  Ann.  132.  A  contractor  may 
proceed  against  the  abutting  prop- 
erty owner. 

Moylan  v.  City  of  New  Orleans,  32 
La.  Ann.  673;  Wheeler  v.  City  of 
Poplar  Bluff,  149  Mo.  36;  City  of  Cin- 
cinnati v.  Cameron,  33  Ohio  St.  336; 
Comstock  v.  Incorporated  Village  of 
Nelsonville,  61  Ohio  St.  288,  56  N. 
E.  15;  German-American  Sav.  Bank 
v.  City  of  Spokane,  17  Wash.  315, 


656 


POWERS. 


294 


The  payment  of  compensation  depends  first,  upon  the  validity 
of  the  contract;  if  executed  without  proper  authority  or  not  in 
the  manner  required  by  law,  and  therefore  invalid,  the  contractor 
in  case  of  nonpayment  cannot  recover  in  an  action  based  upon 
it.910  In  these  instances  to  effect  a  substantial  equity  between 


47  Pac.  1103,  49  Pac.  542,  38  L.  R. 
A.  259.  Mandamus  will  lie  to  en- 
force an  assessment  for  the  pur- 
pose of  creating  a  fund  for  the  pay- 
ment of  certain  obligations.  Hohl 
v.  Town  of  Westford,  33  Wis.  324. 
Where  funds  accumulated  for  the 
purpose  of  paying  for  local  im- 
provements are  improperly  used  for 
other  purposes,  the  town  will  not  be 
relieved  from  the  liability  on  a  con- 
tract for  their  construction.  The 
court  say:  "The  town  drainage  fund 
was  created  by  c.  151,  Laws  of  1869. 
That  act  provides  that  certain  drain- 
age moneys  shall  be  apportioned  to 
the  several  towns  and  refers  to  the 
moneys  so  apportioned  to  any  town 
as  belonging  to  the  town;  it  pro- 
vides that  the  money  shall  go  into 
the  hands  of  the  town  treasurer  and 
when  paid  into  the  town  treasury, 
it  shall  be  denominated  the  drain- 
age fund  of  the  town  and  if  not 
needed  for  drainage  purposes  it  may 
be  applied  to  the  support  of  schools. 
True  the  law  places  the  fund  under 
the  control  of  the  town  board  of 
supervisors  and  provides  that  the 
same  shall  be  expended  under  their 
direction  for  the  purposes  specified 
in  the  act;  but  these  provisions 
merely  /designate  the  agencies 
through  which  the  town  shall  act  in 
disposing  of  the  fund  and  do  not 
relieve  it  from  its  obligations  as  cus- 
todian and  trustee  thereof.  *  *  * 
In  contemplation  of  law  there  was 
at  the  time  mentioned,  more  than 
sixty  dollars  of  the  drainage  fund 
in  the  town  treasury.  The  fact  that 


the  supervisors  had  used  it,  without 
legal  authority  for  another  purpose 
cannot  relieve  the  town  from  lia- 
bility. The  plaintiff  had  the  right 
to  assume  that  there  was  money 
belonging  to  that  fund  in  the  treas- 
ury and  to  contract  on  the  faith  of 
it  and  if  he  did  so,  and  has  per- 
formed his  contract,  the  wrongful 
act  of  the  agents  of  the  town  in 
using  the  fund  for  an  unauthorized 
purpose  cannot  destroy  his  contract 
and  exonerate  the  town  from  liabil- 
ity on  account  thereof.  So  far  as 
he  is  concerned,  there  was  a  suffi- 
cient drainage  fund  belonging  to  the 
town  to  pay  him  for  his  work  and 
the  town,  as  the  trustee  of  that 
fund,  is  bound  to  apply  the  same  to 
tnat  purpose." 

910  Richardson  v.  Grant  County, 
27  Fed.  495.  No  recovery  can  be 
had  on  a  quantum  meruit.  Game- 
well  Fire-Alarm  Tel.  Co.  v.  City  of 
•Laporte  (C.  C.  A.)  102  Fed.  417,  af- 
firming 96  Fed.  664.  Newman  v. 
Sylvester,  42  Ind.  106.  The  rule  ap- 
plied where  the  improvement  was 
made  under  a  misapprehension  of 
the  facts,  outside  the  city  limits, 
both  parties  as  to  the  facts  having 
equal  knowledge. 

Fox  v.  City  of  New  Orleans,  12 
La.  Ann.  154;  Seibrecht  v.  City  of 
New  Orleans,  12  La.  Ann.  496;  War- 
ren v.  Inhabitants  of  Durham,  61 
Me.  19;  Newbery  v.  Fox,  37  Minn. 
141.  "The  doctrine  of  ultra  vires 
has.  with  good  reason,  been  applied 
with  greater  strictness  to  municipal 
bodies  than  to  private  corporations. 


§  294 


POWER    TO    CONTRACT. 


657 


parties,  he  is  usually  permitted  to  recover  for  the  work  done, 
materials  furnished  or  services  rendered  upon  a  quantum  meruit 
or  valebant.911  The  payment  of  compensation  again  may  depend 


and,  in  general,  a  municipality  is 
not  estopped  from  denying  the 
validity  of  a  contract  made  by  its 
officers  when  there  'has  been  no 
authority  for  making  such  a  con- 
tract. A  different  rule  of  law  would 
in  effect  vastly  enlarge  the  power  oi 
public  agents  to  bind  a  municipality 
by  contracts,  not  only  unauthorized, 
but  prohibited  by  the  law.  It  would 
tend  to  nullify  the  limitations  and 
restrictions  imposed  with  respect  to 
the  powers  of  such  agents  and  to  a 
dangerous  extent  expose  the  public 
to  the  very  evils  and  abuses  which 
such  limitations  are  designed  to  pre- 
vent. In  the  case  here  presented  it 
.s  not  to  be  denied  that  the  town 
council  had  no  authority  to  make 
this  contract;  that  the  charter  set 
forth  the  conditions  which  would  au- 
thorize such  a  contract  to  be  made; 
that  those  prescribed  conditions  had 
not  been  fulfilled,  nor  did  the  defend- 
ant believe  that  they  had  been.  The 
most  that  appears  in  his  favor  is  that 
without  being  misled  or  mistaken  as 
to  the  fact,  but  being  warned  that 
the  contract  was  void,  he  neverthe- 
less judged  that  it  was  legally  valid ; 
and  being  also  so  advised  by  the 
members  of  the  council,  he  took  the 
risk  of  performing  it.  The  contra  ~c, 
being  thus  unauthorized,  was  not 
effectual  as  a  contract,  and  the  de- 
fendant does  not  Appear  in  a  posi- 
tion entitling  him  to  invoke  the  doc- 
trine of  estoppel  to  aid  him  in  en- 
forcing his  claim  as  though  the  con- 
tract were  obligatory  upon  the 
town." 

State  v.   Rickards,  16   Mont.  145, 
2»  L.  R.  A.  298;  State  v.  City  of  Hel- 
Abb.  Corp. — 42. 


ena,  24  Mont.  521,  63  Pac.  99,  55  L- 
R.  A.  336;  Tappan  v.  Long  Branch 
Police  S.  ft  I.  Commission,  59  N.  J. 
Law,  371,  35  All.  1070.  But  a  mere 
irregularity  constitutes  no  defense 
in  an  action  on  a  contract.  Brady 
v.  City  of  New  York,  7  Abb.  Pr.  (N. 
Y.)  234;  Nichols  v.  State,  11  Tex. 
Civ.  App.  327,  32  S.  W.  452;  Berlin 
Iron  Bridge  Co.  v.  City  of  San  An- 
tonio (Tex.  Civ.  App.)  50  S.  W. 
408;  Berwind  "  Galveston  &  H. 
Inv.  Co.,  20  Tex.  Civ.  App.  426.  50  S. 
W.  413;  Silliman  v.  Fredericksburg. 
O.  &  C.  R.  Co.,  27  Grat.  (Va.)  119; 
Bill  v.  Town  of  Woodbury,  54  Vt 
251,  87  Am.  Dec.  423. 

»n  Bill  v.  City  of  Denver,  29  Fed. 
344.  The  rule  applied  to  the  pay- 
ment of  services  rendered.  Illinois 
Trust  &  Sav.  Bank  v.  Arkansas  City 
Water  Co.,  67  Fed.  196;  La  Corpor- 
ation de  Notre  Dame  de  Bonsecours 
v.  Bessette,  Rap.  Jud.  Que.  9  B.  R. 
423;  San  Juan  County  Com'rs  v. 
Tulley,  17  Colo.  App.  113,  67  Pac. 
346;  Dawson  Water-Works  Co.  v. 
Carver,  95  Ga.  565.  The  rule  applied 
to  the  payment  by  the  city  for  water 
already  consumed,  without  a  con- 
sideration of  the  validity  of  the  con- 
tract. 

City  of  Chicago  v.  Norton  Mill, 
Co.,  97  111.  App.  651;  Westbrook  r 
Middlecoff,  99  111.  App.  327;  Sani- 
tary Dist.  of  Chicago  v.  George  F. 
rflake  Mfg.  Co.,  179  111.  167;  State 
Board  of  Agriculture  v.  Citizens'  bt. 
R.  oo.,  47  Ind.  407;  Schipper  v.  City 
of  Aurora,  121  Ind.  154,  6  L.  R.  A. 
318;  Reichard  v.  Warren  County,  31 
Iowa,  381.  But  the  acceptance  amd 
occupancy  of  a  public  building  will 


658 


POWERS. 


§  294 


upon  the  performance  of  the  contract  according  to  its  terms  and 
conditions.  If  there  is  a  failure  to  perform  or  an  imperfect  per- 
formance, advantage  can  be  taken  of  these  conditions  by  the  pub- 
lic corporation  and  payment  refused.  It  is  then  questionable  if 
the  contractor  can  recover.912  The  failure,  however,  on  the  part 


not  enable  the  contractor  to  recover 
on  a  quantum  meruit  for  that  por- 
tion of  its  cost  in  excess  of  the 
amount  authorized  by  law. 
•  Sleeper  v.  Bullen,  6  Kan.  300.  The 
acceptance  of  the  work  and  the  levy- 
ing of  a  tax,  it  is  held  here,  estop 
the  city  from  denying  the  validity 
of  a  contract.  City  of  Concordia  v. 
Hagaman,  1  Kan.  App.  35,  41  Pac. 
133;  Nicholasville  Water  Co.  v. 
Councilmen  of  Nicholasville,  18  Ky. 
L.  R.  592,  36  S.  W.  549;  City  of 
Louisville  v.  McNaughten,  19  Ky.  L. 
R.  1695,  44  S.  W.  380;  City  of  Louis- 
ville v.  Gosnell  (Ky.)  61  S.  W.  476; 
Wiley  v.  Inhabitants  of  Athol,  150 
Mass.  426;  City  of  Detroit  v.  Michi- 
gan Pav.  Co.,  36  Mich.  335.  The  rule 
is  different  where  a  valid  contract 
has  been  abandoned  by  a  contractor; 
he  cannot  recover  for  the  labor  and 
materials  furnished  by  him  upon  the 
uncompleted  work. 

Sykes  v.  City  of  St.  Cloud,  60 
Minn.  442;  Lyman  v.  City  of  Lin- 
coln, 38  Neb.  794.  "A  contractor 
who  furnishes  labor  and  material  to 
a  city  under  a  contract  which  re- 
serves to  the  city  the  right  of  can- 
cellation, is  entitled,  after  a  termin- 
ation of  such  contract  by  the  city, 
to  recover  from  it  the  actual  benefits 
the  city  has  received  from  the  con- 
tractor's partial  performance;  and 
this  is  found  by  ascertaining  the 
reasonable  worth  to  the  city  of  such 
partial  performance,  appropriated 
or  received  by  the  city,  at  the  time 
of  such  receipt  or  appropriation  and 
deducting  therefrom  all  payments 


made  to  the  contractor  and  all  ac- 
tual damages  the  city  has  sustained 
by  his  defaults." 

Schier  v.  City  of  Buffalo,  35  Hun 
(N.  Y.)  564.  A  contractor  may  re- 
cover for  services  rendered  where 
both  parties  acted  in  good  faith 
though  through  an  error  one  of  the 
conditions  required  by  law  as  neces- 
sary to  the  making  of  a  legal  con- 
tract did  not  exist. 

North  River  Elec.  Light  &  Power 
Co.  v.  City  of  New  York,  48  App. 
Div.  14,  62  N.  Y.  Supp.  726.  A  con- 
tract for  the  supply  of  a  necessary 
commodity,  i.  e.,  street  lighting,  is 
enforceable  for  a  reasonable  con- 
sideration though  not  executed  in 
the  manner  required  by  charter  pro- 
vision, designed  to  insure  economy 
and  prevent  favoritism  and  corrup- 
tion. 

Sheehan  v.  City  of  New  York,  37 
Misc.  432,  75  N.  Y.  Supp.  802;  City 
of  New  York  v.  Sonneborn,  113  N. 
Y.  423;  Allegheny  City  v.  McClur- 
kan,  14  Pa.  81;  City  of  Sherman  v. 
Connor,  88  Tex.  35,  29  S.  W.  1053; 
Jewell  Nursery  Co.  v.  State,  8  S.  D. 
531,  67  N.  W.  629;  McGillivray  v. 
Joint  School  Dist,  112  Wis.  354,  88 
N.  W.  310,  58  L.  R.  A.  100,  holds 
that  for  obligations  incurred  in  ex- 
cess of  the  constitutional  limit,  al- 
though the  corporation  had  had  the 
benefit  of  the  contract,  it  will  not  be 
liable  even  on  a  quantum  meruit. 
Scott  v.  School  Dist.  No.  9  in  Wil- 
liamstown,  67  Vt.  150,  31  Atl.  146, 
27  L.  R.  A.  588. 

912  Trustees  of  Belleview  v.  Hohn, 


§  295 


POWER    TO    CONTRACT. 


659 


of  public  officials  to  levy  and  collect  special  assessments  or  taxes 
may  give  the  contractor  performing  work  or  supplying  materials, 
the  right  to  a  recovery  from  general  corporate  funds.913  This 
general  liability  may  then  include  not  only  the  original  contract 
price  but  such  damages  as  the  contractor  may  have  suffered  by 
reason  of  the  failure  and  neglect  to  levy  and  collect  the  taxes 
unless  there  is  some  express  provision  in  the  charter  or  the  con- 
tract exempting  the  corporation.91* 

§  295.    Extras. 

The  furnishing  of  extra  supplies  or  materials  or  the  doing  of 
work  in  excess  of  that  called  for  by  the  contract  leads  to  many 
differences.  A  contractor  should  not  perform  extra  work  or  sup- 
ply extra  materials  without  a  clear  understanding  of  his  rights 
for  compensation.  A  public  corporation  is  one  of  restricted  and 
limited  powers,  especially  in  the  expenditure  of  public  moneys; 
the  power  to  contract  is  not  usually  an  implied  one  but  must  ex- 
pressly be  given  and  must  be  exercised  in  the  manner  designated. 


82  Ky.  1;  Spaulding  v.  City  of  Low- 
ell, 40  Mass.  (23  Pick.)  71;  Mathew- 
son  v.  City  of  Grand  Rapids,  88 
Mich.  558.  A  contractor  failing  to 
complete  the  work  within  the  time 
required  by  the  contract  cannot  re- 
cover when  the  delay  was  caused  by 
the  issuance  of  an  injunction  on 
behalf  of  the  adjoining  property 
owners  because  of  an  encroachment 
of  the  public  work  upon  private 
property.  The  court  held  that  the 
duty  to  ascertain  the  right  of  the 
city  to  construct  the  work  in  this 
particular  place  rested  equally  upon 
both  parties  to  the  contract.  Mau- 
pin  v.  Franklin  County,  67  Mo.  327; 
Moore  v.  City  of  New  York,  73  N.  Y. 
238;  Lillard  v.  Freestone  County,  23 
Tex.  Civ.  App.  363. 

»i3  City  of  Leavenworth  v.  Stille, 
13  Kan.  539;  Heller  v.  Garden  City, 
58  Kan.  263,  48  Pac.  841;  Kearney  v. 
City  of  Covington,  58  Ky.  (1  Mete.) 
339;  Cole  v.  City  of  Shreveport,  41 


La.  Ann.  839,  6  So.  688;  City  of 
Lansing  v.  Van  Gorder,  24  Mich. 
456;  Fisher  v.  City  of  St.  Louis,  44 
Mo.  482;  Baldwin  v.  City  of  Oswe- 
go,  I  Abb.  Dec.  (N.  Y.)  62;  Beard  v. 
City  of  Brooklyn,  31  Barb.  (N.  Y.) 
142;  Weston  v.  City  of  Syracuse,  158 
N.  Y.  274,  43  L.  R.  A.  678;  Addyston 
Pipe  &  Steel  Co.  v.  City  of  Corry, 
197  Pa.  41;  McEwan  v.  City  of 
Spokane,  16  Wash.  212;  Stephens  v. 
City  of  Spokane,  14  Wash.  298 ;  Bow- 
man v.  City  of  Colfax,  17  Wash.  344, 
49  Pac.  551;  Allen  v.  City  of  Janes- 
ville,  35  Wis.  403. 

»i*  Denny  v.  City  of  Spokane  (C. 
C.  A.)  79  Fed.  719;  City  of  New 
Orleans  v.  Kerr,  50  La.  Ann.  413. 
The  rule  applied  to  a  pound  master 
working  under  a  contract  with  the 
city.  Ash  v.  City  of  Independence, 
79  Mo.  App.  70;  McCann  v.  City  of 
Albany,  11  App.  Div.  378,  42  N.  Y. 
Supp.  94 ;  Cumming  v.  City  of  Brook- 
lyn, 11  Paige  (N.  Y.)  596. 


660 


POWERS. 


The  law  adopts  this  policy  to  prevent  the  dishonest  or  improp- 
er use  of  public  moneys.  If  a  contractor  were  permitted  upon 
his  own  volition  or  in  an  informal  manner  to  perform  services 
or  furnish  materials  not  called  for  by  the  original  terms  of  his 
contract  thus  creating  an  obligation  on  the  part  of  the  corpora- 
tion the  very  purpose  and  policy  of  the  law  would  be  defeated. 
At  the  same  time  the  courts  recognize  the  principle  that  a  public 
corporation,  equally  with  others,  should  deal  justly  and  fairly. 
No  rule  of  general  application  can  be  laid  down.  Each  case  in- 
volving the  question  of  "extras,"  so  called,  must  depend  largely 
upon  its  own  facts.915  The  extra  work  or  materials  necessary 


»i»  Fitzhugh  r.  Ashworth,  119  Cal. 
393;  West  Chicago  Park  Com'rs  v. 
Kincade,  64  111.  App.  113;  City  of 
Laicago  v.  McKechney,  91  111.  App. 
442.  The  compensation  allowed  for 
extra  work  or  materials  of  a  differ- 
ent character  from  those  provided 
in  the  contract  should  be  based  upon 
their  value. 

Palladino  v.  City  of  New  York,  56 
Hun,  565,  10  N.  Y.  Supp.  66;  Abells 
v.  City  of  Syracuse,  7  App.  Div.  501, 
40  N.  Y.  Supp.  233.  In  holding  that 
the  contractor  could  recover  for  ex- 
tra work  in  this  case  the  court  said: 
"In  the  progress  of  the  work  a  all 
became  necessary  along  the  side  of 
the  street,  varying  from  three  to 
twelve  and  fifteen  feet  in  height  so 
that  in  attempting  to  perform  the 
contract  it  was  discovered  that  if 
the  top  of  the  embankment  was  of 
the  width  of  the  street,  the  toe  of 
the  embankment  must  necessarily 
extend  over  the  premises  of  abut- 
ting owners  sufficiently  to  support 
the  embankment  with  the  earth 
slope  required  by  the  contract.  If 
the  fill  was  fifteen  feet  deep  the  toe 
of  the  bank  would  be  thirty  feet 
upon  the  adjoining  owner's  prop- 
erty. The  adjoining  owners  refused 
to  permit  any  portion  of  the  em- 
bankment upon  their  premises  and 


forbade  it.  An  emergency,  there- 
fore, suddenly  arose  which  neither 
of  the  parties  seemed  to  have  con- 
templated when  the  contract  was 
made  and  to  persist  in  the  perform- 
ance of  the  contract  would  render 
all  concerned  liable  as  trespassers 
and  the  work  would  probably  be 
stopped.  The  only  way  out  of  the 
difficulty  was,  therefore,  to  construct 
a  vertical  wall  commencing  at  the 
line  of  the  street  instead  of  the 
sloping  embankment  which  would 
involve  an  expenditure  not  contem- 
plated by  the  parties  when  the  con- 
tract was  executed.  The  city  en- 
gineer with  the  knowledge  and  con- 
sent of  the  commissioner  of  public 
works  verbally  directed  the  contrac- 
tors to  construct  this  wall  which 
was  done  at  an  expense  of  $913. 
*  *  *  Monthly  estimates  were 
made  on  this  contract  and  the  com- 
missioner of  public  works  certified 
in  writing  to  the  correctness  of  the 
claim  for  the  construction  of  this 
wall  and  also  in  another  monthly 
estimate  recognized  in  writing  the 
propriety  of  this  work.  The  com- 
mon council  accepted  the  estimate  of 
October  23,  1893,  made  by  the  en- 
gineer acting  for  and  in  the  name 
of  the  commissioner  which  embraced 
$550  for  the  stone  work  and  ordered 


§  295 


POWER    TO    CONTRACT. 


661 


may  be  required  because  of  causes  beyond  the  control  of  either 
party  to  the  contract  or  because  of  acts  done  by  either  the  con- 
tractor or  the  public  corporation,  the  public  corporation  chan- 
ging the  contract  requirements  after  its  execution  and  before  the 
completion  of  the  work.  For  causes  beyond  the  control  of  both 
parties  unless  covered  by  provisions  of  the  contract,  the  con- 
tractor ordinarily  assumes  all  risk.918  If  the  "extras"  are  oc- 
casioned or  consented  to  by  the  public  corporation,  it  is  liable 


it  paid.  This  was  done;  but  sub- 
sequently the  common  council  order- 
ed the  commissioner  of  public  works 
to  make  a  final  estimate  o  account 
omitting  the  said  extra  work  and 
making  a  statement  that  there  was 
finally  due  the  contractors  on  the 
contract  but  $792.36;  and  the  com- 
mon council  also  adopted  a  resolu- 
tion that  the  stone  wall  was  built 
without  proper  authority  and  the 
city  was  not  liable.  The  city  en- 
gineer was  the  only  witness  sworn. 
He  testified  that  the  work  was  neces- 
sary in  order  to  carry  out  the  con- 
tract to  build  this  vertical  wall  and 
that  it  was  extra  work.  *  *  * 
The  work  was  not  only  necessary 
and  proper  but  it  was  performed  in 
good  faith.  No  fraud  is  claimed  but 
it  is  admitted  that  the  contractors 
had  properly  performed  the  work 
and  that  it  was  worth  the  amount 
claimed  by  the  plaintiff.  The  de- 
fendant has  the  benefit  of  this  work 
and  the  plaintiff  should  not  be  de- 
prived of  the  judgment."  Follow- 
ing Brady  v.  City  of  New  York,  20 
N.  Y.  312;  Weston  v.  City  of  Syra- 
cuse, 82  Hun  (N.  Y.)  67.  Watter- 
son  v.  City  of  Nashville,  106  Tenn. 
410,  61  S.  W.  782.  Extra  work  not 
authorized  in  the  manner  provided 
by  a  city  charter  cannot  be  a  charge 
upon  the  city. 

»i6  Gartner  v.  City  of  Detroit,  131 
Mich.  21,  90  N.  W.  690.     In  this  case 


the  contract  merely  gave  the  con- 
tractor permission  to  tunnel  if  he 
saw  fit  without  in  any  way  agreeing 
to  pay  him  therefor.  On  sinking  a 
shaft  preliminary  to  tunneling,  quick 
sand  was  struck  and  the  plan  aban- 
doned. The  contractor  then  dug  a 
trench  but  at  a  cost  considerably 
exceeding  the  contract  price.  He 
sues  to  recover  the  cost  of  the  trench 
as  "extra."  The  court  said:  "To 
us  the  case  seems  a  simple  one.  We 
think  that  it  cannot  be  said  that  the 
fact  that  the  job  was  let  with  an  ex- 
pectation that  it  would  be  tunneled 
indicates  an  intention  to  represent 
that  it  could  be  tunneled.  On  the 
contrary  the  language  of  the  con- 
tract is  a  permission  to  tunnel  and 
the  indication  that  this  was  so  un- 
derstood is  emphasized  by  the  ex- 
press provision  of  the  contract  quot- 
ed, imposing  risks  of  obstructions 
upon  the  contractor.  The  job  was 
advertised  and  let  upon  such  terms 
and  while  we  appreciate  the  hard- 
ship of  having  to  perform  a  contract 
at  a  loss  we  cannot  relieve  the  con- 
tractor from  the  obligation  of  his 
contract."  Citing  McBrian  v.  City 
of  Grand  Rapids,  56  Mich.  99. 

Wheeler  v.  Van  Houten,  12  Johns. 
(N.  Y.)  311;  McJimsey  v.  Traverse, 
1  Stew.  (Ala.)  244;  Burnham  v. 
City  of  Milwaukee,  100  Wis.  65,  75 
N.  W.  1014. 


662 


POWERS. 


§  295 


and,917  on  the  other  hand,  if  the  contractor's  acts  cause  extra 
work  or  the  use  of  extra  materials,  he  clearly  should  stand  the 
loss.918  Municipal  contracts  generally  provide  that  no  claims 
for  "extras"  shall  be  allowed  unless  pursuant  to  the  written  or- 
der or  direction  of  a  designated  official  or  official  body.  Such 
provision  is  valid  and  the  order  or  direction  is  then  necessary  to 
a  legal  claim  for  compensation  on  account  of  extra  work  or  ma- 
terials furnished  by  the  contractor.918 


si'  Zottman  v.  City  &  County  of 
San  Francisco,  20  Cal.  96;  J.  M. 
Griffith  Co.  v.  City  of  Los  Angeles 
(Cal.)  54  Pac.  383.  But  the  consent 
should  be  in  the  manner  authorized 
by  law,  in  writing  and  by  order  of 
the  council,  otherwise,  there  is  no 
liability  even  on  a  quantum  meruit. 

Norwalk  Gaslight  Co.  v.  Borough 
of  Norwalk,  63  Conn.  495.  The 
consent  need  not  be  expressed;  it 
may  be  implied  from  acts  of  the 
corporation.  Hamilton  County 
Com'rs  v.  Newlin,  132  Ind.  27,  31 
N.  E.  465;  Guthrie  v.  City  of  Du- 
buque,  105  Iowa,  653,  75  N.  W.  500; 
City  of  Duluth  v.  McDonnell,  61 
Minn.  288.  The  contrary  rule  of 
course  is  true  that  where  no  con- 
sent is  given  and  extras  are  paid 
for  without  such  consent  the  amount 
can  be  subsequently  recovered. 
Steffen  v.  City  of  St.  'Louis,  135  Mo. 
44,  36  S.  W.  31;  McCann  v.  City  of 
Albany,  11  App.  Div.  378,  42  N.  Y. 
Supp.  94.  The  rule  is  also  true 
where  the  extra  work  was  made 
necessary  by  the  mistake  of  a  city 
official.  Gearty  v.  City  of  New 
York,  171  N.  Y.  61,  63  N.  E.  804, 
reversing  62  App.  Div.  72,  70  N.  Y. 
Supp.  942. 

sis  Hamilton  County  Com'rs  v. 
Newlin,  132  Ind.  27,  31  N.  E.  465. 

919  Campbell  v.  District  of  Colum- 
bia, 117  U.  S.  615;  J.  M.  Griffith  Co. 
v.  City  of  Los  Angeles  (Cal.)  54 


Pac.  383;  O'Hara  v.  City  of  New 
Orleans,  30  La.  Ann.  152;  Boston 
Elec.  Co.  v.  City  of  Cambridge,  163 
Mass.  6-  39  N.  E.  787.  The  rule 
holds  when  the  extra  work  was 
beneficial  to  the  corporation  and 
used  by  it.  City  of  Duluth  v.  Mc- 
Donnell, 61  Minn.  288.  The  court 
say:  "The  contract  expressly  pro- 
vided that  no  claim  for  extra  work 
should  be  made  unless,  before  the 
performance,  the  village  council 
should  have  first  authorized  the  en- 
gineer in  writing  to  do  such  extra 
work,  nor  unless,  before  its  per- 
formance, the  price  to  be  paid  there- 
for should  have  first  been  agreed 
upon  in  writing  between  the  en- 
gineer and  contractor,  and  approved 
by  the  village  council  and  done  in 
obedience  to  a  written  order  from 
the  engineer,  given  before  the  per- 
formance of  the  extra  work. 
*  *  *  The  provisions  of  the  con- 
tract referred  to  are  proper  and 
necessary  in  order  to  protect  the 
public  treasury.  The  defendant 
knew  they  were  in  the  contract 
when  he  executed  it;  and  to  allow 
him,  in  utter  disregard  of  its  terms, 
to  retain  money  paid  to  him  by  mis- 
take would,  under  the  circum- 
stances, be  inequitable  against  good 
conscience  and  against  public  policy. 
Any  other  rule  would  open  wide  the 
door  for  the  perpetration  of  all  sorts 
of  raids  and  frauds  on  the  public 


§  297 


POWER    TO    CONTRACT. 


663 


§  296.    Public  contracts;  actions. 

It  is  not  usual,  in  an  action  against  a  public  corporation  on  a 
contract,  unless  its  right  to  contract  in  a  particular  matter  is 
restricted,  to  show  the  authority  for  making  the  contract  and 
the  necessary  steps  taken  pursuant  to  such  authority  leading  to 
its  formal  execution.920  In  controverted  cases  unless  the  contrary 
appears  in  the  contract,  a  slight  variation  in  the  manner  of  its  per- 
formance will  not  afford  a  defense  in  an  action  upon  it.  This 
principle  especially  holds  where  the  variation  results  in  an  ad- 
vantage to  the  corporation.921 

§  297.    Bond  required  of  contractors. 

It  is  customary  in  the  making  of  all  contracts  by  public  cor- 
porations to  include  as  one  of  the  conditions  of  the  contract 
the  requirement  that  the  contractor  shall  give  a  bond  with  sat- 
isfactory sureties  running  to  the  corporation,922  and  conditioned 


treasury."  Leathers  v.  City  of 
Springfield,  65  Mo.  504;  O'Brien  v. 
City  of  New  York,  65  Hun,  112,  19 
N.  Y.  Supp.  793. 

920  Goodyear   Rubber   Co.    v.    City 
of    Eureka,    135    Cal.    613,    67    Pac. 
1043;    City  of  Chicago  v.  Peck,  196 
111.  260;  City  of  Solomon  v.  Hughes, 
24  Kan.  211. 

921  Brady   v.    City    of   New    York, 
132  N.  Y.  415,  30  N.  E.  757;   Mulhol- 
land  v.  City  of  New  York,  113  N.  Y. 
631. 

922  Stephenson  v.  Monmouth  Min. 
&  Mfg.  Co.    (C.  C.  A.)   84  Fed.  114. 
A  creditor  of  a  contractor  on  a  bond 
given  under  How.  Ann.  St.  Mich.  § 
8411b    having    a    beneficial    interest 
therein  may  sue  in  the  name  of  the 
city    without    its    consent.    In    this 
case  the  bond,  by  mistake,  ran  to  the 
"City  of  Menominee"  instead  of  to 
the  "State  of  Michigan"  as  provid- 
ed by  statute.     In  holding  that  this 
did  not  vitiate  it  and  that  the  con- 
tractor could  sue  in  the  name  of  the 
city  under  it  the  Court  said:     "The 


difference  resulting  from  the  mis- 
take in  drawing  the  bond  so  as  to 
run  to  a  promisee  not  authorized 
by  the  statute  is,  that  if  the  bond 
had  run  to  the  statutory  obligee,  the 
statute  itself  granted  authority  for 
the  starting  of  a  suit  in  the  name 
of  the  people  of  the  state  of  Michi- 
gan for  the  use  and  benefit  of  any- 
one intended  as  a  beneficiary;  while 
there  is  no  statutory  authority  by 
which  defendant  in  error  might  have 
used  the  name  of  the  substituted 
obligee  as  plaintiff  for  its  use  and 
benefit.  That  no  one  can  use  the 
name  of  another  as  plaintiff  without 
his  consent  given  in  fact  or  by  legal 
intendment  is  clear.  But  when  a 
public  municipality  charged  with  the 
duty  of  taking  and  holding  the 
bond  required  by  this  statute  takes 
a  bond  properly  conditioned  but  run- 
ning to  itself,  it  does  by  legal  in- 
tendment consent  to  the  use  of  its 
corporate  name  as  plaintiff  by  any- 
one beneficially  interested  in  the 
bond  thus  taken,  when  indemnified 


664 


POWERS. 


297 


upon  the  proper  performance  of  the  work,023  the  furnishing  of 
satisfactory  materials,924  the  payment  of  all  debts  in  connection 
with  the  performance  of  the  contract  including  labor  and  ma- 
terials furnished.925  The  purpose  of  the  first  two  conditions 


against  costs.  No  express  authority 
of  law  is  needed  to  authorize  tve 
use  of  the  name  of  the  city  under 
such  circumstances,"  citing  Kiersted 
v.  State,  1  Gill  &  J.  (Md.)  231;  and 
Ing  v.  State,  8  Md.  287. 

City  of  Newton  v.  Devlin,  134 
Mass.  490. 

»23  Williams  v.  Markland,  15  Ind. 
App.  669,  44  N.  E.  562;  City  of  Ft. 
Madison  v.  Moore,  109  Iowa,  476; 
Seaboard  Nat.  Bank  v.  Woesten,  147 
Mo.  467,  48  L.  R.  A.  279;  City  of 
New  York  v.  Reilly,  59  Hun,  501, 
13  N.  Y.  Supp.  521. 

924Gosnell  v.  City  of  Louisville, 
104  Ky.  201,  46  S.  W.  722;  Zipp  v. 
Fidelity  &  Deposit  Co.  of  Maryland, 
73  App.  Div.  20,  76  N.  Y.  Supp. 
386;  City  of  Portland  v.  Bituminous 
Pav.  &  Imp.  Co.,  33  Or.  307,  52  Pac. 
28,  44  L.  R.  A.  527.  Such  a  condi- 
tion in  a  bond  is  held  to  be  an  un- 
dertaking to  maintain  the  pavement 
constructed  in  repair  for  the  desig- 
nated time  and  not  a  mere  guarantee 
of  the  character  and  materials. 

»25  French  v.  Powell,  135  Cal.  636, 
68  Pac.  92;  Lane  v.  State,  14  Ind. 
App.  573,  43  N.  E.  244;  School  Town 
of  Winamac  v.  Hess,  151  Ind.  229; 
McKeon  v.  Sumner  Bldg.  &  Supply 
Co.,  51  La.  Ann.  1961,  26  So.  430; 
Park  v.  Sykes,  67  Minn.  153;  Peo- 
ple v.  Collins  (Mich.)  71  N.  W.  153. 
Construing  the  term  "laborers"  and 
"material  men"  as  used  in  a  con- 
tractor's bond  under  How.  Ann.  St. 
i§  8411a,  8411b  and  8411c. 

Coit  v.  City  of  Grand  Rapids,  115 
Mich.  493;  People  v.  Thompson,  119 
Mich.  21,  77  N.  W.  314.  A  person, 


not  requested,  who  furnished  slate 
black  board  is  a  material  man  and 
not  a  sub-contractor.  Sepp  v.  Mc- 
Cann,  47  Minn.  364;  and  Salisbury 
v.  Keigher,  47  Minn.  367;  holds  that 
Sp.  Laws  Minn.  1889,  c.  360,  provides 
for  the  payment  of  laborers  employ- 
ed by  subcontractors  as  well  as  con- 
tractors. 

Freeman  v.  Berkey,  45  Minn.  438, 
48  N.  W.  194;  Ihk  v.  City  of  Duluth, 
58  Minn.  182,  59  N.  W.  960.  The 
neglect  of  city  officials  to  take  the 
bond  required  by  the  municipal 
charter  does  not  impose  a  liability 
upon  the  contractor. 

American  Surety  Co.  of  New  York 
v.  Waseca  County  Com'rs,  77  Minn. 
92,  79  N.  W.  649.  Where  a  bond 
has  been  given  conditioned  that  the 
contractor  shall  pay  all  just  claims 
for  work  and  labor  performed  and 
materials  furnished,  payments  can- 
not be  withheld  from  him  because 
he  is  in  default  with  the  laborers 
and  material  men. 

City  of  St.  Louis  v.  O'Neil  Lum- 
ber Co.,  42  Mo.  App.  586;  Devers  v. 
Howard,  144  Mo.  671,  46  S.  W.  625; 
City  of  St.  Louis  v.  Von  Phul,  133 
Mo.  561,  overruling  Kansas  City 
Sewer  Pipe  Co.  v.  Thompson,  120 
Mo.  221;  Kansas  City  v.  O'Connell, 
99  Mo.  357.  A  covenant  in  a  bond 
for  the  payment  of  laborers  does  not 
give  a  right  of  action  against  the 
sureties  by  laborers  for  injuries  sus- 
tained by  them  while  employed  by 
the  contractor. 

City  of  Springfield  v.  Weaver,  137 
Mo.  650;  Lyman  v.  City  of  Lincoln, 
38  Neb.  794,  57  N.  W.  531.  The  bond 


g  297 


POWER    TO    CONTRACT. 


665 


named  is  to  secure  the  performance  of  the  work  in  a  satisfactory 
manner;  to  provide  a  means  by  which  the  corporation  may  in- 
demnify itself  against  any  attempt  on  the  part  of  dishonest  con- 
tractors to  furnish  materials  or  perform  work  not  of  the  char- 
acter or  quality  required  by  their  contract,  The  purpose  of  the 
third  condition  is  to  insure  the  payment  of  all  bills  by  the  con- 
tractor which,  if  unpaid,  would  furnish  a  basis  for  the  filing  of 
liens  in  favor  of  laborers  or  material  men.  Their  prompt  payment 
before  the  acceptance  of  work  by  the  corporation  insures  a  free- 
dom from  vexatious  litigation  as  well  as  the  opportunity  afford- 
ed a  contractor  without  paying  his  bills  to  collect  his  compensa- 
tion from  the  municipality  leaving  it  the  possible  obligation  of 
paying  again  for  the  materials  or  services  that  can  be  collected 
under  lien  laws.926  A  creditor  of  a  contractor  may  have  such  a 
beneficial  interest  in  a  bond  as  to  enable  him  to  sue  thereon  with- 
out the  consent  of  the  city.  The  right  if  it  exists,  usually  is  given 
by  statute,927  and  it  is  not  a  prerequisite,  ordinarily,  to  an  action 


may  be  required  without  an  express 
statute  or  other  legal  provision. 
Mansfield  v.  City  of  New  York,  15 
App.  Div.  316,  44  N.  Y.  Supp.  229. 
buch  a  condition  ordinarily  does 
not  cover  claims  for  damages  suf- 
fered from  personal  injuries. 

Rhea  County  v.  Sneed,  105  Tenn. 
581,  58  S.  W.  1063;  Town  of  Grand 
Isle  v.  Kinney,  70  Vt.  381;  State  v. 
Liebes,  19  Wash.  589;  Wallace  v. 
Skagit  County,  8  Wash.  457;  Elec- 
tric Appliance  Co.  v.  United  States 
Fidelity  &  Guaranty  Co.,  110  Wis. 
434,  85  N.  W.  648,  53  L.  R.  A.  609. 
A  failure  by  the  city  to  require  the 
filing,  by  the  contractor,  of  receipts 
In  full  for  labor  and  materials  be- 
fore the  final  payment  on  the  work, 
releases  the  sureties  on  the  bond. 

»26  Read  v.  American  Surety  Co., 
117  Iowa,  10,  90  N.  W.  590;  White- 
house  v.  American  Surety  Co.,  117 
Iowa,  328,  90  N.  W.  727;  Kansas  City 
v.  McDonald,  73  Mo.  App.  439;  Cam- 
den  Iron  Works  v.  City  of  Camden, 


60  N.  J.  Eq.  211,  47  Atl.  220;  Nor- 
ton v.  Sinkhorn,  63  N.  J.  Eq.  313, 
50  Atl.  506;  Garrison  v.  Borio,  61  N. 
J.  Eq.  236,  47  Atl.  1060,  construing 
Gen.  St.  p.  2078,  Act  March  30,  1892; 
McDonald  v.  Village  of  Ballston  Spa, 
34  Misc.  496,  70  N.  Y.  Supp.  279; 
Hamilton  v.  Gambell,  31  Or.  328,  48 
Pac.  433;  City  of  Philadelphia  v. 
Wistar,  35  Pa.  427;  Herring-Hall- 
Marvin  Co.  v.  Kroeger,  23  Tex.  Civ. 
App.  672,  57  S.  W.  980. 

927  State  v.  McCray,  5  Ind.  App. 
350,  32  N.  E.  341;  Callahan  v.  City 
of  Boston,  175  Mass.  201,  constru- 
ing statutes  of  1892,  c.  270,  relative 
to  debts  due  for  labor  performed  in 
constructing  public  works. 

Devers  v.  Howard,  144  Mo.  671,  46 
S.  W.  625;  Doll  v.  Grume,  41  Neb. 
655,  59  N.  W.  806.  Only  the  author- 
ized laborer  and  materialmen  may 
sue  on  the  condition  in  a  contract- 
or's bond  to  the  city  that  he  shall 
pay  for  all  labor  and  materials 
furnished  in  executing  the  contract. 


666 


POWERS. 


§  297 


on  a  contractor's  bond  conditioned  for  the  payment  of  claims  for 
labor  and  material,  that  the  payment  of  such  claims  should  have 
been  demanded.928 


Baum  v.  Whatcom  County,  19  Wash. 
626.  Under  1  Hill's  Code,  §  2415,  a 
bond  conditioned  to  pay  all  laborers, 
material  men,  etc.,  may  be  enforced 
by  a  material  man. 

The  following  cases  hold  that  such 
right  does  not  exist.  Columbia 
Brick  Co.  v.  District  of  Columbia, 
1  App.  D.  C.  351.  Material  men  not 
parties  to  a  contract  cannot  enforce 
provisions  relative  to  payment. 
Kansas  City  Sewer  Pipe  Co.  v. 
Thompson,  120  Mo.  218,  25  S.  W. 
522.  A  materialman  has  no  right 
of  action  on  a  bond  containing  such 
condition.  Buffalo  Cement  Co.  v. 
McNaughton,  156  N.  Y.  702.  Such 
a  bond  is  intended  solely  for  the 
benefit  of  the  city  and  persons 
furnishing  material  cannot  sue 
thereon.  Electric  Appliance  Co.  v. 
United  States  Fidelity  &  Guaranty 
Co.,  110  Wis.  434,  85  N.  W.  648,  53 
L.  R.  A.  609.  Usually,  the  bond  is 
for  the  benefit  of  the  city  alone;  a 
creditor  having  a  claim  for  labor  or 
material  capable  of  collection 
through  the  filing  of  a  lien  does  not 
have  the  right  to  sue  on  the  bond 
given  by  the  contractor. 

»28  Lane  v.  State,  14  Ind.  App. 
573,  43  N.  E.  244.  "It  is  next  in- 
sisted that  the  conclusions  of  law 
are  erroneous  because  there  is  no 
finding  that  a  demand  was  made 
before  the  suit  was  brought.  The 
finding,  however,  does  show  that  the 
road  had  been  completed  and  that 
the  contractors  had  recovered  the 
full  amount  of  the  contract  price 
and  that  the  claims-  for  labor,  ma- 
terials and  board  were  due,  and  that 


the  contractors  had  failed  to  pay 
the  same  and  that  certificates  of  in- 
debtedness had  been  issued  by  the 
contractors  for  nearly  all  the  claims 
and  orders  drawn  upon  third  par- 
ties for  the  same  which  orders  had 
been  paid  by  the  holders  to  the 
laborers  anu  material  men  long  be- 
fore the  commencement  of  the  ac- 
tion. The  superintendent  was  a 
public  officer  and  it  was  a  part  of 
his  official  duty  to  enforce  the  bond 
for  the  benefit  of  the  laborers  and 
material  men.  When  he  learned 
that  such  claims  had  not  been  paid 
after  the  completion  of  the  road, 
and  full  settlement  had  been  made 
with  the  contractors,  it  was  his  duty 
to  enforce  the  bond.  The  appel- 
lants contracted  with  the  state  with 
the  understanding  that  they  would 
be  liable  for  such  claims  and  it  was 
their  duty  to  see  that  such  claims 
were  paid  and  when  they  failed  to 
do  so  there  was  a  breach  of  the 
bond.  The  suit  here  is  brought  by 
the  person  designated  by  the  law, 
in  the  first  instance  and  perhaps 
the  only  one  who  can  maintain  the 
action.  It  is  true  that,  *  *  * 
when  the  suit  is  brought  by  the 
laborer  or  material  man  on  his  own 
relation,  a  demand  must  be  first 
made  of  the  contractor.  There  the 
suit  is  brought  by  a  person  not  a 
direct  party  to  the  bond.  Here  the 
suit  is  brought  by  the  person  desig- 
nated by  the  law  and  one  whom  the 
appellants  knew  when  they  executed 
the  bond,  would  be  entitled  to  en- 
force it;  while  in  the  other  case 
the  laborers  are  unknown  at  the 


§  298 


POWER    TO    CONTRACT. 


667 


§  298.    Rights  of  sureties. 

Sureties  on  a  contractor's  bond  given  for  either  the  faithful 
performance  of  the  work  or  the  payment  of  material  men  and 
laborers  are  not  liable  to  third  parties  indirectly  furnishing  ma- 
terials in  performing  the  contract.929  If  the  contractor  fails  to 
complete  the  work  or  abandons  his  contract,  the  sureties  on  the 
bond  given  by  him  may  have  the  right  to  assume  and  perform 
the  contract  according  to  its  terms  and  conditions;  they  then 
stand  in  the  place  of  and  are  substituted  for  the  original  con- 
tractor entitled  to  his  rights  and  subject  to  his  obligations.930 


time  the  bond  is  executed.  The 
suit  was  a  sufficient  demand  in  this 
case." 

»29  See  cases  cited  §  297.  City  of 
Sterling  v.  Wolf,  163  111.  467.  "The 
rule  has  been  re-announced  by  this 
court  in  almost  numberless  cases, 
that  the  undertaking  of  a  surety  is 
strictly  construed  and  may  not  be 
extended  by  implication  or  con- 
struction; that  he  cannot  be  held 
beyond  the  express  terms  of  his  un- 
dertaking. The  liability  is  strictissi- 
mi  juris.  In  case  of  doubt,  the  doubt 
is  generally  resolved  in  his  favor. 
To  hold  that  it  was  intended  by  the 
parties  that  the  sureties  for  Real 
(the  contractor)  were  to  become  re- 
sponsible to  third  parties  for  all 
the  material,  labor  and  tools  em- 
ployed and  used  by  him  in  the  per- 
formance of  his  contract  with  the 
city  would  be  to  hold  the  sureties 
liable,  not  only  beyond  the  letter  of 
their  contract,  but  make  them  liable 
by  a  most  liberal  and,  we  think,  un- 
justifiable construction  of  their  con- 
tract." 

»3o  Jones  v.  City  of  New  York,  60 
App.  Div.  161,  70  N.  Y.  Supp.  46. 
The  court  here  say:  "The  only 
question  then  remaining,  is  whether 
the  offer  by  the  board  of  education 
to  the  contractors  that  they  might 


go  on  and  complete  the  work,  with 
a  concession  that  the  time  that  had 
elapsed  between  the  2nd  of  June, 
when  the  notice  was  given,  and  the 
27th  of  June,  when  it  was  with- 
drawn, should  not  be  counted  as  a 
part  of  the  three  hundred  days,  op- 
erated as  a  waiver  of  the  forfeiture 
that  had  already  occurred.  If  that 
offer  had  been  accepted  by  the 
plaintiffs  there  can  be  no  doubt  that 
the  contract  would  have  been  re- 
stored; but  they  refused  peremptor- 
ily to  take  advantage  of  it,  and, 
having  done  that,  they  are  not  now 
at  liberty  to  say  that  the  contract 
is  not  at  an  end.  It  is  claimed, 
however,  that  the  sureties  having 
offered  to  complete  the  contract,  the 
forfeiture  as  to  them,  was  waived. 
But  they  never  did  offer.  All  that 
was  done  in  that  behalf  was  done  by 
Mr.  Winter  who  said  that  he  went 
to  the  board  of  education  and  asked 
permission  that  one  Hay,  the  in- 
demnitor  of  the  sureties,  should  be 
allowed  to  continue  the  work.  He 
says  expressly  that  he  represented 
Mr.  Hay  and  never  had  anything  to 
do  with  the  surety  company,  nor  did 
he  represent  it.  The  contract  was 
at  an  end.  The  surety  company 
were  no  longer  at  liberty  to  do  any 
work  upon  it.  There  was  no  obli- 


668 


POWERS. 


299 


In  case  of  the  assignment  of  the  contract  with  the  consent  of  all 
parties  including  the  sureties,  their  relative  obligations  are  not 
changed.931 

§  299.     Subcontractors. 

The  statutes  providing  for  the  filing  of  liens  by  laborers  or 
material  men  for  labor  performed  or  materials  furnished  do  not 
ordinarily  apply  to  subcontractors.  The  payment  of  a  claim  for 
either  laborer  or  material  may  depend,  therefore,  upon  the  bring- 
ing of  the  person  performing  the  labor  or  supplying  the  materi- 
als within  either  class,  holding  him  as  a  subcontractor  will  defeat 
his  right  of  securing  the  statutory  lien ;  conversely  the  reverse  is 
true.  No  general  rule  applicable  to  the  construction  of  such 
statutes  can  be  given  the  decisions  of  the  different  states  must  be 
consulted.  The  statute  giving  the  lien  may  benefit  the  laborers 
of  material  men  and  subcontractors  as  well  as  contractors.  So 
held  by  all  the  Minnesota  cases  cited. 


gation  on  the  part  of  the  city  or  the 
board  of  education  to  make  a  new 
arrangement  with  them  unless  they 
saw  fit." 

sal  French  v.  Powell,  135  Cal.  636, 
68  Pac.  92;  Anderson  v.  City  of  De- 
troit (Mich.)  83  N.  W.  145;  Peo- 
ple v.  Powers,  108  Mich.  339;  Peo- 
ple v.  Cotteral,  119  Mich.  27;  Combs 
v.  Jackson,  69  Minn.  336,  72  N.  W. 
565.  "There  is  no  evidence  that 
plaintiff's  assignors,  when  they  per- 
formed labor  in  quarrying  and 
crushing  the  rock,  had  particularly 
in  mind  any  contract  between  their 
employer,  Anderson,  and  Canney 
Brothers,  or  that  they  performed  the 
labor  for  the  specific  or  particular 
purpose  of  aiding  in  the  execution 
of  that  contract  or  in  reliance 
upon  it  as  security  for  the  payment 
of  their  labor,  or  that  they,  at  that 
time,  knew  where  or  for  what  pur- 
pose the  rock  was  to  be  used.  It  is 
claimed  upon  this  state  of  facts, 
that  although  Anderson  may  have 
gotten  out  and  furnished  this  ma- 
terial as  sub-contractor,  in  the  exe- 


cution of  the  contract  between  Jack- 
son and  the  City,  and  the  material 
was  so  used,  yet  plaintiff's  assign- 
ors had  no  right  of  action  on  the 
bond  because  they  did  not  perform 
the  labor  'particularly  for  such  con- 
tract.' *  *  *  If  Anderson,  as 
sub-contractor,  got  out  and  furnish- 
ed this  rock  for  this  paving  con- 
tract, and  it  was  actually  used 
therefor,  then  those  who  performed 
labor  for  him  in  preparing  the  ma- 
terial may  maintain  an  action  on 
the  bond  although  while  doing  the 
work,  they  may  not  have  had  in 
mind  the  purpose  of  aiding  in  the 
execution  of  the  contract  between 
Jackson  and  the  city.  Any  other 
construction,  would,  in  a  great  meas- 
ure, defeat  the  manifest  purpose  of 
the  statute,  and  deprive  of  its  bene- 
fits a  large  class  of  persons  who 
stand  most  in  need  of  its  protec- 
tion." Kansas  City  v.  McDonald,  80 
Mo.  App.  444;  Gilmore  v.  Wester- 
man,  13  Wash.  390;  James  v.  David- 
son, 81  Wis.  321,  51  N.  W.  565. 


CHAPTER  VI. 

PUBLIC  REVENUES;   THEIR  COLLECTION  AND  DISBURSEMENT. 

I.     TAXATION. 

II.  SPECIAL  ASSESSMENTS. 

(For   complete   analysis    of  this   subdivision   see  page   773.) 

III.  LICENSE  FEES  AND  POLL  TAXES. 

(For   complete   analysis    of  this  subdivision  see  Vol.  II.) 

IV.  THE  DISBURSEMENT  OF  PUBLIC  REVENUES. 

(For  complete  analysis   of  this  subdivision  see  Vol.  II.) 

I.    TAXATION. 

i§  300.  Definition  and  nature. 

301.  Municipal  power  to  tax. 

302.  The  authority. 

303.  Limitations  upon  the  power. 

304.  Purpose  of  taxation. 

305.  The  payment  of  debts. 

306.  Taxation  for  the  support  of  public  schools. 

307.  School  taxes;  amount  required. 

308.  Diversion  of  funds. 

309.  The  construction  of  roads. 

310.  The  levy  of  taxes  for  the  establishment  or  maintenance  of 

plants  for  the  supply  of  water  and  light. 

311.  The  exercise  of  the  power. 

312.  The  authority  to  tax  and  upon  what  based. 

313.  Exemptions. 

314.  Taxes;  their  levy  and  assessment. 

315.  Basis  or  authority  for  tax  levy. 

316.  Agency  of  tax  levy. 

317.  Apportionment  of  taxes. 

318.  Tax  levies;  preliminary  proceedings. 

319.  Mode  of  levy  and  assessment. 

320.  Loss  of  power. 

321.  Errors  in  proceedings. 

322.  The  power;  when  exercised. 


670  PUBLIC  REVENUES.  §   200 

323.  The  duty  obligatory. 

324.  Equalization  of  tax  levies. 

325.  Taxpayers'  rights. 

326.  Lien  and  priority. 

327.  Collection  of  taxes. 

328.  Actions;   questions  raised. 

329.  Use  of  proper  remedy  by  taxpayers  to  prevent  collection  of 

illegal  taxes. 

330.  Compromise  of  taxes. 

331.  Right  to  prescribe  and  collect  penalties. 

332.  Irregularities. 

333.  Enforcement  of  lien. 

334.  Summary  proceedings. 

335.  The  payment  of  taxes. 

336.  Their  refunding. 

§  300.    Definition  and  nature. 

The  power  of  taxation  is  one  of  the  inherent  attributes  of 
sovereignty.  It  is  that  power,  political  and  governmental  in  its 
nature,  which  can  compel,  if  necessary,  a  contribution  for  the 
support  of  the  government  from  those  under  its  jurisdiction. 
Theoretically,  it  has  no  limit.  It  is  that  power  most  necessary 
to  the  existence  and  maintenance  of  government  and  the  exercise 
of  the  various  functions  which  are  universally  recognized  as 
proper.  It  is  through  the  existence  of  this  power  that  its  or- 
dinary expenses  are  paid,  and,  in  addition,  it  is  enabled  to  main- 
tain the  various  beneficent  agencies  having  for  their  purpose 
the  safety,  advancement  and  the  advantage  of  society.  Under 
some  theories,  the  individual  is  supposed,  in  return  for  a  sur- 
render to  government  of  the  right  to  tax  his  person  and  prop- 
erty, to  receive  the  obligation  of  that  government  to  protect  him 
in  the  proper  use  and  enjoyment  of  his  property  and  to  guard 
his  personal  rights,  but  ordinarily  the  power  of  taxation  is  a 
governmental  and  political  necessity  and  there  is  no  legal  obli- 
gation to  render  a  return.1 

i  Rolph  v.  City  of  Fargo,  7  N.  D.  support  between  the  state  and  those 

640,  76  N.  W.  242,  42  L.  R.  A.  646;  who  are  subject  to  its  authority,  and 

Trustees  of  Public  Schools  v.  Taylor,  the  exclusive  sovereignty  and  juris- 

30  N.  J.  Eq.   (3  Stew.)  618.     Cooley,  diction  of  the  state  over  all  persons 

Taxation,  p.  2,  "The  justification  of  and   property  within   its  limits   for 

the  demand  is  therefore  found  in  the  governmental  purposes.     The  person 

reciprocal   duties   of  protection  and  upon  whom  the  demand  is  made,  or 


300 


TAXATION. 


671 


The  power  of  taxation  is  different  in  its  nature  from  those 
other  great  governmental  powers,  namely,  the  police  power,  the 
power  of  eminent  domain  and  the  war  power.  The  police  power 
is  purely  regulative  and  its  exercise  designed  to  restrict  the  in- 
dividual in  the  use  of  his  physical  powers  and  in  the  use  and  en- 
joyment of  his  property  enforcing  the  maxim  sic  utere  tuo  ut 
alienum  non  loedas.  Government  recognizes  the  individual  only 
as  a  member  of  society  with  obligations  and  duties  to  that  so- 
ciety of  which  he  is  a  member.2 

The  power  of  eminent  domain  is  that  inherent  right  possessed 
by  the  sovereign  to  appropriate  private  property  for  public  use 
with  the  organic  limitation  in  this  land,  "only  upon  the  payment 
of  just  compensation,"  which  must  be  "full,  ample  and  com- 
plete" before  the  power  can  be  exercised.  There  can  be  no  tak- 
ing under  the  power  of  eminent  domain  without  the  rendition  of 
a  pecuniary  equivalent.3 


whose  property  is  taken,  owes  to  the 
state  a  duty  to  do  what  shall  be  his 
just  proportion  towards  the  support 
of  government,  and  the  state  is  sup- 
posed to  make  adequate  and  full 
compensation,  in  the  protection 
which  it  gives  to  his  life,  liberty 
and  property,  and  in  the  increase  to 
the  value  of  his  possessions,  by  the 
use  to  which  the  money  contributed 
Is  applied.  *  *  *  The  power  of 
taxation  is  an  incident  of  sover- 
eignty, and  is  possessed  by  the  gov- 
ernment without  being  expressly 
conferred  by  the  people,  *  *  * 
and  not  only  is  the  power  unlimited 
In  its  reach  as  to  subjects,  but  in  its 
very  nature  it  acknowledges  no  lim- 
its, and  may  be  carried  even  to  the 
extent  of  exhaustion  and  destruction 
thus  becoming  in  its  exercise  a  pow- 
er to  destroy.  If  the  power  be 
threatened  with  abuse,  security  must 
be  found  in  the  responsibility  of  the 
legislature  that  imposes  the  tax  to 
the  constituency  which  must  pay  it." 
2  Hanson  v.  Vernon,  27  Iowa,  28, 


1  Am.  Rep.  215,  with  cases  there 
cited  defining  taxes.  See,  also,  Peo- 
ple v.  McCreery,  34  Cal.  432;  Stock- 
ton &  V.  R.  Co.  v.  City  of  Stockton, 
41  Cal.  149;  People  v.  Austin,  47  Cal. 
360;  Warren  v.  Henly,  31  Iowa,  31; 
Allen  v.  Inhabitants  of  Jay,  60  Me. 
124;  Weismer  v.  Village  of  Douglas, 
64  N.  Y.  91;  Hilbish  v.  Catherman, 
64  Pa.  154. 

s  Alexander  v.  City  of  Alexandria, 
5  Cranch  (U.  S.)  1;  Gilman  v.  City 
of  Sheboygan,  2  Black  (U.  S.)  510. 
The  exercise  of  the  power  of  taxa- 
tion is  not  liable  to  the  objection 
that  private  property  is  taken  for 
public  purposes  without  compensa- 
tion. Such  provisions  operate  as  a 
limitation  only  on  the  right  of  emi- 
nent domain.  It  does  not  affect  the 
taxing  power.  Chambers  v.  Satter- 
lee,  40  Cal.  497;  Nichols  v.  City  of 
Bridgeport,  23  Conn.  189;  Brittin  v. 
Blake,  36  N.  J.  Law,  442;  Matter  of 
Dorrance  St.,  4  R.  I.  230;  Lewis, 
Em.  Dom. 


072  PUBLIC  REVENUES.  §   300 

The  war  power,  like  the  power  of  taxation,  is  a  governmental 
and  political  necessity,  but  properly  used  only  for  the  mainte- 
nance or  protection  of  national  life  or  honor.  The  power  of  tax- 
ation being  a  governmental  and  political  one,  in  the  abstract 
sense  is  without  limitation  and  can  be  exercised  without  restric- 
tion. In  this  country,  however,  there  are  well  established  and 
clearly  defined  limitations  upon  the  right  of  the  sovereign  to 
levy  taxes.  These  limitations  and  restrictions  are  to  be  found  in 
the  constitution  of  the  United  States  and  those  of  the  different 
states  and  exist  as  well  in  what  might  be  termed  for  want  of  a 
better  phrase  the  fundamental  principles  of  law  and  equity.  The 
subject  of  taxation  both  in  its  constitutional  and  administrative 
aspects  has  been  well  considered  by  the  authorities  cited  in  the 
notes,4  and  a  general  discussion  will  not  be  here  given  except  as 
delegated  or  granted  subordinate  governmental  agents,  and  this 
in  the  briefest  way.  The  power  of  the  sovereign  to  delegate  to 
subordinate  bodies  or  agencies  its  powers  of  taxation  is  unques- 
tioned though  such  grant  usually  conveys  no  unlimited  or  irrevo- 
cable rights.5  The  limitations  upon  the  power  usually  applied  by 
courts  have  for  their  purpose  the  imposition  of  taxes  in  a  uni- 

4  Sedgwick,  St.  Const.  Law;  Hare,  Huck  r.  Chicago  &  A.  R.  Co.,  86 

Am.  Const.  Law;  Cooley,  Const.  III.  352;  Lucas  v.  Tippecanoe  County 

Lim.;  Desty,  Taxation;  Burroughs,  Com'rs,  44  Ind.  524;  Bradley  v.  Mc- 

Taxation;  Cooley,  Taxation.  Atee,  70  Ky.  (7  Bush)  667;  City  of 

6  Citizens'  Sav.  &  Loan  Ass'n  v.  New  Orleans  v.  Turpin,  13  La.  Ann. 

City  of  Topeka,  87  U.  S.  (20  Wall.)  56;  Bracey  v.  Ray,  26  La.  Ann.  710; 

655;  Stein  v.  City  of  Mobile,  24  Ala.  State  v.  Linn  County  Ct.,  44  Mo. 

591;  Baldwin  v.  City  Council  of  504;  State  v.  Owsley,  122  Mo.  68; 

Montgomery,  53  Ala.  437;  Vance  v.  State  v.  Board  of  Education  of  St. 

City  of  Little  Rock,  30  Ark.  435;  Louis,  141  Mo.  45;  State  v.  Mason, 

State  v.  Union  Cent.  Life  Ins.  Co.  153  Mo.  23;  In  re  Zborowski,  68  N. 

(Idaho)  67  Pac.  647;  People  v.  City  Y.  88;  Wingate  v.  Sluder,  51  N.  C. 

of  Chicago,  51  111.  17;  Livingston  (6  Jones)  552;  Appeal  of  Durach,  62 

County  Sup'rs  v.  Welder,  64  111.  427.  Pa.  491;  Appeal  of  Butler,  73  Pa. 

"Corporate  purposes  must  be  for  4*8;  East  Tennessee  University  v. 

such  purposes  and  such  only  as  are  City  of  Knoxville,  65  Tenn.  (6  Baxt.) 

germane  to  the  objects  of  the  crea-  ibo;  Waterhouse  v.  Cleveland  Public 

tion  of  the  municipality,  at  least,  Schools,  55  Tenn.  (8  Heisk.)  857; 

such  as  have  a  limited  connection  Perry  v.  City  of  Rockdale,  62  Tex. 

with  those  objects  and  manifest  re-  451;  Bates  v.  Bassett,  60  Vt.  530, 

lation  thereto."  1  L.  R.  A.  166;  Peters  v.  City  of 

Lynchburg,  76  Va.  927. 


§   300  TAXATION. 

form,  orderly  and  impartial  way,  both  as  to  the  subjects  and 
methods  of  taxation  and  the  enforcement  of  the  power.6    It  is  not 

e  City  of  Mobile  v.  Dargan,  45  Ala.  He  receives  no  benefit  in  fact.  A 

310;  Sangamon  County  v.  City  of  multimillionaire  may  be  compelled 

Springfield,  63  111.  66.  A  constitu-  to  pay  an  enormous  school  tax,  al- 

tional  provision  requiring  uniform  though  he  has  no  child  to  be  edu- 

taxation  in  respect  to  persons  and"  cated  and  he  may  be  required  to 

property  is  not  contravened  by  a  bear  the  weight  of  heavy  taxes  for 

statute  providing  for  a  division  and  other  purposes  although  he  should 

apportionment  of  taxes  between  a  happen  to  be  practically  denied  the 

county  and  city  although  this  ap-  protection  of  the  laws  by  reason  of 

portionment  discriminates  against  the  envy  and  hatred  of  which  he 

the  county.  may  be  the  object  because  of  his 

Adams  v.  Mississippi  State  Bank,  great  wealth.  The  taxing  power 
75  Miss.  701,  23  So.  395.  A  consti-  rests  upon  necessity  and  not  senti- 
tution  providing  that  taxation  shall  ment.  If  organized  society  were  to 
be  uniform  and  equal  governs  the  wau  for  the  means  to  support  civil 
imposition  of  taxes  by  all  grades  government  until  an  ideally  just  sys- 
and  classes  of  subordinate  public  tern  Oi  taxation  could  be  devised  and 
corporations.  Carolina  Cent.  R.  Co.  put  into  successful  operation,  it  must 
v.  City  of  Wilmington,  72  N.  C.  73.  wait  like  the  rustic  who  tarried  by 
A  constitutional  requirement  for  tax-  the  river's  bank  for  the  stream  to 
ation  "by  uniform  rule"  is  violated  pass  by.  What  is  It  that  so  differ- 
by  a  charter  clause  providing  for  entiates  the  power  of  local  assess- 
assessment  by  the  mayor  and  alder-  mem  from  the  power  of  general  tax- 
men,  ation  that  in  one  case  the  sovereign 

London  v.  City  of  Wilmington,  78  must  give  back  in  value  all  that  is 
N.  C.  109;  Rolph  v.  City  of  Fargo,  7  taken  while  in  the  other  it  can  if 
N.  D.  640,  76  N.  W.  242;  42  L.  R.  A.  necessary  (unless  there  be  constitu- 
646.  The  constitution  of  North  Da-  tional  checks)  take  from  the  citizen 
kota,  §  176,  providing  that  laws  shall  all  his  property  without  reference  to 
be  passed  taxing  by  uniform  rule  his  receiving  in  return  any  corn- 
all  property  according  to  its  true  mensurate  advantage  or  any  benefit 
value  applies  to  general  taxation  at  all?  Until  this  question  is  an- 
only,  not  to  "local  assessments."  swered  in  favor  of  such  a  distinc- 
The  court  say  in  part:  "While  in  tion,  it  is  idle  to  talk  of  the  en- 
general  theory  the  citizen  receives  hanced  value  of  the  land  assessed  as 
a  benefit  equivalent  to  the  tax  he  is  the  limit  of  the  power  of  local  assess- 
called  upon  to  pay,  yet  it  is  com-  ment.  When  such  an  assessment  is 
-non  knowledge  that  this  is  a  mere  levied  upon  property  for  a  particu- 
fiction  which  is  in  conflict  with  the  lar  improvement,  a  tax  is  as  much 
truth;  and  of  course  it  is  elementary  collected  as  when  the  expense  of  the 
law  that  the  doctrine  of  benefit  does  work  is  charged  to  the  general  tax 
not  lie  at  the  foundation  of  the  levy.  The  only  distinction  is  that 
taxing  power  and  that  the  citizen  the  district  is  narrower  and  the  mode 
cannot  escape  a  tax  by  showing  that  of  apportionment  different.  Usually, 

Abb.  Corp.— 42. 


674 


f'LBLIC  REVENUES. 


§   300 


a  discretion  a  t  p  Bovver  when  once  granted  and  its  exercise  for 
legitimate  purposes  can  be  compelled  by  those  who  would  suffer 
from  a  failure  or  neglect  to  tax.7  It  is  a  continuing  power,  the 
exercise  or  nonuse  of  which  does  not  defeat  the  right  to  tax 
whenever  necessary,  subject  to  legal  limitations.8  When  granted 


too,  only  real  property  is  considered 
in  making  the  apportionment,  and 
not  all  property,  real  or  personal. 
In  all  other  respects  the  two  classes 
of  cases  are  identical.  The  same 
power  of  taxation  is  exercised  in 
each  instance,  and,  except  with  re- 
spect to  constitutional  restrictions  or 
inherent  limitations,  the  legislative 
discretion  is,  in  both  classes  of 
cases,  absolute.  We  have  already  re- 
ferred to  those  limitations  which  in- 
here in  the  very  nature  of  the  tax- 
ing power.  None  of  them  affect  the 
question  before  us.  The  assessment 
is  for  a  public  purpose.  It  pertains 
to  the  district  within  which  it  is  to 
be  collected,  and  it  is  apportioned  ac- 
cording to  a  uniform  rule.  When 
we  turn  to  the  constitution  for  light 
we  find  there  no  provision  which  re- 
lates to  local  assessments  except  the 
one  which  directs  the  legislature  to 
restrict  the  power  to  make  such  as- 
sessments when  exercised  by  mu- 
nicipal corporations.  The  over- 
whelming mass  of  authority  sup- 
ports the  view  that  the  proper  con- 
struction of  the  uniformity  article 
in  our  constitution  is  that  it  relates 
exclusively  to  general  taxation,  and 
has  no  reference  to  local  assess- 
ments." Citing  among  other  cases, 
Emery  v.  San  Francisco  Gas  Co.,  28 
Cal.  345;  Edgerton  v.  Town  of  Green 
Cove  Springs,  19  Fla.  140;  Hayden 
y.  City  of  Atlanta,  70  Ga.  817;  Good- 
rich v.  Winchester  &  D.  Turnpike 
Co.,  26  Ind.  119;  Hines  v.  City  of 
Leavenworth,  3  Kan.  186;  Wallace 


v  Shelton,  14  La.  Ann.  498;  Dorgan 
v.City  of  Boston,  94  Mass.  (12  Allen) 
223;  Motz  v.  City  of  Detroit,  18  Mich. 
495;  Williams  v.  Cammack,  27  Miss. 
209;  Egyptian  Levee  Co.  v.  Hardin, 
27  Mo.  495;  Cain  v.  Davie  County 
Com'rs,  86  N.  C.  8;  Hill  v.  Higdon, 
5  Ohio  St.  243;  King  v.  City  of  Port- 
land, 2  Or.  140;  Hansen  v.  Hammer, 
15  Wash.  315,  46  Pac.  332;  and  Rich- 
mond &  A.  R.  Co.  v.  City  of  Lynch- 
burg,  81  Va.  473. 

Com.  v.  Halstead  (Pa.)  7  Atl.  221; 
Germania  Sav.  Bank  v.  Town  of 
Darlington,  50  S.  C.  337.  Constru- 
ing act  of  1884  (18  Stat.  p.  923), 
and  holding  it  repugnant  to  consti- 
tution, art.  9,  §  1,  providing  for  uni- 
form and  equal  rate  of  assessment. 

f  Meriwether  v.  Muhlenburg  Coun- 
ty Ct.,  120  U.  S.  354,  7  Sup.  Ct.  563; 
Mayfield  Woolen  Mills  v.  City  of 
Mayfield,  111  Ky.  172,  61  S.  W.  43; 
People  v.  Common  Council  of  East 
Saginaw,  33  Mich.  164.  Under  a 
proper  delegation  of  power,  the  de- 
termination by  the  common  council 
of  a  city  of  what  taxes  should  be 
levied  for  city  purposes  will  not,  or- 
dinarily, be  interfered  with  by  the 
courts.  State  v.  City  of  Great  Falls, 
19  Mont.  518,  49  Pac.  15;  Hall  v. 
Selectmen  of  Somersworth,  39  N. 
H.  511;  State  v.  City  of  Cincinnati, 
19  Ohio,  178. 

8  Wells  v.  City  of  Savannah, 
107  Ga.  1,  32  S.  E.  669.  "Plain- 
tiffs in  error  contend  that  the 
contract  (of  exemption)  they  in- 
sist upon  is  evidenced  sufficiently 


§  300 


TAXATION. 


by  the  sovereign  to  a  subordinate  agent,  a  public  quasi  or  mu- 
nicipal corporation,  it  becoming  then  a  delegated  power,  the  rule 
universally  holds  that  the  exercise  of  the  power  cannot  in  turn 
be  delegated  to  some  officer  or  inferior  body.9  The  power  to  be 


by  the  conduct  of  the  municipal 
officers  at  the  time  that  the  sales 
by  the  city  took  place.  It  was 
shown  that  when  lots  were  put  up 
for  sale,  the  city  marshal  publicly 
announced  that  they  would  not  be 
subject  to  city  taxes;  that  this  was 
generally  understood  by  the  city  at 
large;  and  that  for  nearly  a  hundred 
years  after  these  sales  first  began 
the  municipal  authorities  failed  to 
tax  the  lands,  and  in  various  or- 
dinances afterwards  passed,  these 
ground-rent  lands  were  exempted. 
The  effect  of  these  ordinances  was 
merely  to  grant  an  exemption  from 
taxes  for  the  particular  years  to 
which  they  related.  Mere  non-user 
by  a  government  of  its  power  to  levy 
a  tax,  it  matters  not  for  how  long 
continued,  can  never  be  construed 
into  a  forfeiture  of  the  power." 

City  of  Lake  Charles  v.  Police 
Jury  Of  Calcasieu,  50  La.  Ann.  346, 
23  So.  376;  Mills  v.  Charleton,  29 
Wis.  400.  In  this  case  speaking  of 
the  taxing  power  the  court  said: 
"It  moves  constantly  forward  to  its 
object  until  that  is  accomplished, 
and  if  turned  aside  by  any  obstacles 
or  impediments,  may  return  again 
and  again  to  the  .  ame  tax  or  assess- 
ment until,  the  way  being  clear,  the 
tax  is  paid  or  the  assessment  col- 
lected. Such  is  the  force  of  this 
power,  or  of  the  sovereign  body 
which  exercises  it,  that  it  may  re- 
move all  obstacles  and  never  cease 
to  act  until  it  has  attained  the  ap- 
pointed end  for  which  it  was  dele- 
gated." 
« Johnston  v.  City  of  Macon,  62 


Ga.  645;  State  v.  City  of  Des  Moines, 
103  Iowa,  76,  72  N.  W.  639,  39  L.  R. 
A.  285;  Harward  v.  St.  Clair-M. 
Levee  &  Drainage  Co.,  51  111.  130. 
"The  power  of  taxation  is,  of  all  the 
powers  of  government,  the  one  most 
liable  to  abuse,  even  when  exercised 
by  the  direct  representatives  of  the 
people;  and  if  committed  to  persons 
who  may  exercise  it  over  others 
without  reference  to  their  consent, 
the  certainty  of  its  abuse  would  be 
simply  a  question  of  time;  no  per- 
son or  class  of  persons  can  be  safe- 
ly entrusted  with  irresponsible  pow- 
er over  the  property  of  others,  and 
such  a  power  is  essentially  despotic 
in  its  nature,  and  violative  of  all  just 
principles  of  government.  It  mat- 
ters not  that  as  in  the  present  in- 
stance, it  is  to  be  professedly  ex- 
ercised for  public  uses  by  expending 
for  the  public  benefit  the  tax  col- 
lected. If  it  be  a  tax  as  in  the 
present  instance,  to  which  the  per- 
sons who  are  to  pay  it  have  never 
given  their  consent,  and  imposed  by 
persons  acting  under  no  responsi- 
bility of  official  position,  and  cloth- 
ed with  no  authority  of  any  kind,  by 
those  whom  they  propose  to  tax,  it 
is,  to  the  extent  of  such  tax,  misgov- 
ernment  of  the  same  character  which 
our  forefathers  thought  just  cause 
of  revolution.  We  are  of  opinion 
that  we  do  no  violence  to  the  lan- 
guage of  the  clause  in  the  constitu- 
tion we  have  been  considering  by 
holding  that  it  was  designed  to  pre- 
vent such  ill  advised  legislation  as 
the  delegation  of  the  taxing  power 
to  any  person  or  persons  other  than. 


676 


PUBLIC  REVENUES. 


§  300 


legally  exercised  must  be  expressly  granted  and  further,10  it  is 
one  of  a  limited  and  restricted  nature.     Provisions  granting  it 


the  'corporate  authorities'  of  the  mu- 
nicipality or  district  to  be  taxed. 
These  authorities  are  elected  by  the 
people  to  be  taxed  or  appointed  in 
some  mode  to  which  the  people  have 
given  their  assent,  and  to  them  alone 
can  this  power  be  safely  delegated." 

Councilmen  of  Frankfort  v.  De- 
posit Bank,  22  Ky.  L.  R.  1384,  60 
S.  W.  19.  The  power  to  tax  cannot 
be  lost  through  an  agreement  to 
abide  by  the  result  of  another  suit. 
State  v.  McVea,  26  La.  Ann.  151. 
The  power  exists  in  the  legislature 
to  delegate  to  subordinate  munici- 
pal corporations  the  power  to  levy 
taxes  for  local  uses. 

Bergen  v.  Clarkson,  6  N.  J.  Law  ^1 
Halst.)  352;  Hance  v.  Sickles,  24  N. 
J.  Law  (4  Zab.)  125;  Durach's  Ap- 
peal, 62  Pa.  491.  A  constitutional 
right  exists  in  the  legislature  to 
delegate  the  power  of  taxation  to 
municipal  corporations  to  be  exer- 
cised within  their  jurisdiction. 

Waterhouse  v.  Cleveland  Public 
School  Board,  68  Tenn.  (9  Baxt.) 
398.  The  delegation  of  the  power  to 
tax  must  come,  however,  within  the 
provision  of  the  constitution. 
Cooley,  Taxation,  p.  61.  "It  is  a 
general  rule  of  constitutional  law 
that  a  sovereign  power  conferred  by 
the  people  upon  any  one  branch  or 
department  of  the  government  is  not 
to  be  delegated  by  that  branch  or 
department  to  any  other.  This  is  a 
principle  which  pervades  our  whole 
political  system,  and,  when  properly 
understood,  admits  of  no  exception. 
And  it  is  applicable  with  peculiar 
force  to  the  case  of  taxation.  The 
power  to  tax  is  a  legislative  power. 
The  people  have  created  a  legislative 


department  for  the  exercise  of  the 
legislative  power;  and  within  that 
power  lies  the  authority  to  prescribe 
the  rules  of  taxation,  and  to  regu- 
late the  manner  in  which  those  rules 
shall  be  given  effect.  The  people 
have  not  authorized  this  department 
to  relieve  itself  of  the  responsibility 
by  a  substitution  of  other  agencies. 
But  it  is  nevSr  assumed  by  the  peo- 
ple that  the  legislature  can  take  such 
supervision  of  all  the  infinite  variety 
of  interests  in  the  state,  and  of  all 
local  as  well  as  general  affairs,  as 
to  be  able  to  determine  in  every 
instance  precisely  what  is  needed  in 
matters  of  taxation,  and  precisely 
what  purposes  shall  at  any  time,  un- 
der the  particular  circumstances, 
be  provided  for.  There  is  a  differ- 
ence between  making  the  law  and 
giving  effect  to  the  law;  the  one  is 
legislation  and  the  other  adminis- 
tration." 

10  United  States  v.  Town  of  Cicero, 
41  Fed.  83.  The  power  given  to  con- 
struct public  buildings  and  provide 
for  the  payment  of  the  same  it  waa 
held  in  this  case  did  not  necessarily 
carry  with  it  an  implied  power  to 
levy  taxes  sufficient  to  meet  the  obli- 
gations when  due. 

United  States  v.  City  of  Burling- 
ton, 2  Am.  Law  Reg.  (N.  S.)  394; 
Vance  v.  City  of  Little  Rock,  30 
Ark.  435;  Livingston  v.  City  Council 
of  Albany,  41  Ga.  21;  Clark  v.  City 
of  Davenport,  14  Iowa,  494;  Daily  v. 
Swope,  47  Miss.  367.  Subordinate 
public  corporations  possess  an  in- 
herent power  of  taxation.  People  v. 
Ingersoll,  58  N.  Y.  1.  The  power 
when  granted  is  not  exercised  by  the 
corporation  as  agent  of  the  state. 


§  301 


TAXATION. 


677 


cannot  be  extended  or  enlarged  by  implication  beyond  the  clear 
import  of  the  language  used  in  the  granting  clause.11 

§  301.    Municipal  power  to  tax 

The  use  of  the  word  "municipal"  in  the  title  of  this  section  is 
intended  to  include  not  only  municipal  corporations  proper,  but 
all  those  public  quasi  corporations  organized  subsidiary  to  the 
sovereign.  The  term  here  is  a  comprehensive  one  and  includes 
all  subordinate  grades  of  public  corporations.  The  granted  power 
in  its  nature  and  extent  generally  speaking  is  limited  only  by  the 


In  re  Second  Ave.  M.  E.  Church,'  66 
N.  Y.  395.  Municipal  corporations 
have  no  inherent  power  to  levy  tax- 
es. Commissioners  of  Asheville  v. 
Means,  29  N.  C.  (7  Ired.)  406;  Pul- 
len  v.  Wake  County  Com'rs,  66  N. 
C.  361;  Walker  v.  Edmonds,  197  Pa. 
645,  47  Atl.  867;  State  v.  Town  of 
Maysville,  12  S.  C.  76. 

11  Baldwin  v.  City  Council  of 
Montgomery,  53  Ala.  437;  Metropoli- 
tan Life  Ins.  Co.  v.  Darenkamp,  23 
Ky.  L.  R.  2249,  66  S.  W.  1125.  Acts 
or  ordinances  levying  taxes  should 
be  construed  most  strictly  in  favor 
of  the  taxpayer  and  against  the  gov- 
ernment. 

City  of  Baltimore  v.  State,  15  Md. 
376;  Howell  v.  Village  of  Cassopolis, 
35  Mich.  471.  The  grant  of  a  power 
to  tax  should  be  construed  in  sub- 
ordination to  the  general  tax  laws  of 
the  state  unless  the  intent  to  create 
an  exception  is  clearly  expressed. 

Smith  v.  City  of  Vicksburg,  54 
Miss.  615;  City  of  St.  Louis  v.  Laugh- 
lin,  49  Mo.  559;  Directors  of  Alfalfa 
Irr.  Dist.  v.  Collins,  46  Neb.  411; 
Dean  v.  Charlton,  27  Wis.  522.  A 
statute  authorizing  a  municipal  cor- 
poration to  reassess  and  relevy  spe- 
cial taxes  void  because  of  irregulari- 
ties in  the  original  proceedings  must 


be  strictly  construed.  The  court 
say:  "In  the  consideration  of  these 
statutes,  it  becomes  important  to 
settle  the  rule  by  which  they  are  to 
be  construed.  It  must  be  remem- 
bered that  they  are  in  derogation  of 
the  rights  of  the  citizen  who  may 
be  affected  by  them,  in  that  they 
compel  him  to  bear  burdens  which 
had  been  unlawfully  imposed,  or  at- 
tempted to  be  imposed  upon  him 
and  which  he  would  not  be  com- 
pelled to  bear  but  for  those  laws. 
It  is  probably  too  late  to  question 
the  power  of  the  legislature  to  pass 
retroactive  statutes  of  this  charac- 
ter; but  to  do  so  is  a  very  great 
stretch  of  legislative  power,  frequent- 
ly of  doubtful  expediency,  the  ex- 
ercise of  which  is  liable  to  do  great 
injustice  to  individuals.  It  seems 
obvious  that  such  statutes  should  be 
strictly  construed.  A  due  regard  for 
individual  rights  and  the  plainest 
principles  of  justice,  requires  that 
they  should  have  only  the  effect 
which  the  legislature  clearly  intend- 
ed that  they  should  have;  and  that 
in  construing  them,  all  reasonable 
doubts  as  to  such  intent  should  be 
resolved  in  favor  of  the  citizen." 
Foster  v.  City  of  Kenosha,  12  Wis. 
616. 


678 


PUBLIC  REVENUES. 


§  302 


authority  conferring  its  exercise.  The  municipality  where  the 
general  power  is  granted  can  tax  all  subjects  within  its  jurisdic- 
tion not  exempt  by  the  laws  of  the  state  and  subject  only  to  the 
constitutional  -limitations  upon  the  exercise  of  the  power.12  In 
construing  the  power  as  granted,  it  is  considered  a  continuing 
one  and  as  operating  prospectively,  never  retrospectively.13  The 
right  cannot  be  granted  by  a  state  or  the  courts  to  tax  when  the 
state  itself  does  not  possess  either  the  original  power  to  tax  in 
the  manner  attempted,  to  be  granted  or  the  right  itself.14 

§  302.    The  authority. 

The  authority  or  power  to  tax  being  a  governmental  power 


i- Vincent  v.  Hinsdale  County 
Com'rs,  12  Colo.  App.  40;  Pratt  v. 
City  of  Jacksonville,  36  Fla.  550. 
The  delegation  to  a  municipality  of 
the  power  to  fix  the  rate  and  pro- 
vide regulations  for  the  valuation 
of  property  does  not  comply  with 
constitution  of  Florida  art.  9,  §  1, 
which  declares  that  the  legislature 
"shall  provide  for  a  uniform  and 
equal  rate  of  taxation  and  shall  pre- 
scribe such  regulations  as  shall  se- 
cure a  just  valuation  of  all  proper- 
ty." 

City  of  Macon  v.  Central  R.  & 
Banking  Co.,  50  Ga.  620;  Spann  v. 
Webster  County  Com'rs,  64  Ga.  498. 
It  the  constitution  provides  for  the 
assent  of  voters,  a  tax  levied  with- 
out this  is  invalid.  Com.  v.  Milton, 
51  Ky.  (12  B.  Mon.)  212;  Wingate 
v.  Sluder,  51  N.  C.  (6  Jones)  552; 
McCless  v.  Meekins,  117  N.  C.  34; 
State  v.  Haywood  County  Com'rs, 
122  N.  C.  661;  Smathers  v.  Madison 
County  Com'rs,  125  N.  C.  480;  State 
v.  Irvin,  126  N.  C.  989.  The  cases 
of  City  of  Columbia  v.  Beasly,  20 
Tenn.  (1  Humph.)  232,  34  Am.  Dec. 
646,  and  Hope  v.  Deaderick,  27 
Tenn.  (8  Humph.)  1,  47  Am.  Dec. 


597,  sustain  the  general  proposi- 
tion that  although  the  authority  may 
be  granted  it  must  be  exercised  in 
accordance  with  constitutional  pro- 
visions. Presidio  County  v.  City 
Nat.  Bank,  20  Tex.  Civ.  App.  511; 
Gilkeson  v.  Frederick  County,  13 
Grat.  (Va.)  577. 

is  Wayne  v.  City  of  Savannah,  56 
Ga.  448.  The  rule  also  operates  in 
favor  of  the  municipality.  Property 
holders  who  have  paid  illegal  taxes 
either  voluntarily  or  under  coercion 
in  former  years  have  no  right  to  set 
off  such  payment  against  present 
taxes.  Ohio  &  M.  R.  Co.  v.  People, 
123  111.  648,  15  N.  E.  276.  Third 
Municipality  v.  Ursuline  Nuns,  2  La. 
Ann.  611;  Municipality  No.  3  v. 
Michoud,  6  La.  Ann.  605. 

i*  Henderson  Bridge  Co.  v.  City  of 
Henderson,  173  U.  S.  592;  Vance  v. 
City  of  Little  Rock,  30  Ark.  435. 
Courts  of  the  United  States  can  im- 
part no  taxing  power  to  a  municipal 
corporation.  Kyle  v.  Malin,  8  Ind. 
34;  O'Donnell  v.  Bailey,  24  Miss. 
386;  Bank  of  Chester  v.  Town  Coun- 
cil of  Chester,  10  Rich.  Law  (S.  C.) 
104;  City  of  Nashville  v.  Thomas, 
45  Tenn.  (5  Cold.)  600. 


§  302 


TAXATION. 


679 


possessed  only  in  the  fullest  extent  by  t.V?  twvereign,  to  be  exer- 
cised by  a  subordinate  agent,  must  be  e^piessly  given.  A  mu- 
nicipal corporation  in  its  broad  sense  ha&  no  power  to  levy  taxet 
or  impose  license  fees,  a  species  of  taxation,  when  not  expressly 
authorized  so  to  do  either  by  its  charter  or  by  some  general  pro- 
vision of  the  law.15  Where  the  authority  to  lax  does  not  exist, 
no  court  has  power  to  issue  process  compelling  its  exercise.1' 
Ordinarily,  the  legislative  branch  of  government  has  the  exclu- 
sive power  of  taxation  and  its  delegation  or  repeal  must  proceed 
from  this  branch.17  The  legislature  in  delegating  it  should  pro- 
vide for  its  exercise  in  an  equal  and  uniform  manner.18  Th« 


is  Sanders  v.  Commissioners  of 
Butler,  30  Ga.  679;  City  of  Inde- 
pendence v.  Moore,  32  Mo.  392. 

IB  Vance  v.  City  of  Little  Rock,  30 
Ark.  435;  United  States  v.  City  of 
Burlington,  2  Am.  Law  Reg.  (N.  S.) 
394. 

IT  North  Missouri  R.  Co.  v.  Ma- 
guire,  87  U.  S.  (20  Wall.)  46;  Meri- 
wether  v.  Garrett,  102  U.  S.  472; 
Hagar  v.  Yolo  County  Sup'rs,  47 
Cal.  222;  Coite  v.  Society  for  Sav- 
ings, 32  Conn.  173;  Extension  of 
Hancock  St.,  18  Pa.  26;  Bank  of 
Pennsylvania  v.  Com.,  19  Pa.  144; 
Catlin  v.  Hull,  21  Vt.  152. 

City  of  Richmond  v.  Richmond  & 
D.  R.  Co.,  21  Grat.  (Va.)  604.  The 
power  of  taxation  as  conferred  upon 
a  municipal  corporation  is  merely  a 
delegated  trust.  It  is  not  a  con- 
tract between  the  state  and  such 
subordinate  agency  to  be  considered 
as  conferring  upon  the  latter  an  ab- 
solute power  of  taxation  beyond  the 
control  of  the  legislature.  The 
grant  is,  at  all  times,  subject  to  re- 
peal or  modification  by  the  sover- 
eign. 

is  United  States  v.  City  of  New 
Orleans,  98  U.  S.  381.  "The  posi- 
tion that  the  power  of  taxation  be- 
longs exclusively  to  the  legislative 


branch  of  the  government  no  on* 
will  controvert.  Under  our  system 
it  is  lodged  nowhere  else.  But  it  i» 
a  power  that  may  be  delegated  by 
the  legislature  to  municipal  corpora- 
tions, which  are  merely  instrumen- 
talities of  the  state  for  the  better 
administration  of  the  government  in. 
matters  of  local  concern.  When 
such  a  corporation  is  created,  the 
power  of  taxation  is  vested  in  it  as 
an  essential  attribute,  for  all  the 
purposes  of  its  existence,  unless  It* 
exercise  be  in  express  terms  pro- 
hibited. For  the  accomplishment  of 
those  purposes,  its  authorities,  how- 
ever limited  the  corporation,  mus*. 
have  the  power  to  raise  money  an^ 
control  its  expenditure.  In  a  city 
even  of  small  extent,  they  have  to 
provide  for  the  preservation  of  peace 
good  order  and  health,  and  the  exe- 
cution of  such  measures  as  conduce 
to  the  general  good  of  its  citizens; 
such  as  the  opening  and  repairing 
of  streets,  the  construction  of  side- 
walks, sewers  and  drains,  the  intro- 
duction of  water,  and  the  establish- 
ment of  a  fire  and  police  department. 
In  a  city  like  New  Orleans,  situated 
on  a  navigable  stream,  or  on  a  har- 
bor of  a  lake  or  sea,  their  powers 
are  usually  enlarged  so  as  to  em- 


680 


PUBLIC  REVENUES. 


§   302 


power  of  taxation  in  a  municipal  corporation,  as  a  rule,  is  not 
general  in  its  nature.  Municipal  corporations  or  subordinate  cor- 
porations are  local  agencies  of  the  government  within  a  definite 
locality.  The  municipal  power  to  tax,  therefore,  is  restricted  to 
community  or  local  purposes.19  General  taxes  cannot  be  levied 


brace  the  building  of  wharves  and 
docks  or  levees  for  the  benefit  of 
commerce,  and  they  may  extend  also 
to  the  construction  of  roads  leading 
to  it  or  the  contributing  of  aid  to- 
wards their  construction.  The  num- 
ber and  variety  of  works  which 
may  be  authorized,  having  a  general 
regard  to  the  welfare  of  the  city  or 
of  its  people,  are  mere  matters  of 
legislative  discretion.  All  of  them 
require  for  their  execution  consider- 
able expenditures  of  money.  Their 
authorization  without  providing  the 
means  for  such  expenditures  would 
be  an  idle  and  futile  proceeding. 
Their  authorization,  therefore,  im- 
plies and  carries  with  it  the  power 
to  adopt  the  ordinary  means  em- 
ployed by  such  bodies  to  raise  funds 
for  their  execution,  unless  such 
funds  are  otherwise  provided.  And 
the  ordinary  means  in  such  cases  is 
taxation.  A  municipality  without 
the  power  of  taxation  would  be  a 
body  without  life,  incapable  of  act- 
ing and  serving  no  useful  purpose." 

City  of  Mobile  v.  Dargan,  45  Ala. 
310;  Security  Sav.  Bank  &  Trust  Co. 
r.  Hinton,  97  Cal.  214,  32  Pac.  3.  A 
city,  the  organization  of  which  is 
authorized  by  the  legislature,  may 
provide  in  its  charter  for  local  taxa- 
tion. The  court  holding  this  power 
essential  to  municipal  existence. 

Wells  v.  City  of  Savannah,  107  Ga. 
1;  Sherlock  v.  Village  of  Winnetka, 
68  111.  530;  Harney  v.  Indianapolis, 
C.  &  D.  R.  Co.,  32  Ind.  244;  Clark  v. 
City  of  Davenport,  14  Iowa,  494; 


Byrne  v.  City  of  Covington,  15  Ky. 
L.  R.  33,  21  S.  W.  1050;  City  of 
Alexandria  v.  White,  46  La.  Ann. 
449,  15  So.  15;  Chicago,  St.  L.  &  N. 
O.  R.  Co.  v.  Town  of  Kentwood,  49 
La.  Ann.  931;  Daily  v.  Swope,  47 
Miss.  367;  City  of  York  v.  C.,  B.  & 
Q.  R.  Co.,  76  N.  W.  1065. 

Chicago,  B.  &  Q.  R.  Co.  v.  Klein, 
52  Neb.  258,  71  N.  W.  1069.  Under 
a  constitutional  provision  granting 
to  all  "municipal  corporations"  the 
power  to  assess  and  collect  taxes,  a 
township  held  a  municipal  corpora- 
tion. Gest  v.  City  of  Cincinnati,  26 
Ohio  St.  275;  State  v.  Kelly,  45  S.  C. 
457,  23  S.  E.  281.  The  adoption  of 
a  constitutional  provision  may,  how- 
ever, repeal  existing  legislative  au- 
thority for  the  levy  and  collection  of 
taxes.  Werner  v.  City  of  Galveston, 
72  Tex.  22,  7  S.  W.  726,  12  S.  W.  159; 
City  of  El  Paso  v.  Conklin,  91  Tex. 
537,  44  S.  W.  988;  Kerr  v.  Woolley, 
3  Utah,  456. 

is  United  States  v.  City  of  New 
Orleans,  98  U.  S.  381;  Southern  R. 
Co.  v.  St.  Glair  County,  124  Ala.  491, 
27  So.  23;  State  v.  City  of  Daven- 
port, 12  Iowa,  335.  The  duty  to  levy 
a  special  tax,  its  proceeds  to  be  ap- 
propriated for  a  special  purpose,  is 
not  performed  by  a  levy  of  a  general 
tax.  Midland  Elevator  Co.  v.  Stew- 
art, 50  Kan.  378,  construing  Kansas 
laws  of  1887,  c.  134. 

McDonald  v.  City  of  Louisville, 
113  Ky.  425,  68  S.  W.  413.  The 
grant  of  authority  to  subordinate 
public  corporations  to  impose  taxes 


§  302 


TAXATION. 


681 


by  one  for  the  support,  either  of  the  nation,  the  state,  or  communi- 
ties of  an  equal  or  inferior  grade  to  itself.20  On  the  contrary, 
it  is  quite  generally  held  that  for  purely  local  or  municipal  uses, 
the  legislature  cannot  require  a  subordinate  corporation  to  levy 
taxes.  This  principle  has  been  applied  to  acts  attempting  to 
compel  municipal  authorities  to  issue  bonds  for  the  cost  of  ac- 
quiring and  maintaining  public  parks.21 


for  their  own  special  local  purposes 
deprives  the  general  assembly  of 
that  power. 

City  of  New  Orleans  v.  Turpin,  13 
La.  Ann.  56;  Lorie  v.  Hitchcock,  26 
La.  Ann.  154;  Merrick  v.  Inhabitants 
of  Amherst,  94  Mass.  (12  Allen) 
500;  Wingate  v.  Sluder,  51  N.  C.  (6 
Jones)  552;  Durach's  Appeal,  62  Pa. 
491;  Hammett  v.  City  of  Philadel- 
phia, 65  Pa.  146;  Newman  v.  Justices 
of  Scott  County,  37  Tenn.  (5  Sneed) 
€95;  Hope  v.  Deaderick,  27  Tenn. 
(8  Humph.)  1.  Such  an  act  not  un- 
constitutional. Ex  parte  Schmidt,  2 
Tex.  App.  196.  If  a  municipality 
proceed  within  its  lawful  power,  the 
courts  are  not  authorized  to  inter- 
fere. Gilkeson  v.  Justices  of  Fred- 
erick, 13  Grat.  (Va.)  577;  Foster  T. 
City  of  Kenosha,  12  Wis.  616. 

20  state  T.  Nelson,  105  Wis.  111. 

21  People  v.  City  of  Chicago,  51  111. 
17.     "While  it  is  conceded  that  mu- 
nicipal    corporations,     which     exist 
only  for  public  purposes,  are  subject 
at  all   times  to  the  control   of   the 
legislature  creating  them,  and  have, 
in  their  franchises,  no  vested  right, 
and  whose  powers  and  privileges  the 
creating  power  may  alter,  modify  or 
abolish  at  pleasure,  as  they  are  but 
parts  of  the  machinery  employed  to 
carry   on   the   affairs   of   the    state, 
over  which,  and  their  rights  and  ef- 
fects, the  state  may  exercise  a  gen- 
eral superintendence  and  control,  we 
are  not  of  opinion  that  power,  such 


as  it  is,  can  be  so  used  as  to  compel 
any  one  of  our  many  cities  to  issue 
its  bonds  against  its  will,  to  erect  a 
park  or  for  any  other  improvement 
— to  force  it  to  create  a  debt  of  mil- 
lions,— in  effect,  to  compel  every 
property  owner  in  the  city  to  give 
his  bond  to  pay  a  debt  thus  forced 
upon  the  city.  It  will  hardly  be 
contended  that  the  legislature  can 
compel  a  holder  of  property  in  Chi- 
cago to  execute  his  individual  bond 
as  security  for  the  payment  of  a  debt 
so  ordered  to  be  contracted.  A  city 
is  made  up  of  individuals  owning 
the  property  within  its  limits,  the 
lots  and  blocks  which  compose  it  and 
the  structures  which  adorn  them. 
What  would  be  the  universal  judg- 
ment should  the  legislature,  sua 
sponte,  project  magnificent  and  cost- 
ly structures  within  one  of  our  cities 
— triumphal  arches,  splendid  col- 
ums,  and  perpetual  fountains  and  re- 
quire in  the  act  creating  them,  that 
every  owner  of  property  within  the 
city  limits  should  give  his  indi- 
vidual obligation  for  his  proportion 
of  the  cost  and  impose  such  costs  as 
a  lien  upon  his  property  forever? 
What  would  be  the  public  judgment 
of  such  an  act  and  wherein  would  it 
differ  from  the  act  under  considera- 
tion?" 

Lovingston  v.  Wider,  53  111.  302; 
People  v.  Common  Council  of  De- 
troit, 28  Mich.  228;  "Blades  v.  Water 
Com'rs  of  Detroit,  122  Mich.  366,  81 


682 


PUBLIC  REVENUES. 


§  303a 


§  303.    Limitations  upon  the  power. 

In  addition  to  the  general  limitations  upon  the  power  to  tax, 
as  suggested  in  the  preceding  section,  there  will  be  found  special 
limitations  based  upon  specific  grounds  either  relating  to  purpose 
or  amount  raised. 

(a)  Limitations  as  to  rate  or  amount.  In  this  country  it  is  the 
aim  of  government  as  well  as  the  desire  of  the  individual  that  tax- 
ation should  not  result  in  a  confiscation  of  private  property.  To 
secure  this  end,  the  constitutions  'or  general  statutes  of  the  differ- 
ent states  limit  the  amount  of  taxation  which  can  be  levied  either 
by  the  government  itself  or  any  of  its  subordinate  agencies  upon 
property  within  its  jurisdiction  for  a  specific  period  of  time.22 
This  limitation  may  be  designated  by  a  rate  per-cent23  or  it  may 


N.  W.  271.  The  court  in  its  opinion 
in  this  case  in  part  said  that  it  was 
not  within  the  power  of  the  legisla- 
ture to  compel  taxation  of  city 
property  for  local  purposes  without 
the  consent  of  the  electors  of  the 
city,  therefore,  an  act  was  unconsti- 
tutional and  void  providing  for  the 
operation  and  maintenance  of  city 
waterworks  without  a  submission  of 
the  question  to  the  voters. 

22  City  of  Cleveland  v.  United 
States,  111  Fed.  341.  The  levy  in 
any  one  year  cannot  exceed  the 
amount  fixed  by  law  although  the 
levies  for  previous  years  have  not 
reached  such  limit.  The  average 
for  the  series  of  years  not  exceeding 
the  rate  fixed  by  law. 

Hays  v.  Hogan,  5  Cal.  241;  Com- 
missioners of  Roads  &  Revenues  v. 
Porter  Mfg.  Co.  (Ga.)  30  S.  E.  547. 
The  constitution  of  Georgia,  art.  7,  § 
7,  par.  1,  limiting  the  power  of  pub- 
lic corporations  to  incur  debts,  is 
held  not  to  act  as  a  limitation  upon 
their  taxing  power. 

Binkert  v.  Jansen,  94  111.  283;  Peo- 
ple v.  Peoria,  D?  &  E.  R.  Co.,  116  III. 
410;  City  of  Leavenworth  v.  Norton, 


1  Kan.  432;  Clark  v.  City  of  Daven- 
port, 14  Iowa,  494;  Burnes  v.  City 
of  Atchison,  2  Kan.  454;  Columbus 
Water-Works  Co.  v.  City  of  Colum- 
bus, 48  Kan.  378;  Stewart  v.  Kansas 
Town  Co.,  50  Kan.  553;  Wattles  v. 
City  of  Lapeer,  40  Mich.  624;  Schnee- 
wind  v.  City  of  Miles,  103  Mich.  301; 
Benoist  v.  City  of  St.  Louis,  19  Mo. 
179;  State  v.  Village  of  Perrysburg, 
14  Ohio  St.  472;  State  v.  Hum- 
phreys, 25  Ohio  St.  520;  Cummings 
v.  Fitch,  40  Ohio  St.  56;  State  v. 
Town  Council  of  Beaufort,  39  S.  C. 
5;  In  re  Limitation  of  Taxes,  3  S. 
D.  456,  54  N.  W.  417;  Bassett  v.  City 
of  El  Paso,  88  Tex.  168. 

Foster  v.  City  of  Kenosha,  12  Wis. 
616.  Where  there  is  no  limitation 
expressed  in  the  legal  organization 
of  a  city  upon  its  powers  of  taxation, 
the  general  restriction  applies  that 
it  is  limited  in  this  respect  by  the 
object  and  law  of  its  creation  and 
can  only  exercise  it  for  legitimate 
municipal  uses. 

23  United  States  v.  Town  of  Cicero, 
41  Fed.  83;  State  v.  Southern  R.  Co., 
115  Ala.  250,  22  So.  589;  City  of 
Santa  Barbara  v.  Eldred,  95  Cal. 


§  303a 


TAXATION. 


683 


be  fixed  by  specifying  the  gross  amount  which  can  be  raised.2* 
A  tax  in  excess  of  the  limitation  provided  by  law  is  not  necessarily 


378,  30  Pac.  562;  Wabash  R.  Co.  v. 
People,  147  111.  196;  People  v.  Lake 
Erie  &  W.  R.  Co.,  167  111.  283;  Town 
of  Cicero  v.  McCarthy,  172  111.  279. 
A  city  charter  without  such  limita- 
tion is  not  affected  by  a  law  subse- 
quently passed. 

Chicago  &  A.  R.  Co.  v.  People,  177 

111.  91;  Cleveland,  C.,  C.  ft  St.  L.  R. 
Co.  v.  Randle,  183  111.  364,  construing 
Litchfield  city  charter,  art.  9,  as  af- 
fected  by   general    school   law,    art. 
8  §  1.     People  v.  Knopf,  183  111.  410; 
Otis  v.  People,  196  111.  542;   Colum- 
bus Water-Works  Co.  v.  City  of  Co- 
lumbus, 48  Kan.  99;    Chicago,  R.  I. 
&  P.  R.  Co.  v.  Stanfield,  7  Kan.  App. 
274,  53  Pac.  772;  Lafitte  v.  Morgans, 
29  La.  Ann.  1;  Lamar  Water  &  Elec. 
Light  Co.   v.  City   of  Lamar    (Mo.) 
26  S.  W.  1025;   City  of  Stanberry  v. 
Jordan,  145  Mo.  371,  46  S.  W.  1093; 
State  v.  City  of  Great  Falls,  19  Mont. 
518,  49  Pac.  15;  Mohmking  v.  Bowes, 
65  N.  J.  Law,  469,  47  Atl.  507,  con- 
struing  New   Jersey    Laws   1866,   p. 
1047,  §  4,  as  affected  by  Pub.  Laws 
1871,  p.  1417;  State  v.  Atkinson,  107 
N.  C.  317. 

Cummings  v.  Fitch,  40  Ohio  St. 
56.  If  the  rate  as  limited  by  law  is 
exceeded,  the  excess  alone  is  invalid. 
State  v.  City  of  Toledo,  48  Ohio  St. 

112,  11  L.  R.  A.  729;  Gadsby  v.  City 
of  Portland,  38  Or.  135,  63  Pac.  14; 
City  of  Williamsport   v.   Brown,   84 
Pa.  438;   Mowry  v.  Mowry,  20  R.  I. 
74,  37  Atl.  306;   In  re  Limitation  of 
Taxation,  3  S.  D.  456,  54  N.  W.  417. 

Henderson  v.  Hughes  County,  13 
S.  D.  576,  83  N.  W.  682.  Construing 
Constitution  of  South  Dakota,  art. 
10,  §  1,  restricting  the  power  of  mu- 


nicipal corporations  to  levy  taxes 
and  assessments.  Bright  v.  Hallo- 
man,  75  Tenn.  (7  Lea)  309.  If  a 
rate  is  levied  in  excess  of  rhat 
authorized  by  law,  the  illegality  goes 
only  to  the  excess,  not  to  the  whole 
tax. 

Muller  v.  City  of  Denison,  1  Tex. 
Civ.  App.  293,  21  S.  W.  391;  Jeffer- 
son Iron  Co.  v.  Hart,  18  Tex.  Civ. 
App.  525,  45  S.  W.  321.  A  special 
fund  for  which  the  full  rate  author- 
ized by  law  had  already  been  levied 
cannot  be  increased  by  the  levy  of 
taxes  ostensibly  for  another  purpose 
but  for  transfer  to  such  fund.  Luf- 
kin  v.  City  of  Galveston,  63  Tex. 
437;  Somo  Lumber  Co.  v.  Lincoln 
County,  110  Wis.  286,  85" N.  W.  1023, 
Construing  Wisconsin  Rev.  St.  1898, 
§  925,  sirb-section  142a,  prohibiting 
cities  from  levying  a  tax  in  excess 
of  3  per  cent  of  the  assessed  valua- 
tion of  real  and  personal  property. 

24  Second  Municipality  v.  Orleans 
Cotton  Jfress  Co.,  6  Rob.  (La.)  411; 
Wattles  v.  City  of  Lapeer,  40  Mich. 
624;  Taggart  v.  Board  of  Auditors, 
73  Mich.  53,  40  N.  W.  852;  Newaygo 
Mfg.  Co.  v.  Echtinaw,  81  Mich.  416, 
45  N.  W.  1010;  People  v.  City  of 
Syracuse,  128  N.  Y.  632;  Haughton 
v.  Jones  County  Com'rs,  70  N.  C. 
466;  Edwards  v.  Wilkes  County 
Com'rs,  70  N.  C.  571.  The  two  last 
cases  hold  that  a  constitutional  pro- 
vision limiting  the  levy  of  taxes  to 
a  certain  amount  does  not  apply  to 
taxes  levied  to  pay  debts  against 
the  corporation  existing  before  the 
adoption  of  such  constitutional  pro- 
vision. 


684 


PUBLIC  REVENUES. 


§  303b 


void  as  a  whole  but  will  be  sustained  as  to  the  portion  within  the 
limit  if  the  excess  can  be  separated  from  it.25 

(b)  Limitations  as  to  purpose.  To  maintain  a  governmental 
organization  of  any  subordinate  agency,  certain  well  recognized 
expenditures  are  deemed  necessary.  The  limitation  of  rate  or 
amount  of  tax  to  be  raised  in  any  one  year  may  apply  not  only  to 
such  regular  disbursements26  but  also  to  what  may  be  termed 


25  Denver  City  R.  Co.  v.  City  of 
Denver,  21  Colo.  350,  29  L.  R.  A.  608; 
O'Kane  v.  Treat,  25  111.  557;  Briscoe 
v.  Allison,  43  111.  291;  Allen  v. 
Peoria  &  B.  V.  Co.,  44  111.  85;  Peo- 
ple v.  Nichols,  49  111.  517;  Mix  v. 
People,  72  111.  242;  Whaley  v.  Com., 
23  Ky.  L.  R.  1292,  61  S.  W.  35.  "It 
is  argued  for  the  taxpayers  that  as 
the  constitution  prohibits  the  levy 
of  any  tax  rate  in  one  year,  in  a 
county  of  which  Nicholas  is  of  a 
class,  of  more  than  fifty  cents  on  a 
hundred  dollars,  the  levy  of  twenty- 
five  cents,  when  thirty-four  cents  had 
been  previously  levied,  was  void; 
that  it  being  one  sum  and  not  sepa- 
rable, the  whole  of  that  levy  was 
void.  The  general  rule  on  this  sub- 
ject is,  if  the  illegal  tax  or  an  illegal 
item  embraced  in  the  levy  be  sepa- 
rable from  the  remainder,  that  which 
is  above  the  legal  limit  will  be  void, 
while  that  within  will  be  upheld. 
Many  eminent  authorities  may  be 
cited  to  support  this  doctrine. 
*  *  *  Nicholas  County  having 
adopted  the  free-turnpike  system,  its 
fiscal  court  was  authorized  to  levy 
as  much  as  twenty-five  cents  on  the 
one  hundred  dollars  for  road  and 
bridge  purposes  each  year  provided 
the  total  levy  for  the  year  did  not 
exceed  fifty  cents  on  the  $100.  That 
court  was  the  sole  judge  of  the  neces- 
sity of  the  levy  and  of  the  manner 
In  which  it  should  be  applied  upon 
its  roads.  If  it  went  beyond  the 


constitutional  restriction,  only  that 
part  that  is  without  the  court's 
power  is  contrary  to  the  law. 
*  *  *  It  requires  but  a  simple 
calculation  to  make  the  separation 
with  precision.  In  such  cases  this 
court  has  uniformly  held  that  the 
tax  levied  within  the  limit  of  the 
power  will  be  sustained  when  it  can 
be  separated  from  the  portion  that 
is  illegal."  Levi  v.  City  of  Louis- 
ville, 97  Ky.  394,  28  L.  R.  A.  480; 
Hecock  v.  Van  Dusen,  8  Mich.  359, 
45  N.  W.  343;  State  v.  Mississippi 
Bridge  Co.,  134  Mo.  321;  Benson  v. 
Inhabitants  of  Bloomfield,  58  N.  J. 
Law,  491;  Rellstab  v.  Borough  of  Bel- 
mar,  58  N.  J.  Law,  489;  Cummings 
v.  Fitch,  40  Ohio  St.  56;  State  v. 
Kelly,  28  Or.  225;  State  v.  Kelly,  45 
S.  C.  457;  Bright  v.  Halloman,  75 
Tenn.  (7  Lea)  309;  Mowry  v.  Mowry, 
20  R.  I.  74,  37  Atl.  306;  City  of  San 
Antonio  v.  Raley  (Tex.  Civ.  App.) 
32  S.  W.  180. 

26  Drake  v.  Phillips,  40  111.  388. 
The  power  to  levy  taxes  "for  any 
other  purpose  they  may  deem  neces- 
sary" carries  with  it  the  authority 
only  to  levy  taxes  for  purposes  of 
the  same  general  scope  and  charac- 
ter as  those  before  mentioned  in  the 
same  law.  Otis  v.  People,  196  111. 
542.  The  appropriations  and  levy 
should  specify  the  purpose  for  which 
the  moneys  raised  are  to  be  used. 
Mayfield  Woolen  Mills  v.  City  of 
Mayfield,  22  Ky.  L.  R.  1676,  61  S. 


§   304  TAXATION.  685 

special  purposes  or  uses  bf  public  money  which  are  recognized 
as  proper  but  which  are  not  regularly  made  from  year  to  year. 
The  erection  of  new  buildings  or  construction  of  works  of  public 
improvement  permanent  in  their  character  may  be  considered 
special  purposes.27  The  power  of  a  municipality  to  tax  as  re- 
stricted by  such  constitutional  limitations  must  be  ascertained 
from  an  examination  of  the  authorities  construing  them,28  and 
such  provisions  restricting  either  the  amount  or  the  rate  levied, 
the  purpose  for  which  raised  or  the  manner  in  which  levied  are 
never  considered  as  unconstitutional  because  of  being  a  restric- 
tion or  limitation  upon  the  general  taxing  powers  of  a  commu- 
nity.29 

§  304.    Purpose  of  taxation. 

Specific  taxation  may  be  illegal,  and  therefore  void,  although 
within  the  limitation  as  to  rate  or  amount  fixed  by  law  because  of 
the  purpose  for  which  levied.  The  very  essence  of  the  validity 
of  a  tax  under  our  theory  of  government  is  a  public  use  of  the 
moneys  derived.  Private  property,  if  taken  for  other  than  a  pub- 
lic purpose  without  the  payment  of  pecuniary  compensation  is 
confiscation  and  cannot  be  sustained  or  upheld  under  any  attribute 
or  theory  of  government  as  understood  and  practiced  here.  In 
common  with  all  legal  questions,  there  are  certain  purposes  clearly 
recognized  as  public  in  their  nature,  others  as  clearly  private  in 
their  character  and  still  others  which  lie  along  the  dividing  line 
between  the  two. 

The  less  of  government  a  people  have,  the  more  independent 
and  prosperous  they  are.  The  less  a  government  engages  in  what 
in  their  elementary  and  basic  economic  character  are  "private 

W.  43.     The  obligation  of  a  void  con-  27  Combs  v.  Letcher  County,  21  Ky. 

tract  where  the  city  has  received  the  L.  R.  1057,  54  S.  W.  177. 

benefits    may    be    met    by    taxation 

"for  current  expenses"  when  the  levy  28  Herring  v"  Dixon'  122  N"  C'  424' 

is    within   the   constitutional    limit.  State    v"    Hayw°°d    County    Com'rs, 

-I  00     AT       p       0-1  C 

Rodman-Heath  Cotton  Mills  v.  Town  ' 

of  Waxhaw,  130  IN.  C.  293,  41  S.  E.        29  city  of  Cumberland  v.  Magruder, 

488;     State     v.     Haywood     County  34  Md.   381;    Assessors  of  Philadel- 

Com'rs,   122   N.   C.  815;    Herring  v.  phia     v.     Philadelphia     Com'rs,     3 

Dixon,  122  N.  C.  424;  Ainsworth  v.  Brewst.  (Pa.)  333. 

Dean,  21  N.  H.  400. 


686 


PUBLIC  REVENUES. 


§  304 


enterprises,"  the  more  successful  financially  will  be  all  the  people 
within  its  jurisdiction. 

Government  should  never  undertake  the  execution  or  manage- 
ment of,  nor  extend  aid  to,  enterprises,  the  character  of  which  as 
defined  by  the  use  of  the  term  "private"  is  questionable.  The 
fact  that  a  government  engages  in  an  enterprise  does  not  change 
its  economic  character  from  a  purely  private  enterprise  or  busi- 
ness to  a  public  one.  Taxation  for  all  such  questionable  enter- 
prises by  the  government  is  universally  considered  not  only  un- 
wise but  unconstitutional  and  invalid.30 


«o  Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 
655.  "But  such  instances  are  few 
and  exceptional,  and  the  proposition 
is  a  very  broad  one,  that  debts  con- 
tracted by  municipal  corporations 
must  be  paid,  if  paid  at  all,  out  of 
taxes  which  they  may  lawfully  levy, 
and  that  all  contracts  creating  debts 
to  be  paid  in  future,  not  limited  to 
payment  from  some  other  source,  im- 
ply an  obligation  to  pay  by  taxation. 

"It  follows  that  in  this  class  of 
cases  the  right  to  contract  must  be 
limited  by  the  right  to  tax,  and  if 
in  the  given  case  no  tax  can  lawfully 
be  levied  to  pay  the  debt,  the  con- 
tract itself  is  void  for  want  of 
authority  to  make  it. 

"If  this  were  not  so,  these  corpora- 
tions could  make  valid  promises, 
which  they  have  no  means  of  ful- 
filling, and  on  which  even  the  legis- 
lature that  created  them  can  confer 
no  such  power.  The  validity  of  a 
contract  which  can  only  be  fulfilled 
by  a  resort  to  taxation,  depends  on 
the  power  to  levy  the  tax  for  that 
purpose.  Sharpless  v.  City  of  Phila- 
delphia, 21  Pa,  147,  167;  Hanson  v. 
Vernon,  27  Iowa,  28;  Allen  v.  In- 
habitants of  Jay,  60  Me.  127;  Lowell 
v.  City  of  Boston,  111  Mass.  454; 
Whiting  v.  Sheboygan  &  F.  L.  R. 


Co.,  25  Wis.  188.  It  is,  therefore,  to 
be  inferred  that  when  the  legisla- 
ture of  a  state  authorizes  a  county 
or  city  to  contract  a  debt  by  bond, 
it  intends  to  authorize  it  to  levy 
such  taxes  as  are  necessary  to  pay 
the  debt,  unless  there  is  in  the  Act 
itself,  or  in  some  general  statute,  a 
limitation  upon  the  power  of  taxa- 
tion which  repels  such  an  infer- 
ence." 

People  v.  Parks,  58  Cal.  624.  In  a 
drainage  law,  provision  was  made 
for  the  ostensible  purpose  of  the  act 
and  also  for  the  storage  of  dfibris 
from  mines.  The  court  says:  "The 
storage  of  debris  is  in  its  nature  a 
private  enterprise  in  which  a  few 
only  are  interested.  The  drainage 
of  a  state  is  a  public  purpose  in 
which  the  public  may  be  interested. 
To  promote  a  public  purpose  by  a 
tax  levy  upon  the  property  in  the 
state  is  within  the  power  of  the  leg- 
islature; but  the  legislature  has  no 
power  to  impose  taxes  for  the  bene- 
fit of  individuals  connected  with  a 
private  enterprise  even  though  the 
private  enterprise  might  benefit  the 
local  public  in  a  remote  or  collateral 
way." 

Opinion  of  the  Justices,  58  Me. 
590.  "Individuals  and  corporations 
embark  in  manufactures  for  the  pur- 


§  304 


TAXATION. 


687 


The  legislative  body  of  a  sovereign,  much  less  a  subordinate 
body,  possessing  the  right  only  to  exercise  such  powers  as  may 


poses  of  personal  and  corporate  gain. 
Their  purposes  and  objects  are  pre- 
cisely the  same  as  those  of  the  far- 
mer, the  mechanic  or  the  day  labor- 
er. They  engage  in  the  selected 
branch  of  manufactures  for  the  pur- 
pose and  with  the  hope  and  expecta- 
tion not  of  loss  but  of  profit. 
*  *  *  The  general  benefit  to  the 
community  resulting  from  every  de- 
scription of  well-directed  labor  is  of 
the  same  character,  whatever  may  be 
the  branch  of  industry  upon  which  it 
is  expended-.  All  useful  laborers,  no 
matter  what  the  field  of  labor,  serve 
the  state  by  increasing  the  aggre- 
gate of  its  products — its  wealth!. 
There  is  nothing  of  a  public  nature 
any  more  entitling  the  manufacturer 
to  public  gifts,  than  the  sailor,  the 
mechanic,  the  lumberman  or  the 
farmer.  Our  government  is  based 
upon  equality  of  rights.  All  honest 
employments  are  honorable.  The 
state  cannot  rightfully  discriminate 
among  occupations,  for  a  discrimina- 
tion in  favor  of  one  branch  of  in- 
dustry is  a  discrimination  adverse 
to  all  other  branches.  The  state  is 
equally  to  protect  all,  giving  no  un- 
due advantages  or  special  or  exclu- 
sive preferences  to  any." 

Cooley,  Taxation,  p.  103.  "It  is 
also  agreed  that  the  determination 
what  is  and  what  is  not  a  public  pur- 
pose belongs  in  the  first  instance  to 
the  legislative  department.  It  be- 
longs there  because  the  taxing  power 
is  a  branch  of  the  legislative,  and 
the  legislature  cannot  lie  under  the 
necessity  of  requiring  the  opinion  or 
the  consent  of  another  department 
of  the  government  before  it  will  be 
at  liberty  to  exercise  one  of  its 


acknowledged  powers.  The  inde- 
pendence of  the  legislature  is  an 
axiom  in  government;  and  to  be  in- 
dependent, it  must  act  in  its  own 
good  time,  on  its  own  judgment,  in- 
fluenced by  its  own  reasons,  restrain- 
ed only  as  the  people  may  have 
seen  fit  to  restrain  the  grant  of  leg- 
islative power  in  making  it.  The 
legislature  must,  consequently,  de- 
termine for  itself,  in  every  instance, 
whether  a  particular  purpose  is  or 
is  not  one  which  so  far  concerns  the 
public  as  to  render  taxation  admis- 
sible. But  it  is  also  generally  ad- 
mitted that  the  legislative  determi- 
nation on  this  subject  is  not  absolute- 
ly conclusive.  It  may  be  sufficiently 
so  to  put  the  administrative  machin- 
ery of  the  state  in  motion;  but  when 
the  exaction  is  made  of  an  indivi- 
dual, and  the  power  of  the  state  is 
made  use  of  to  compel  submission, 
he  has  always  the  right  to  invoke 
the  protection  of  the  law.  And  an 
appeal  to  the  law  for  protection  of 
individual  property  must  necessarily 
render  the  question,  which  lies  at 
the  foundation  of  the  demand,  a 
judicial  question,  upon  which  the 
courts  cannot  refuse  to  pass  judg- 
ment. It  has  been  forcibly,  and  yet 
very  truly,  said,  that  an  unlimited 
power  in  the  legislature  to  make  any 
and  everything  lawful  which  it 
might  see  fit  to  call  taxation,  would, 
when  plainly  stated,  be  an  unlimited 
power  to  plunder  the  citizen.  In  at- 
tempting to  exercise  the  right,  in  any 
particular  case,  the  legislature  mere- 
ly asserts  its  jurisdiction  to  act; 
but  questions  of  jurisdiction  are  not 
usually  concluded  by  a  decision  in 
Its  favor  made  by  the  party  claiming 


688 


PUBLIC  REVENUES. 


§   304 


expressly  be  granted  or  delegated  to  it  is  limited  in  its  right  to 
levy  taxes  to  those  imposed  for  public  purposes  or  those  in  which 
the  people  of  the  corporation  have  a  general  interest.31  If  the 


it;  they  necessarily  remain  open, 
and  may  be  disputed  anywhere.  This 
is  as  true  of  courts  as  it  is  of  the 
legislature;  jurisdiction  comes  from 
the  law,  and  is  not  obtained  by  any 
tribunal  through  a  simple  assertion 
tnat  it  exists.  When,  therefore,  the 
question  of  validity  of  taxation  be- 
comes judicial,  if  it  shall  appear 
that  the  exaction  is  made  for  a  pur- 
pose not  public,  the  right  of  the  in- 
dividual to  protection  is  clear." 

Wayland  Political  Economy,  Book 
4,  c.  3,  §  2.  "The  only  ground  on 
which  the  support  of  religion 
by  public  taxation  can  be  defend- 
ed is  that  its  existence  is  nec- 
essary for  the  support  of  the  civil 
government  and  that  it  can  be  sus- 
tained in  no  other  manner  than 
by  compulsion.  The  first  assertion 
we  grant  to  be  true;  the  second  we 
utterly  deny.  Hence,  we  do  not  be- 
lieve that  any  taxation  for  this  pur- 
pose is  necessary.  All  that  religious 
societies  have  a  right  to  ask  of  the 
civil  government  is  the  same  privil- 
eges for  transacting  their  own  af- 
fairs which  societies  of  every  other 
sort  possess.  This  they  have  a 
right  to  demand,  not  because  they 
are  religious  societies  but  because 
the  exercise  of  religion  is  an  inno- 
cent mode  of  pursuing  happiness. 
If  these  be  not  granted,  religious 
men  are  oppressed  and  the  country 
where  such  oppression  prevails,  let 
it  call  itself  what  it  may  is  not, 
in  this  matter,  free."  Nalle  v.  City 
of  Austin  (Tex.  Civ.  App.)  21  S.  W. 
375. 

si  Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 


655.  "We  have  established  we  think, 
beyond  cavil,  that  there  can  be  no 
lawful  tax  which  is  not  laid  for  a 
public  purpose.  It  may  not  be  easy 
to  draw  the  line  in  all  cases  so  as  to 
decide  what  is  a  public  purpose  in 
this  sense  and  what  is  not.  It  is 
undoubtedly  the  duty  of  the  legis- 
lature which  imposes  or  authorizes 
municipalities  to  impose  a  tax  to 
see  that  it  is  not  to  be  used  for 
purposes  of  private  interest  instead 
of  a  public  use  and  the  courts  can 
only  be  justified  in  interposing 
when  a  violation  of  this  principle  is 
clear  and  the  reason  for  interference 
cogent,  and  in  deciding  whether,  in 
the  given  case,  the  object  for  which 
the  taxes  are  assessed  falls  upon  the 
one  side  or  the  other  of  this  line, 
they  must  be  governed  mainly  by 
the  course  and  usage  of  the  govern- 
ment, the  objects  for  which  taxes 
have  been  customarily  and  by  long 
course  of  legislation  levied,  what 
objects  or  purposes  have  been  con- 
sidered necessary  to  the  support  and 
for  the  proper  use  of  the  govern- 
ment, whether  state  or  municipal. 
Whatever  lawfully  pertains  to  this 
and  is  sanctioned  by  time  and  the 
acquiescence  of  the  people  may  well 
be  held  to  belong  to  the  public  use 
and  proper  for  the  maintenance  of 
good  government  though  this  may 
not  be  the  only  criterion  of  rightful 
taxation." 

Webster  v.  Police  Jury  of  Rapides, 
51  'La.  Ann.  1204.  Under  Const,  of 
1879,  arts.  163  and  202,  granting  the 
exercise  of  the  taxation  power  by 
parishes  for  parish  purposes  and  the 
care  by  each  of  its  infirm,  sick  and 


§  304 


TAXATION. 


689 


purpose  for  which  the  obligation  is  contracted  is  one  not  of  a  pub- 
lic character,  a  tax  cannot  be  constitutionally  or  legally  imposed 
to  pay  such  obligation.32  This  question  has  already  been  dis- 


disabled  paupers,  Act  157  of  1894 
requiring  parishes  to  meet  the  ex- 
pense of  treatment  at  Keeley  insti- 
tutes of  persons  unable  to  pay,  is 
constitutional. 

Merrick  v.  Inhabitants  of  Amherst, 
94  Mass.  (12  Allen)  500.  The  estab- 
lishment of  an  agricultural  college 
is  a  public  purpose  sufficient  to 
authorize  the  appropriation  of  pub- 
lic moneys. 

Sherman  v.  Village  of  Clifton 
Springs,  27  Hun  (N.  Y.)  390.  A 
tax  for  the  refund  of  illegal  taxes 
paid  during  previous  years  is  for  a 
public  purpose.  Hixon  v.  Oneida 
County,  82  Wis.  515,  52  N.  W.  445. 

Curtis'  Adm'r  v.  Whipple,  24  Wis. 
350.  "If  we  turn  to  the  cases  where 
taxation  has  been  sustained  as  in 
pursuance  of  the  power,  we  shall 
find  in  every  one  of  them  that  there 
was  some  direct  advantage  accruing 
to  the  public  from  the  outlay,  either 
by  its  being  the  owner  or  part  owner 
of  the  property  or  thing  to  be  creat- 
ed or  obtained  with  the  money,  or 
the  party  immediately  interested  in 
and  benefited  by  the  work  to  be  per- 
formed, the  same  being  matters  of 
public  concern;  or  because  the  pro- 
ceeds of  the  tax  were  to  be  expended 
in  defraying  the  legitimate  expenses 
of  government,  and  in  promoting  the 
peace,  good  order  and  welfare  of  so- 
ciety. Any  direct  public  benefit  or 
interest  of  this  nature,  no  matter 
how  slight,  as  distinguished  from 
those  public  benefits  or  interests  in- 
cidentally arising  from  the  employ- 
ment or  business  of  private  indi- 
viduals or  corporations,  will  un- 
doubtedly sustain  a  tax.  In  thus 


endeavoring  to  define  how  the  public 
must  be  beneficially  interested  in 
order  to  justify  the  raising  of  money 
by  taxation  in  cases  like  the  present, 
we  of  course  do  not  intend  to  include 
all  the  purposes  for  which  money 
may  be  so  raised.  Taxes  may  be 
levied  and  collected  for  charitable 
purposes,  but  these  constitute  a  pecu- 
liar ground  for  the  exercise  of  the 
power  which  does  not  exist  here. 

"So  claims  founded  in  equity  and 
justice  in  the  largest  sense,  and  in 
gratitude,  will  support  a  tax;  such 
claims,  however,  and  we  think  all 
others  where  taxation  is  proper,  ex- 
cept claims  founded  in  charity,  may 
be  referred  to  the  general  principle 
above  spoken  of,  of  public  interest 
in,  or  benefits  received  by,  the  trans- 
actions out  of  which,  the  claims 
arose." 

32  People  v.  Rio  Grande  County 
Com'rs,  11  Colo.  App.  124;  Haber- 
sham  County  Com'rs  v.  Porter  Mfg. 
Co.,  103  Ga.  613;  Sleight  v.  People, 
74  111.  47;  Gerry  v.  Inhabitants  of 
Stoneham,  83  Mass.  (1  Allen)  319. 
The  appropriation  by  vote  of  the  in- 
habitants of  a  town  of  moneys  to 
celebrate  the  Fourth  of  July  and  for 
other  purposes  renders  illegal  an 
assessment  based  upon  such  vote. 
Ada  Tp.  v.  Kent  Circ.  Judge,  114 
Mich.  77;  Colt  v.  City  of  Grand  Rap- 
ids, 115  Mich.  493;  Cover  v.  Town  of 
Baytown,  12  Minn.  124  (Gil.  71). 
Taxes  cannot  be  levied  for  the  pur- 
pose of  indemnifying  persons  volun- 
tarily paying  bounties  to  volunteers. 
See,  also,  Freeland  v.  Hastings,  92 
Mass.  (10  Allen)  570,  as  holding 
that  the  legislature  has  no  power 


Abb.  Corp.— 44. 


690 


PUBLIC  REVENUES. 


§    304 


cussed  in  connection  with  the  subject  of  the  right  of  a  public 
corporation  to  incur  indebtedness.  The  cases  there  cited  sustain 
the  principles  given  in  this  section.33  The  construction  of 
levees,34  the  maintenance  of  the  public  peace,  safety  and  health,35 


to  authorize  the  repayment  of  money 
paid  by  individuals  for  substitutes. 
Wagner  v.  Jackson,  31  N.  J.  Law, 
189.  The  cost  of  substitutes  held 
not  a  public  purpose  authorizing  the 
levy  of  taxes.  But  in  Wisconsin  it 
Is  held  that'  the  raising  of  money  by 
taxation  for  the  payment  of  bounties 
to  volunteers  enlisting  in  the  mili- 
tary service  of  the  United  States  is 
for  a  public  purpose,  bee  the  cases 
of  Brodhead  v.  City  of  Milwaukee, 
19  Wis.  624;  and  Dinehart  v.  Town 
of  La  Fayette,  19  Wis.  677.  See, 
also,  the  later  case  of  State  v.  Tap- 
pan,  29  Wis.  664;  In  re  Jensen,  44 
App.  Div.  509,  60  N.  Y.  Supp.  933, 
A  tax  is  void  levied  to  defray  ex- 
penses incurred  by  public  officials  in 
defending  unsuccessful  prosecutions 
against  them  for  official  misconduct; 
the  purpose  not  being  a  public  one 
within  the  meaning  of  the  constitu- 
tion, art.  8,  §  10. 

Bush  v.  Orange  County  Sup'rs,  159 
N.  Y.  212,  45  L.  R.  A.  556;  Mont- 
gomery v.  Com.,  91  Pa.  125;  Jefferson 
Iron  Co.  v.  Hart,  18  Tex.  Civ.  App. 
525;  Mitchell  County  v.  City  Nat. 
Bank,  91  Tex.  361;  Drew  v.  Davis,  10 
Vt.  506;  Neale  v.  Wood  County  Ct.. 
43  W.  Va,  90.  Wisconsin  Industrial 
School  for  Girls  v.  Clark  County,  103 
Wis.  651,  79  N.  W.  422.  A  public 
corporation  cannot  expend  moneys 
raised  by  general  taxation  in  partial 
support  of  the  corporation  engaged 
In  a  private  enterprise. 

as  State  v.  Rose,.  26  Fla.  117,  7  So. 
870;  People  v.  Allen,  42  N.  Y.  378. 
Construing  New  York  Const.  1846, 


art.  1,  §  9,  requiring  a  two-thirds 
vote  for  every  bill  appropriating 
money  "for  local  or  private  pur- 
poses" and  holding  that  a  bill  ap- 
propriating money  for  the  improve- 
ment of  the  navigation  of  the  Bou- 
quet River  is  void  because  appro- 
priating money  for  a  "local  or  pri- 
vate purpose."  §§  145  et  seq.  See, 
also,  §§  417  et  seq.,  post. 

s*  People  v.  Whyler,  41  Cal.  351. 
In  this  case  the  point  was  urged  that 
this  was  an  assessment  and  not  a 
tax  and  therefore  void  under  the 
California  statute.  Speaking  of  this 
point  the  court  said:  "The  principal 
reason  urged  in  support  of  the  posi- 
tion that  the  charge  is  an  assess- 
ment, is  that  it  is  levied  for  the 
purpose  of  making  a  local  improve- 
ment. Acts  almost  innumerable 
have  been  passed,  levying  taxes  for 
such  purposes,  and  no  cases  are  call- 
ed to  our  attention  which  hold  that 
by  reason  of  the  purpose  for  which 
they  were  levied,  they  became  assess- 
ments. Taxes  for  the  construction 
of  roads,  bridges  and  school  houses 
are  familiar  instances.  The  funds 
to  pay  for  the  grading  of  a  street, 
may  be  raised  by  taxes  levied  upon 
all  the  property  of  a  town,  should 
the  law  so  direct;  but  the  tax  does 
not  become  an  assessment,  because 
the  latter  is  the  mode  usually  adopt- 
ed to  raise  the  funds  for  that  pur- 
pose. There  is  no  sufficient  reason 
for  holding  that  the  charge  is  not 
what  the  Legislature  declared  it  to 
be — a  tax."  State  v.  Maginnis,  26 
La.  Ann.  558. 


304 


TAXATION. 


691 


the   construction   and  repair  of  public  buildings  and   improve- 


35  State  v.  Mason,  153  Mo.  23. 
The  rule  applied  to  a  tax  levied  for 
the  payment  of  bounties  in  Trues- 
dell's  Appeal,  58  Pa.  148.  See,  also, 
Hilbish  v.  Catherman,  64  Fa.  154, 
where  the  court  said:  "What  are 
taxes  but  the  revenue  collected  from 
the  people  for  objects  in  which  they 
are  interested — the  contributions  of 
the  people  for  things  useful  and  con- 
ducive to  their  welfare?  This  being 
the  purpose  of  taxation,  there  can 
be  no  difference  between  a  precedent 
authority  for  payment  to  such  an  ob- 
ject and  a  subsequent  compensation 
for  the  same  thing.  The  case  before 
us  is  a  fit  illustration.  *  *  * 
There  is  no  difference  between  this 
case  and  that  of  one  who  builds  a 
bridge  or  a  court  house  for  a  speci- 
fied sum.  He  can  recover  no  more; 
but  if  in  fact  he  has,  by  a  rise  in 
prices,  an  act  of  God  or  for  any 
other  good  cause,  been  compelled  to 
expend  a  larger  sum,  will  anyone 
doubt  the  power  to  pay  the  actual 
cost  of  the  work  out  of  the  public 
treasury?  The  public  received  the 
benefit  and  it  is  just  and  right  that 
the  public  money  should  pay  for  it." 

Weister  v.  Hade,  52  Pa.  474;  Wahl- 
schlager  v.  Town  of  Liberty,  23  Wis. 
362.  In  the  absence  of  express 
authority,  a  town  has  no  power  to 
levy  a  tax  for  the  raising  of  moneys 
to  pay  bounties  to  men  drafted  into 
the  United  States  military  service. 
See,  also,  State  v.  Tappan,  29  Wis. 
664,  as  holding  Wisconsin  Laws  1869, 
c.  260,  compelling  taxation  for  the 
purpose  of  paying  bounties  to  volun- 
teers unconstitutional,  not  being 
for  a  municipal  purpose,  and  also  be- 
cause of  its  compulsory  features. 

In   respect  to   the  expenditure  of 


public  moneys  for  the  payment  of 
bounties  or  pensions,  see  Trustees  of 
Firemen's  Benev.  Fund  v.  Roome, 
93  N.  Y.  313.  Cooley,  Taxation,  p. 
110:  "Some  taxes  levied  by  the  Fed- 
eral government  are  directly  calcu- 
lated and  intended  to  benefit  pri- 
vate individuals.  For  an  illustra- 
tion, it  gives  bounty  land  or  Ren- 
sions  to  those  who  have  performed 
military  or  naval  services  for  the 
country,  notwithstanding  it  has 
made  no  promise,  and  is  consequent- 
ly under  neither  a  legal  nor  a  moral 
obligation  to  do  so.  But  the  prim- 
ary object  in  all  such  bounties  is  not 
the  private  but  the  public  interest. 
To  show  gratitude  for  meritorious 
public  services  in  the  army  and  navy 
by  liberal  provision  for  those  who 
have  performed  them  is  not  only 
proper  in  itself,  but  it  may  reason- 
ably be  expected  to  have  a  powerful 
influence  in  inciting  others  to  self- 
denying,  faithful  and  courageous 
services  in  the  future,  when  the  gov- 
ernment, which  is  so  ready  to  be 
generous  as  well  as  just,  shall  have 
need  of  their  assistance.  The  same 
may  be  said  of  a  like  recognition  of 
valuable  public  services  rendered  by 
other  persons;  the  question  in  every 
case  is  not  one  of  power,  but  of  pru- 
dence and  public  policy." 

State  v.  Tappan,  29  Wis.  664,  672. 
"That  the  legislature  may  confer 
upon  cities,  towns  and  villages  pow- 
er to  raise  money  by  taxation  to  pay 
bounties  to  those  who,  in  time  of 
war,  shall  enlist  in  the  military  serv- 
ice of  the  United  States,  has  been 
settled  by  repeated  decisions  of  this 
court  and  of  the  courts  of  other 
states.  It  was  so  held  upon  the 
grounds  that  claims  for  public  serv- 


692 


PUBLIC  REVENUES. 


§   304 


ments,38  the  establishment  and  maintenance  of  public  parks,37  are 
uses  which  come  within  the  definition  of  those  for  a  public  pur- 


ices,  or  expenditures  founded  in 
equity  and  justice,  in  gratitude  or 
charity,  will  support  a  tax,  which  is 
voluntarily  imposed  upon  a  munici- 
pality by  a  majority  of  the  citizens 
thereof,  or  by  the  consent  of  the  mu- 
nicipality, evidenced  in  some  other 
manner.  Brodhead  v.  City  of  Milwau- 
kee, 19  Wis.  624.  No  person  has  the 
hardihood  to  deny  that  the  men  who 
enlisted  during  our  late  war  to  serve 
in  the  ranks  (and  these  alone  were 
entitled  to  bounties),  became  there- 
by entitled  to  the  gratitude  of  the 
nation;  and  because  of  this,  and  be- 
cause also,  it  was  a  matter  of  gre&t 
public  concern  that  the  ranks  of  our 
armies  should  be  constantly  replen- 
ished by  recruits  from  the  walks  of 
civil  life,  it  was  held  that  the  legis- 
lature might  authorize  the  various 
cities,  towns  and  villages  of  the  state 
to  tax  themselves  respectively,  to  a 
limited  extent,  to  promote  the  public 
welfare,  and  at  the  same  time  to 
recognize  these  obligations  of  grati- 
tude." 

se  Durrett  v.  Buxton,  63  Ark.  397 , 
Habersham  County  Com'rs  v.  Porter 
Mfg.  Co.,  103  Ga.  613,  30  S.  E.  547. 
"The  extra  tax  to  build  a  court 
house  was  enjoined  on  the  ground 
that  the  same  was  unconstitutional 
and  therefore  void.  It  was  contended 
in  the  court  below  as  well  as  in  this 
court  that  the  levy  of  the  extra  tax 
for  this  purpose  violated  that  provis- 
ion of  the  constitution  contained  in 
art.  7,  §  7,  par.  1,  which  declares  that 
'the  debt  hereafter  incurred  by  any 
county,  municipal  corporation  or 
political  division  of  this  state  except 
as  in  this  constitution  provided  for, 
shall  not  exceed  seven  percentum  of 


the  assessed  value  of  all  the  taxable 
property  therein  and  no  such  county, 
municipality  or  division  shall  incur 
any  new  debt,  except  for  a  tempo- 
rary loan  or  loans  to  supply  casual 
deficiencies  of  revenue,  not  to  exceed 
one  fifth  of  one  percentum  of  the 
assessed  value  of  taxable  property 
therein,  without  the  assent  of  two 
thirds  of  the  qualified  voters  thereof 
at  an  election  for  that  purpose,  to  be 
held  as  may  be  prescribed  by  law,  but 
any  city,  the  debt  of  which  does  not 
exceed  seven  per  centum  of  the  as- 
sessed value  of  the  taxable  proper- 
ty, *  *  *  may  be  authorized  by 
law  to  increase  at  any  time  the 
amount  of  said  debt,  three  percen- 
tum upon  such  assessed  valuation.' 
The  position  taken  by  counsel  was 
that  the  levying  of  the  tax  was  the 
creation  of  a  debt,  within  the  mean- 
ing of  the  section  above  quoted,  and, 
that,  the  purpose  for  which  it  was 
levied  not  being  'to  supply  casual 
deficiencies  of  revenue,'  the  levy  was 
illegal  and  void,  because  not  submit- 
ted to  a  vote  of  the  people  of  the 
county.  We  cannot  concur  in  this 
view.  The  levying  of  a  tax  is  not 
the  incurring  of  a  debt.  The  very 
purpose  of  the  clause  of  the  consti- 
tution above  quoted  was  to  compel 
the  counties  and  other  political  divi- 
sions of  this  state,  to  pay  by  annual 
taxation,  as  far  as  possible  all  ex- 
penses which  had  to  be  borne.  As, 
however,  there  might  be  instances 
in  which  the  incurring  of  a  debt 
was  necessary  and  proper,  the  con- 
stitution does  not  absolutely  prohibit 
it,  but  places  a  limit  upon  the  power 
of  the  public  authorities  of  the  dif- 
ferent counties  to  incur  debts,  and 


304 


TAXATION. 


693 


pose.  The  payment  of  expenses  incurred  in  opposing  before  the 
legislature  the  passage  of  an  act  annexing  contiguous  territory,38 
a  donation  to  a  private  institution  not  under  the  control  of  the 


even  where  the  debt  sought  to  be  in- 
curred is  within  the  limit,  requires 
the  consent  of  two-thirds  of  the  qual- 
ified voters,  so  that  no  debt  may  oe 
incurred  unless  such  a  course  is  un- 
doubtedly for  the  public  good. 
*  *  *  The  necessities  of  the  vari- 
ous counties  in  regard  to  these  mat- 
ters are  to  be  determined  by  the  pe- 
culiar conditions  surrounding  each 
county  and  therefore  the  sound 
judgment  of  the  county  authorities 
in  each  case  must  be  relied  upon  to 
provide  the  public  with  proper  build- 
ings on  the  one  hand  and  to  protect 
the  taxpayer  from  useless  and  un- 
necessary burdens  in  regard  to  such 
matters  on  the  other.  While  the 
power  of  the  county  authorities  to 
levy  taxes  for  certain  purposes  is 
limited  as  to  amount  to  be  levied 
and  as  to  others  the  power  is  depend- 
ent upon  a  recommendation  of  the 
grand  jury  still  in  reference  to  the 
duty  of  providing  the  county  with 
public  buildings  *  *  *  the  right 
to  levy  a  tax  sufficient  to  carry  into 
effect  such  purpose  is  unlimited  as 
to  amount."  Walsh  v.  City  Council 
of  Augusta,  67  Ga.  293;  Lewis  v. 
Lofley,  92  Ga.  804. 

Byrne  v.  City  of  Covington,  15 
Ky.  L.  R.  33,  21  S.  W.  1050.  A  gen- 
eral tax  for  the  construction  of  a 
sewer  is  authorized  where  the  im- 
provement was  a  public  necessity 
and  the  right  to  tax  abutting  prop- 
erty for  the  construction  of  such  im- 
provements did  not  exist.  Combs  v. 
Letcher  County,  21  Ky.  L.  R.  1057, 
54  S.  W.  177;  Friend  v.  Gilbert,  108 
Mass.  408.  The  payment  of  addi- 
tional compensation  to  a  subcontrac- 


tor on  a  public  building  comes  with- 
in the  rule.  Hunter  v.  Justices  of 
Campbell  County,  47  Tenn.  (7  Cold.) 
49;  Cresswell  Ranch  &  Cattle  Co.  v. 
Roberts  County  (Tex.  Civ.  App.)  27 
S.  W.  737. 

37  South  Park  Com'rs  v.  First  Nat. 
Bank,  177  111.  234,  affirming  Knopf 
v.  Chicago  Real  Estate  Board,  173 
111.  196. 

33  Coolidge  v.  Brookline,  114  Mass. 
592.  In  deciding  that  a  municipal 
corporation  could  impose  no  tax  for 
the  purpose  mentioned  in  the  text, 
the  court  said:  "Such  power  to  tax, 
must,  in  all  cases,  spring  from  the 
statutes,  and  must  be  found  there  in 
terms,  or  be  necessarily  inferred 
from  some  corporate  duty  imposed 
or  some  corporate  right  given.  The 
only  exception  to  this  rule  is  confin- 
ed to  a  few  cases  of  usage  relating 
to  the  comfort  and  convenience  of 
the  inhabitants  of  a  town,  such  as 
town  clocks,  hay  scales,  pumps, 
reservoirs,  etc.,  and  is  not  to  be  ex- 
tended. Towns  have  been  kept  rig- 
idly within  this  rule  both  by  the 
legislature  and  by  the  courts.  Its 
observance  is  necessary  from  the 
character  of  their  organization  and 
from  the  nature  of  the  delegated 
powers  which  they  exercise;  and  as 
there  is  no  controlling  power  pro- 
vided by  law  to  restrain  and  limit 
them  in  the  expenditures  they  can 
by  law  incur,  and  for  which  they  can 
lay  taxes,  it  is  of  the  first  impor- 
tance to  the  taxpayer  that  they  ex- 
ercise this  great  power  for  author- 
ized purposes,  and  a  summary  rem- 
edy against  abuse  of  such  legal  pow- 
er is  given  by  the  statute  under 


694 


PUBLIC  REVENUES. 


§304 


municipality,39  an  appropriation  for  the  reimbursement  of  a  town- 
ship treasurer  who  has  been  robbed  of  public  moneys  while  in  his 
keeping,40  refunding  a  donation  given  to  the  town  without  expec- 
tation of  repayment,41  the  benefits  which  may  come  to  a  city  or 


which  this  bill  is  brought."  Follow- 
ing Minot  T.  Inhabitants  of  West 
Roxbury,  112  Mass.  1. 

39  Hitchcock  v.  City  of  St.  Louis, 
49  Mo.  484. 

*o  Thorndike  v.  Inhabitants  of 
Camden,  82  Me.  39,  7  L.  R.  A.  463. 
A  town  has  no  power  to  levy  taxes 
for  the  repayment  of  a  tax  collector 
who  upon  his  personal  responsibility 
accepted  a  note  of  a  taxpayer  as  a 
cash  payment  of  his  taxes,  and  sub- 
sequently was  unable  to  collect  the 
same  having  accounted  to  the  town 
for  the  fact  of  the  note  as  cash. 

People  v.  Onondaga  Sup'rs,  16 
Mich.  254;  Bristol  v.  Johnson,  34 
Mich.  123.  In  this  case,  one  Bera, 
treasurer,  had  public  funds  stolen 
from  him  and  reimbursed  the  town- 
ship from  his  personal  estate.  The 
legislature  passed  an  act  calling  for 
a  tax  to  be  levied,  and  Bera  refund- 
ed. In  holding  this  unconstitutional 
the  court  said:  "There  was  un- 
questionably room  for  a  strong  mor- 
al appeal  to  the  taxpayers  of  the 
township  to  divide  the  loss  among 
the  whole,  Instead  of  leaving  it  to 
fall  wholly  upon  him;  an^  the  Leg- 
islature saw  fit  to  enact  that  the 
amount  should  be  raised  from  the 
taxpayers  and  refunded  to  him  and 
in  obedience  thereto  the  sum  was 
spread  upon  the  roll  and  it  became  a 
lien  upon  the  taxable  real  estate  in 
the  township,  unless  the  enactment 
was  Invalid.  The  defendant,  John- 
son, as  treasurer,  proceeded  to  make 
collection  and  some  of  the  taxpayers 
made  payment  without  bringing  into 


question  the  legality  of  the  tax;  but 
tne  complainants  resisted  and  filed 
this  bill.  *  *  *  Whatever  may 
be  said  in  favor  of  the  moral  fitness 
of  the  purpose  to  relieve  Mr.  Bera 
there  can  be  no  doubt  of  complain- 
ants' right  to  question  their  legal 
obligation  or  liability  in  the  prem- 
ises nor  of  their  right  to  escape 
payment  if  not  liable;  and  that  as 
matter  of  law  they  were  not  liable 
appears  to  the  court  to  have  been 
settled  beyond  controversy.  A  repe- 
tition of  the  reasoning  of  former 
cases  is  not  necessary  and  if  further 
reasons  might  be  added,  they  are 
not  called  for."  But  see  the  fol- 
lowing cases  holding  that  where  pub- 
lic officials  have  been  subjected  to 
loss  in  an  honest  attempt  to  perform 
their  public  duty,  they  may  be  in- 
demnified by  the  municipality  for 
which  they  were  acting:  Hadsell  v. 
Inhabintants  of  Hancock,  69  Mass.  (3 
Gray)  526;  Nelson  v.  Inhabitants  of 
Milford,  24  Mass.  (7  Pick.)  18;  Ban 
croft  v.  Inhabitants  of  Lynnfield,  35 
Mass.  (18  Pick.)  566;  Fuller  v.  In- 
habitants of  Groton,  77  Mass.  (11 
Gray)  340;  Baker  v.  Inhabitants  of 
Windham,  13  Me.  74;  Pike  v.  Middle- 
ton,  12  N.  H.  278;  Sherman  v.  Carr, 
8  R.  I.  431;  Briggs  v.  Whipple,  6 
Vt.  95. 

*i  Perkins  v.  Inhabitants  of  Mil- 
ford,  59  Me.  315;  Osgood  v.  Town  of 
Conway,  67  N.  H.  100,  36  Atl.  608. 
The  rule  also  applies  to  services 
voluntarily  rendered  a  town.  The 
levy  of  a  tax  for  their  payment  is 
invalid.  Citing,  among  other  cases, 


§  304 


TAXATION. 


695 


village  from  the  establishment  of  a  successful  manufacturing 
plant,42  the  expenditure  of  public  moneys  for  the  entertainment  of 
a  presidential  candidate  attending  an  industrial  exposition,43  the 
construction  of  a  dam  at  the  expense  of  the  taxpayers,  the  main 
purpose  of  which  is  to  generate  power  for  lease  to  private  manu- 
facturing enterprises  which  may  thereby  be  induced  to  come  to  tha 
city,44  are  not  public  purposes  within  the  meaning  of  that  phrase 


Town  of  Lebanon  v.  Griffin,  45  N.  H. 
558;  Buxton  v.  Chesterfield,  60  N. 
H.  357;  Bartholomew  v.  Jackson,  20 
Johns.  (N.  Y.)  28.  The  court  said: 
"A  promise  to  pay  for  services  vol- 
untarily rendered,  without  the  re- 
quest or  authority  of  the  promisor, 
is  not  enforceable,  although  they 
may  be  beneficial  and  valuable  to 
him.  *  *  *  As  the  town  did  not 
become  legally  liable  to  pay  for  the 
services,  under  either  an  express  or 
an  implied  contract,  the  imposition 
of  a  tax  upon  its  citizens  for  that 
purpose  would  be  unauthorized  and 
illegal." 

42  Weismer  v.  Village  of  Douglas, 
4  Hun,  201,  64  N.  Y.  91.  See,  also, 
the  following  authorities  relative  to 
the  right  of  taxation  for  the  benefit 
of  private  business  enterprises: 
Citizens'  Sav.  &  Loan  Ass'n  v.  City 
of  Topeka,  87  U.  S.  (20  Wall.)  655; 
City  of  Parkersburg  v.  Brown,  106 
U.  S.  487;  Commercial  Nat.  Bank 
v.  City  of  lola,  2  Dill.  353,  Fed.  Cas. 
No.  3,061;  English  v.  People,  96  111. 
566;  National  Bank  of  Cleveland  v. 
City  of  lola,  9  Kan.  689;  McConnell 
v.  Hamm,  16  Kan.  228;  Central 
Branch  U.  P.  R.  Co.  v.  Smith,  23 
Kan.  745;  Opinions  of  the  Justices, 
58  Me.  590;  Allen  v.  Inhabitants  of 
Jay,  60  Me.  124;  Lowell  v.  City  of 
Boston,  111  Mass.  454. 

Cooley,  Taxation  p.  126.  "How- 
ever important  it  may  be  to  the 
community  that  individual  citizens 


should  prosper  in  their  industrial 
enterprises,  it  is  not  the  business 
of  government  to  aid  them  with  its 
means.  Enlightened  states,  while 
giving  all  necessary  protection  to 
their  citizens,  will  leave  every  man 
to  depend  for  his  success  and  pros- 
perity in  business  on  his  own  exer- 
tions, in  the  belief  that  by  doing  so 
his  own  industry  will  be  more  cer- 
tainly enlisted,  and  his  prosperity 
and  happiness  more  probably  secur- 
ed. It  may  therefore  be  safely  assert- 
ed that  taxation  for  the  purpose  of 
raising  money  from  the  public  to  be 
given  or  even  loaned  to  private  par- 
ties, in  order  that  they  may  use  it 
in  their  individual  business  enter- 
prises, is  not  recognized  as  an  em- 
ployment of  the  power  for  a  public 
use.  In  contemplation  of  law  it 
would  be  taking  the  common  prop- 
erty of  the  whole  community  and! 
handing  it  over  to  private  parties 
for  their  private  gain,  and  conse- 
quently unlawful.  Any  incidental 
benefits  to  the  public  that  might 
flow  from  it  could  not  support  it  as 
legitimate  taxation." 

« Moore  v.  Hoffman,  2  Cin.  R. 
(Ohio)  453. 

<*Nalle  v.  City  of  Austin  (Tex. 
Civ.  App.)  21  S.  W.  375.  "The 
power  of  taxation  is  only  lodged  in 
the  city  for  public  purposes.  It  hag 
no  authority  to  engage  in  business 
enterprises  that  are  private  in  char- 
acter. It  is  to  the  charter  created 


696 


PUBLIC  REVENUES. 


§   304 


and  the  levy  of  taxes  to  meet  such  disbursements  will  be  held 
illegal  and  can  be  enjoined.  To  authorize  the  levy  of  taxes  by  a 
subordinate  corporation  it  is  not  necessary,  however,  that  they  be 
of  strictly  local  character  so  long  as  the  public  receive  some  direct 
adva'ntage.  In  a  Wisconsin  case45  the  court  held  that  the  legis- 
lature could  authorize  taxes  for  defraying  the  expenses  of  govern- 
ment, promoting  the  peace,  good  order  and  welfare  of  society, 
paying  claims  founded  upon  natural  justice  and  equity  or  upon 
gratitude  for  public  services  or  expenditures,  or  discharging  the 
obligations  of  charity  and  humanity  provided  the  liability  of  the 
corporation  had  been  established.  The  limitation  is  the  saving 
clause  of  this  decision. 

Railway  aid.  The  use  of  a  railroad  though  owned  by  a  private 
corporatiDn  is  public  to  such  an  extent,  it  has  been  repeatedly  held, 
as  to  authorize  taxation  for  its  aid.  This  proposition  at  the  pres- 


by  law  that  the  city  looks  for  its 
power  to  act  and  create  a  debt 
chargeable  against  the  municipality, 
payable  by  taxes  collected  from  its 
citizens.  If  the  main  purpose  of 
the  city  is  to  engage  in  the  unlaw- 
ful enterprise,  it  cannot  give  the 
illegal  act  life  by  naming  it  for  a 
purpose  that  is  unlawful,  and  dis- 
guising the  true  purpose  under  the 
semblance  of  legal  authority.  De- 
claring the  exercise  of  power  in  the 
given  instance  to  be  for  a  purpose 
within  its  charter  powers  does  not 
add  any  validity  to  the  illegal  act; 
for  such  act  is  not  only  ultra  vires 
the  city  charter,  but  is  in  law  a 
fraud  upon  the  rights  of  the  tax- 
payers. The  declaration  made  by 
the  city  council  through  the  or- 
dinances authorizing  the  issue  of 
the  bonas  that  the  purpose  in  build- 
ing the  dam  was  to  furnish  the  city 
with  water  and  lights,  although  for 
an  apparent  legal  purpose,  is  ac- 
cording to  the  allegations  of  the 
count  of  the  petition  quoted,  for  the 
main  purpose  of  furnishing  the  city 


water  power  to  engage  in  manufac- 
turing enterprises,  and  that  furnish- 
ing the  city  with  water  and  lights 
is  simply  incidental  to  such  main 
purpose.  *  *  *  If  this  be  the 
principal  purpose  and  object  in 
erecting  the  dam,  and  issuing  the 
bonds,  the  fact  that  there  is  inci- 
dentally connected  with  such  enter- 
prise a  purpose  that  is  lawful  will 
not  give  any  life  and  validity  to  the 
illegal  purpose;  but  the  whole 
transaction  is  tainted  with  the  vice 
of  the  forbidden  object,  and  is  in 
its  entirety  illegal.  The  courts 
will  not  endeavor  to  separate  the 
legal  and  illegal  parts  of  the  trans- 
action, for  this  would  be  impracti- 
cable, and  a  court  of  equity  will  not 
undertake  it."  Citing  among  other 
cases  Strahan  v.  Town  of  Malvern, 
77  Iowa,  454,  42  N.  W.  369;  Cincin- 
nati St.  R.  Co.  v.  Smith,  29  Ohio  St. 
307;  Citizens'  Bank  v.  City  of  Ter- 
rell, 78  Tex.  456. 

«  State  v.   Tappan,   29  Wis.    664; 
Mills  v.  Charleton,  29  Wis.  400. 


305 


TAXATION. 


ent  time  is  not  disputed  though  the  power  to  levy  taxes  for  this 
purpose  must  be  expressly  given.     It  can  never  be  implied.48 

§  3C5.     The  payment  of  debts. 

The  payment  by  an  individual  as  well  as  a  public  corporation 
of  a  legal  debt  or  obligation  is  considered  praiseworthy,  and  the 
levying  of  taxes,  when  within  the  limit  fixed  by  law  is  not  open 
to  objection.  The  right  to  levy  for  this  purpose  need  not  be  ex- 
pressly given  where  there  is  first  legal  authority  for  the  incurr- 
ment  of  the  expenditure.  The  power  to  incur  the  expense  implies 
the  power  and  the  duty  to  pay,  the  resulting  obligation.47  The 
performance  of  the  duty  can  be  enforced  by  mandamus.48 


« Ogden  v.  Daviess  County,  102 
U.  S.  634;  Scotland  County  Ct.  v. 
United  States,  140  U.  S.  41;  North- 
ern Pac.  R.  Co.  v.  Roberts,  42  Fed. 
734;  Brocaw  v.  Gibson  County 
Com'rs,  73  Ind.  543;  Stewart  v. 
Polk  County  Sup'rs,  30  Iowa,  9; 
Burnes  v.  City  of  Atchison,  2  Kan. 
454. 

Clifton  v.  Hobgood,  106  La.  535,  31 
So.  46.  Under  constitutional  and 
statutory  authority  a  special  tax 
can  be  imposed  in  aid  of  a  railroad 
that  does  not  pass  through  nor  ter- 
minate in  the  district  taxed.  Fulli- 
love  v.  Police  Jury  of  Bossier  Par- 
ish, 51  La.  Ann.  359.  See,  also, 
cases  cited  in  §  145  et  seq. 

« United  States  v.  City  of  New 
Orleans,  98  U.  S.  381,  reversing  Fed. 
Cas.  No.  15,871,  2  Woods,  230.  "The 
number  and  variety  of  works  which 
may  be  authorized,  having  a  gen- 
eral regard  to  the  welfare  of  the 
city  or  of  its  people,  are  mere  mat- 
ters of  legislative  discretion.  All 
of  them  require  for  their  execution 
considerable  expenditures  of  money. 
Their  authorization  without  provid- 
ing the  means  for  such  expendi- 
tures would  be  an  idle  and  futile 


proceeding.  Their  authorization, 
therefore,  implies  and  carries  with 
it  the  power  to  adopt  the  ordinary 
means  employed  by  such  bodies  to 
raise  funds  for  their  execution,  un- 
less such  funds  are  otherwise  pro- 
vided. And  the  ordinary  means  in 
such  cases  is  taxation.  A  munic- 
ipality without  the  power  of  taxa- 
tion would  be  a  body  without  life, 
incapable  of  acting,  and  serving  no 
useful  purpose.  For  the  same  rea- 
son, when  authority  to  borrow 
money  or  incur  an  obligation  in  or- 
der to  execute  a  public  work  is  con- 
ferred upon  a  municipal  corporation, 
the  power  to  levy  a  tax  for  its  pay- 
ment or  the  discharge  of  the  obli- 
gation accompanies  it;  and  this  too, 
without  any  special  mention  that 
such  power  is  granted.  This  arises 
from  the  fact  that  such  corporations 
seldom  possess — so  seldom,  indeed, 
as  to  be  exceptional — any  means  to 
discharge  their  pecuniary  obliga- 
tions except  by  taxation." 

Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 
655;  Quincy  v.  Jackson,  113  U.  S. 
332;  Ex  parte  Parsons,  1  Hughes, 
282,  Fed.  Cas.  No.  10,774;  City  of 


698 


PUBLIC  REVENUES. 


§      05a 


(a)  Of  judgments.  So  the  payment  of  a  judgment  secured  by 
due  process  of  law  against  the  corporation  is  considered  a  public 
purpose  and  not  open  to  objection.  As  the  only  method  possessed 
by  public  corporations  for  raising  revenues  is  the  levying  of  taxes 
in  the  manner  provided  by  law,  the  levy  and  collection  for  this 
specific  purpose  will  not  be  considered  invalid,49  and  if  officials 


Cleveland  v.  United  States  (C.  C. 
A.)  Ill  Fed.  341.  Where  a  munic- 
ipal corporation  is  authorized  to 
contract  debts  when  no  mode  for 
their  payment  is  prescribed  or  pro- 
vided, the  authority  to  levy  a  tax 
for  such  purpose  will  be  implied. 

Nougues  v.  Douglass,  7  Cal.  65; 
Spring  v.  Collector  of  Olney,  78  111. 
101;  Iowa  R.  Land  Co.  v.  County  of 
Sac,  39  Iowa,  124;  City  of  Aurora  v. 
Lamar,  59  Ind.  400;  Public  School 
Com'rs  v.  Allegany  County  Com'rs, 
20  Md.  449;  Webster  v.  Baltimore 
County  Com'rs,  51  Md.  395;  Raton 
Waterworks  Co.  v.  Town  of  Raton, 
9  N.  M.  70,  49  Pac.  898.  The  pay- 
ment of  a  debt  contracted  for  a 
special  purpose  is  limited  to  the 
funds  derived  from  a  tax  levy  as 
authorized  by  law  although  this 
may  be  insufficient. 

Simmons  v.  Wilson,  66  N.  C.  336. 
Constitutional  provisions  do  not  af- 
fect the  power  of  taxation  for  the 
payment  of  debts  contracted  before 
the  adoption  of  such  provisions. 

Slocomb  v.  City  of  Fayetteville, 
125  N.  C.  362;  Voorhies  v.  City  of 
Houston,  70  Tex.  331,  7  S.  W.  679. 
Subsequent  legislation  cannot  af- 
fect prior  debts  or  the  means  ex- 
isting at  the  time  of  contraction  for 
their  payment.  Collier  v.  Peacock 
(Tex.  Civ.  App.)  55  S.  W.  756.  A 
debt  of  a  previous  year  cannot  be 
paid  by  the  tax  levy  of  a  succeeding 
year.  Shepard  v.  City  of  Kaysville, 
16  Utah,  340,  52  Pac.  592. 


*8  State  v.  City  of  New  Orleans, 
23  La.  Ann.  358;  Inhabitants  of  Lex- 
ington v.  Mulliken,  73  Mass.  (7 
Gray)  280;  Attorney  General  v.  City 
of  Salem,  103  Mass.  138;  Com.  v. 
City  of  Pittsburgh,  34  Pa.  496;  State 
v.  City  of  Milwaukee,  25  Wis.  122. 

49  Stryker  v.  Grand  County  Com'rs 
(C.  C.  A.)  77  Fed.  567;  King  v. 
Grand  County  Com'rs  (C.  C.  A.) 
77  Fed.  583;  City  of  Helena  v. 
United  States,  104  Fed.  113.  A  tax 
levied  for  the  payment  of  a  judg- 
ment is  a  special  tax  as  provided  by 
§  4815  of  the  Political  Code  of  Mon- 
tana and  not  one  for  general  mu- 
nicipal or  administrative  purposes 
as  denned  by  §  4814  of  the  same 
code.  Britton  v.  Platte  City,  2  Dill. 
1,  Fed.  Gas.  No.  1,907;  People  v. 
Rio  Grande  County  Com'rs,  7  Colo. 
App.  229,  42  Pac.  1032;  City  Coun- 
cil of  Augusta  v.  Pearce,  79  Ga.  98; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Stan- 
field,  7  Kan.  App.  274;  First  Nat. 
Bank  v.  Morton  County  Com'rs.  7 
Kan.  App.  739,  52  Pac.  580.  The 
obligation  to  pay  a  judgment  held 
a  continuing  one. 

Shippy  v.  Wilson,  90  Mich.  45,  51 
N.  W.  353;  Whitney  v.  Village  of 
Hudson,  69  Mich.  189;  State  v. 
Clay  County,  46  Mo.  231;  Custer 
County  v.  Chicago,  B.  &  Q.  R.  Co., 
62  Neb.  657,  87  N.  W.  341.  A  levy, 
however,  for  the  payment  of  a  judg- 
ment where  none  exists  is  invalid. 
United  States  Trust  Co.  v.  Ter.,  10 
N.  M.  416,  62  Pac.  987;  Brown  r. 


TAXATION. 


699 


refuse  to  perform  their  duty  in  this  respect,  they  can  be  com- 
pelled by  mandamus  or  other  proper  proceedings50  unless  the  to- 
tal tax  levy  is  then  at  the  full  limit  fixed  by  law.51 

(b)  Of  bonds  and  interest.  Where  the  express  power  has  been 
given  a  public  corporation  to  issue  bonds,  the  implied  power  fol- 
lows to  levy  taxes  for  their  payment  in  the  manner  provided  by 
law,52  or  for  the  payment  of  interest,  upon  indebtedness  whether 


Assessors  of  Railway,  51  N.  J.  Law, 
27y,  17  Atl.  122;  City  of  Sherman  v. 
Langham  (Tex.)  40  S.  W.  140;  State 
v.  City  of  Madison,  15  Wis.  33.  An 
act  of  the  legislature  is  unconsti- 
tutional which  forbids  a  city  from 
levying  taxes  to  pay  judgments 
against  it.  Grand  Island  &  N.  W. 
R.  Co.  v.  Baker,  6  Wyo.  369,  34  L. 
R.  A.  835. 

so  United  States  v.  City  of  Key 
West  (C.  C.  A.)  78  Fed.  88.  "It  is 
not  against  justice  or  good  con- 
science that  a  municipal  corporation 
should  be  given  power  to  pay,  jn  the 
only  way  it  can  pay,  a  debt  which 
it  had  been  given  power  to  lawfully 
contract.  The  relator's  judgment 
debt  springs  out  of  a  contract  which 
the  judgment  conclusively  evidences 
the  city  had  lawfully  made  with 
him.  We  therefore  conclude  that 
under  the  act  of  1895,  a  special  levy 
may  be  made  by  the  city  of  Key 
West  for  payment  of  interest  on  its 
debt,  and  for  sinking  fund,  to  meet 
the  principal  of  its  debt,  and  that 
it  is  thus  charged  with  the  duty  to 
pay  the  relator's  judgment,  which 
duty  can  be  enforced  by  mandamus, 
the  necessary  substitute  for  an  exe- 
cution in  such  cases."  First  Nat. 
Bank  of  Ceredo  v.  Society  for  Sav- 
ings (C.  C.  A.)  80  Fed.  581;  People 
v.  Rio  Grande  County  Com'rs,  7 
Colo.  App.  229,  42  Pac.  1032;  Ster- 
ling School  Furniture  Co.  v.  Harvey, 
45  Iowa,  466;  State  v.  Yellowstone 


County  Com'rs,  12  Mont.  503; "Daw- 
son  County  v.  Clark,  58  Neb.  756, 
79  N.  W.  822;  Sandmeyer  v.  Harris, 
7  Tex.  Civ.  App.  515,  27  S.  W.  284; 
State  v.  City  of  Milwaukee,  25  Wis 
122. 

61  Iowa  R.  Land  Co.  v.  Sac  Coun- 
ty, 39  Iowa,  124;  Sterling  School 
Furniture  Co.  v.  Harvey,  45  Iowa, 
466.  "The  code  provides  that  the 
amount  levied  for  school  house  fund 
shall  not  exceed  ten  mills  on  the 
dollar.  §  1787  provides,  'when  a 
judgment  has  been  obtained  against 
a  school  district  the  board  of  direc- 
tors shall  pay  off  and  satisfy  the 
same  from  the  proper  fund,  by  an 
order  on  the  treasurer.'  It  is  claim- 
ed that  authority  is  given  under  this 
section  to  levy  a  tax  in  addition  to 
the  ten  mills.  *  *  *  It  is  a 
fundamental  principle,  appertaining 
to  the  taxing  power,  that  no  taxes 
can  be  levied  without  express  au- 
thority of  law.  *  *  *  The  na- 
ture of  the  obligation  against  the 
district  is  not  changed  by  being 
put  in  the  form  of  a  judgment. 
*  *  *  The  judgment  order  is,  or 
should  be,  against  the  school  house 
fund  and  can  be  paid  from  no 
other."  But  see  the  case  of  Daw- 
son  County  v.  Clark,  58  Neb.  756,  79 
N.  W.  822,  as  holding  to  the  con- 
trary. Youngerman  v.  Murphy,  107 
Iowa,  686;  Phelps  v.  Lodge,  60  Kan. 
122,  55  Pac.  840. 

"See  §  224,  ante;  Jordan  v.  Cass 


700                                           PUBLIC  REVENUES.  §   3Q5b 

such  accrues  upon  bonds  issued  as  above  or  upon  other  and  gen- 
eral interest  bearing  legal  corporate  indebtedness.53  This  rule  in- 
cludes sinking  fund  provisions.5* 

County,   3   Dill.    185,  Fed.   Cas.   No.  Robertson    v.    Tillman,    39    S.    C. 

7,517.     The  owner  of  bonds  can,  by  298,    17    ri.   E.    678;    Wilson  v.   City 

mandamus,   directed   to   the   proper  Council  of  Florence,  40  S.  C.  426,  19 

authorities,    compel    them    to    levy  S.  E.  4;   City  of  Charlotte  v.  Shep- 

and  collect  the  taxes  authorized  and  ard,  122   N.   C.    602,    29   S.   E.    842; 

necessary   for    the   payment   of   the  City  of  Guthrie  v.  Ter.,  1  Okl.  188, 

bonds.     United    States    v:    Town    of  21    L.     R.    A.     841;     Henderson     v. 

Cicero,  41  Fed.  83;  United  States  v.  Hughes  County,  13  S.  D.  576,  83  N. 

Town  of  Cicero    (C.  C.  A.)    50  Fed.  W.     682.     The     presumption     exists 

147.       A    taxing    district,    however,  that  the  tax  levy  is  for  the  purpose 

cannot  be  compelled  to  levy  taxes  in  of  paying  a  valid  obligation.    Nalle 

excess  of  the  amount  as  limited  by  v.  City  of  Austin   (Tex.  Civ.  App.) 

law.     Town  of  Darlington  v.  Atlan-  21    S.    W.    375;    City   of   Austin    v. 

tic  Trust  Co.  (C.  C.  A.)   78  Fed.  596.  Nalle,  85  Tex.  520,  22  S.  W.  668. 

The  payment  of  bonds  which  are  a  53  United  States  v.  Town  of  Cicero 

general  corporate  obligation  cannot  (C.  C.  A.)  50  Fed.  147;  United  States 

be  limited  to  the  proceeds  of  a  spe-  v.  City  of  Key  West  (C.  C.  A.)  78  Fed. 

cial  tax.  88;  United  States  v.  Village  of  Kent, 

First  Nat.  Bank  of  Ceredo  v.  So-  107   Fed.   190;    Bowen   v.    West,    10 

ciety  for  Savings  (C.  C.  A.)  80  Fed.  Colo.   App.   322;    City  of  Tampa  v. 

581;    Security    Sav.    Bank   &   Trust  Mugge,  40  Fla.  326,  24   So.  489.     A 

Co.  v.  Hinton,  97  Cal.  214;  Davis  v.  tax  levy,  however,  cannot  be  made 

Brace,  82  111.  542.    The  authority  to  to  pay  interest  on  bonds  authorized 

levy  taxes  sufficient  to  pay  the  an-  but    not    yet    issued.     Mclntire    v. 

nual  interest  on  outstanding  bonds  Williamson,  8  Kan.  711,  54  Pac.  928; 

of  the  corporation   is   a  continuing  Louisville  Sinking  Fund  Com'rs    v. 

grant   for    such    purpose    until    the  Grainger,  98  Ky.  319,  32  S.  W.  954; 

bonds  have  been  paid.     Denver  City  City  of  Charlotte  v.  Shepard,  122  N. 

R.   Co.   v.   City   of  Denver,   2   Colo.  C.  602;  Corbett  v.  City  of  Portland, 

App.    34;    Taylor   v.    McFadden,   84  31  Or.  407;   Burnett  Y.  Maloney,  97 

Iowa,   262;    Board   of   Education   of  Tenn.  697,  34  'L.  R.  A.  541;  Nalle  v. 

Hawesville   v.   Louisville,   H.   &   St.  City  of  Austin  (Tex.  Civ.  App.)   42 

L.  R.  Co.,  23  Ky.  L.  R.  376,  62  S.  W.  S.  W.   780.     Where  the  tax  levy  is 

1125;    Covington   Gas   Light   Co.   v.  partly  in  excess  of  the  amount  lim- 

City  of  Covington,  92  Ky.  312;  State  ited  by  law,  the  excess  only  is  void. 

v.  Hannibal  &  St.  J.  R.  Co.,  101  Mo.  Conklin  v.  City  of  El  Paso  (Tex. 

136,   13    S.   W.    505;    Shackelton    v.  Civ.  App.)   44  S.  W.  79.    A  tax  levy 

Town  of  Guttenberg,  39  N.  J.  Law.  to  pay  interest  on  bonds  is  not  void 

660.     The  authority  to  levy  taxes  in  because      insufficient      in      amount, 

excess  of  the  legal  limit  will  not  be  City   of   Jefferson  v.    Marshall   Nat. 

implied  from  a  grant  of  authority  to  Bank,  18  Tex.  Civ.  App.  539,  46  S. 

contract  debts  beyond  that  amount.  W.   97;   Wright  v.   City  of  San  An- 


305d 


TAXATION. 


701 


(c)  Obligatory  payments  on  contracts.     "Where  legal  authority 
exists  to  contract,  unless  some  other  mode  for  raising  funds  with 
which  to  meet  the  contract  obligation  is  provided,  the  implied 
power  exists  for  the  levying  and  collection  of  taxes  for  the  pay- 
ment of  the  debt  which  may  be  created  through  the  carrying  out 
of  the  contract.55 

(d)  The  payment  of  warrants  and  claims.     The  corporate  power 
also  exists  to  levy  taxes  for  the  payment  of  legal  outstanding 
warrants,  and  properly  established  adverse  claims.56 


tonio  (Tex.  Civ.  App.)  50  S.  W. 
406;  Shepard  v.  City  of  Kaysville, 
16  Utah,  340. 

Keystone  Lumber  Co.  v.  Town  of 
Bayfield,  94  Wis.  491,  69  N.  W.  162. 
A  tax  is  invalid  levied  to  pay  inter- 
est on  bonds  deposited  in  escrow 
and  not  yet  delivered  to  the  ulti- 
mate beneficiary.  Bigelow  v.  Town 
of  Washburn,  98  Wis.  553.  A  tax 
cannot  be  levied  for  the  payment  of 
interest,  however,  where  there  is  as 
yet  no  legal  obligation  for  its  pay- 
ment. 

s*  Burlington  Water  Co.  v.  Wood- 
ward, 49  Iowa,  58;  Louisville  Sink- 
ing Fund  Com'rs  v.  Grainger,  98 
Ky.  319;  St.  Louis  County  Com'rs  v. 
Nettleton,  22  Minn.  356;  Newark 
Aqueduct  Board  v.  City  of  Newark, 
50  N.  J.  Law,  126;  Cummings  v. 
Fitch,  40  Ohio  St.  56. 

55  Citizens'  Sav.  &  Loan  Ass'n  v 
City  of  Topeka,  87  U.  S.  (20  Wall.) 
655;  Marks  v.  Purdue  University 
37  Ind.  155;  McGuire  v.  Justices  of 
Owsley  County,  46  Ky.  (7  B.  Mon.) 
340;  Mayfield  Woolen  Mills  v.  City 
of  Mayfield,  22  Ky.  L.  R.  1676,  61  S. 
W.  43;  Burnham  v.  Rogers,  167  Mo. 
17,  66  S.  W.  970;  School  Dist.  of 
Central  City  v.  Chicago,  B.  &  Q.  R. 
Co.,  60  Neb.  454,  83  N.  W.  667; 
Johnston  v.  Cleaveland  County 
Com'rs,  67  N.  C.  101.  Where  there 
has  been  a  failure  to  make  a  tax 


levy  sufficient  for  the  payment  of 
interest  upon  outstanding  bonds, 
the  arrears  cannot  be  paid  by  a  levy 
of  a  rate  sufficient  to  pay  the  whole. 
In  re  Borough  of  Millvale,  162  Pa. 
374;  State  v.  City  of  Milwaukee,  25 
Wis.  122;  McGillivray  v.  Joint 
School  Dist.,  112  Wis.  354,  88  N.  W. 
310,  58  L.  R.  A.  100. 

SG  United  States  v.  Macon  County 
Justices  &  Treasurer,  75  Fed.  259; 
Flemming  v.  Trowsdale  (C.  C.  A.) 
85  Fed.  189;  People  v.  Rio  Grande 
County  Com'rs,  11  Colo.  App.  138, 
52  Pac.  1133;  Vincent  v.  Hinsdale 
County  Com'rs,  12  Colo.  40,  54  Pac. 
393.  County  officials  have  no  pow- 
er to  levy  a  tax  for  the  payment  of 
a  claim  until  it  has  been  reduced  to 
judgment.  West  School  Dist.  of 
Canton  v.  Merrills,  12  Conn.  437; 
Sleight  v.  People,  74  111.  47.  The 
levy  of  taxes  for  the  payment  of  a 
bond  which  has  not  been  established 
as  a  lawful  indebtedness  against  the 
corporation  cannot  be  sustained  as 
being  a  proper  corporate  purpose. 
Fuller  v.  Heath,  89  111.  296;  First 
Nat.  Bank  of  Garden  City  v.  Mor- 
ton County  Com'rs,  7  Kan.  App.  739, 
52  Pac.  580;  Auditor  v.  School  Trus- 
tees of  Frankfort,  81  Ky.  680;  Vose 
v.  Inhabitants  of  Frankfort,  64  Me. 
229;  Wisner  v.  Davenport,  5  Mich. 
501;  State  v.  Clay  County,  46  Mo. 
231;  Bigelow  v.  Town  of  Washburn, 


702 


PUBLIC  REVENUES. 


§   306 


§  306.    Taxation  for  the  support  of  public  schools. 

The  support  and  maintenance  of  public  schools  is  one  of  those 
purposes  as  to  the  public  character  of  which  there  is  no  ques- 
tion, and,  therefore,  within  the  limits  provided  by  law,  the  public 
corporation  has  the  power  to  levy  taxes  for  the  support  of  a 
school  system  of  the  scope  and  efficiency  commensurate  and  pro- 
portionate to  the  size  and  ability  of  the  corporation.57  The  au- 
thority for  this  purpose  must  in  common  with  the  exercise  of 
the  power  be  found  in  some  provision  of  statutory  or  constitu- 
tional law  and  must  be  exercised  by  the  organization  and  in  the 
manner  designated  whether  such  organization  be  a  municipal 
corporation  proper  or  a  subordinate  quasi  one  such  as  a  school 


98  Wis.  553,  74  N.  W.  362.  The 
validity  of  such  claims  will  be  pre- 
sumed in  the  absence  of  contradict- 
ing evidence. 

"  Francis  v.  Southern  R.  Co.,  124 
Ala.  544,  27  So.  22;  Horton  v.  Mo- 
bile School  Com'rs,  43  Ala.  598; 
Jones  v.  State,  17  Fla.  411.  A  statu- 
tory provision  that  commissioners 
may  levy  a  tax  for  school  purposes 
is  mandatory.  Ayers  v.  McCalla,  95 
Ga.  555;  Marks  v.  Purdue  Univer- 
sity, 37  Ind.  155;  Nelson  v.  Town  of 
Homer,  48  La.  Ann.  258;  Newman  T. 
Thompson,  9  Ky.  L.  R.  199,  4  S. 
W.  341.  The  teaching  of  Latin  and 
Grreek  in  a  common  school  does  not 
lustify  an  injunction  to  restrain  the 
sollection  of  taxes  levied  for  the 
lupport  of  such  school.  Cooley, 
Taxation,  119  et  seq.  Perry  v. 
Brown,  21  Ky.  344,  51  S.  W.  457. 
Constitutional  limitations  on  tax 
rates  apply  to  common  school  dis- 
tricts. 

State  v.  City  of  New  Orleans,  23 
La.  Ann.  358;  State  v.  Graham,  25 
La.  Ann.  440.  Neither  appropria- 
tions of  public  moneys  can  be  made 
nor  taxes  imposed  for  the  support 
»f  an  institution  of  learning  which 
,s  not  within  the  constitutional 


meaning  a  public  institution.  Such 
an  institution  is  one  controlled  by 
the  state  through  its  agents  and  in 
which  the  state  has  a  permanent  in- 
terest. Gushing  v.  Inhabitants  of 
Newburyport,  51  Mass.  (10  Mete.) 
508;  State  v.  Hannibal  &  St.  J.  R. 
Co.,  135  Mo.  618;  State  v.  Vaughan, 
99  Mo.  332,  12  S.  W.  507;  Piper  v. 
Moulton,  72  Me.  155;  State  v.  City  of 
Omaha,  39  Neb.  745,  58  N.  W.  442; 
Board  of  Education  of  Elizabeth  v. 
Sheridan,  42  N.  J.  Law,  64;  Reid  v. 
Wiley,  46  N.  J.  Law,  473. 

Holt  v.  Town  of  Antrim,  64  N.  H. 
284,  9  Atl.  389.  Taxes  cannot  be 
levied  for  the  construction  of  a 
school  building  to  be  leased  to  a  cor- 
poration for  school  purposes.  The 
test  of  a  public  use  is  not  the  right 
of  enjoying  the  property  wholly  at 
the  public  expense  but  a  common 
right  free  from  discrimination. 
Com.  v.  Shaw,  96  Pa.  268;  Kerr  v. 
Woolley,  3  Utah,  456;  Grand  Island 
&  N.  W.  R.  Co.  v.  Baker,  6  Wyo. 
369,  34  L.  R.  A.  835;  Curtis'  Adm'r 
v.  Whipple,  24  Wis.  350.  An  act 
authorizing  the  levy  of  a  tax  for  the 
benefit  of  a  private  educational  in- 
stitution is  invalid. 


§   306                                                TAXATION.  703 

district.58  Subordinate  governmental  agencies  are  usually  con- 
sidered, in  this  respect,  political  or  municipal  organizations  pos- 
sessing the  power  to  levy  taxes  for  school  purposes  as  coming 
within  the  grant  of  a  general  power  of  taxation  for  local  or  com- 
munity purposes.59 

ss  Cairo  &  F.  R.  Co.  v.  Parks,  32  purposes.    Board    of    Education    of 

Ark.    131;    Worthen   v.    Badgett,   3*2  Bladen    County    v.    Bladen    County 

Ark.  496;   Shaw  v.  Lockett,  14  Colo.  Com'rs,  111  N.  C.  578;   School  Dist. 

App.    413,    60    Pac.    363;     State    v.  of    Erie    v.     Smith,    195    Pa.    515; 

L'Engle,    40    Fla.    392,    24    So.    539;  Mitchell  v.  Fox,  73   Tenn.    (5   Lea) 

Richards  v.  Lyon  County  Sup'rs,  69  420;    Werner   v.    City   of   Galveston 

Iowa,    612;     Wood    v.    Farmer,    69  (Tex.)   7  S.  W.  726;   Muller  v.  City 

Iowa,  533;    State  v.  Addis,  59  Kan.  of   Denison   (Tex.  Civ.  App.)    21   S. 

762,   54  Pac.  1065;    Marion  &  M.  R.  W.  391,  following  Lufkin  v.  City  of 

R.  Co.  v.  Alexander,  63  Kan.  72,  64  Galveston,   63   Tex.   438;    Kinney   v. 

Pac.   978;    Marshall  v.   Donovan,   73  Zimpleman,   36   Tex.   554;    Willis   v. 

Ky.    (10   Bush)    681;    Tate  v.  Board  Owen,  43  Tex.  41;   City  of  El  Paso 

of  Trustees  of  Erlanger  School  Dist.,  v.    Conklin,   91    Tex.    537,   44    S.  W. 

20  Ky.   L.    R.    1370,    49   S.   W.    337;  988;   City  of  Ft.  Worth  v.  Davis,  57 

Common  School  Dist.  v.  Garvey,  80  Tex.   225;   Robertson  v.  Preston,  97 

Ky.  159.    A  mere  irregularity  does  Va.   296,  33  S.  E.   618;   Washington 

"not  void  a  school  tax  properly  vot-  County  Sup'rs  v.  Saltville  Land  Co., 

ed."  99  Va.  640,  39  S.  E.  704. 

State  v.  Board  of  Liquidation,  29  69  Horton  v.  Mobile  School  Com'rs, 
La.  Ann.  77;  Nelson  v.  Town  of  43  Ala.  598;  Opinion  of  the  Justices, 
Homer,  48  La.  Ann.  258.  A  mu-  67  Me.  582;  Shepardson  v.  Gil- 
nicipal  corporation  cannot,  under  lett,  133  Ind.  125,  31  N.  E.  788; 
its  general  welfare  clause,  levy  a  Elkin  v.  Deshler,  25  N.  J.  Law, 
tax  for  school  purposes.  Stuart  v.  (1  Dutch.)  177;  Landis  v.  Ash- 
School  Dist.  No.  1,  30  Mich.  69;  worth,  57  N.  J.  Law,  509,  31  Atl. 
Weston  Lumber  Co.  v.  Munising  Tp.,  1017.  "The  tax  Is  assailed  upon 
123  Mich.  138,  82  N.  W.  267;  Cur-  the  ground  that  a  school  district  is 
ryer  v.  Merrill,  25  Minn.  1;  Put-  not  a  political  division  of  the  state 
nam  v.  City  of  St.  Paul,  75  Minn,  possessing  powers  of  local  govern- 
514,  78  N.  W.  90;  State  v.  Missouri  ment,  and,  therefore,  taxes  for  pub- 
Pac.  R.  Co.  (Mo.)  6  S.  W.  862;  In  re  lie  purposes  cannot  be  levied  exclu- 
Powers,  52  Mo.  218;  State  v.  City  of  sively  upon  the  persons  and  proper- 
Omaha,  7  Neb.  267;  Lee  v.  School  ty  within  it.  This  contention  seems 
Dist.  No.  i,  36  N.  J.  Eq.  (9  Stew.)  to  us  not  well  founded.  School 
581;  People  v.  Allen,  42  N.  Y.  404;  districts  are  formed  for  the  purpose 
Rigsbee  v.  Town  of  Durham,  99  N.  of  aiding  in  the  exercise  of  that 
C.  341,  6  S.  E.  64.  governmental  function  which  re- 
Lane  v.  btanly,  65  N.  C.  153.  lates  to  the  education  of  children. 
Townships  in  North  Carolina  have  and  to  that  end  the  legal  voters  of 
no  power,  either  constitutional  or  each  district  are  intrusted  with  spe- 
statutory,  to  levy  a  tax  for  school  cine  powers  of  local  government  and 


704 


PUBLIC  REVENUES. 


§   307 


§  307.    School  taxes;  amount  required. 

The  amount  or  rate  which  school  authorities  may  levy  for  edu- 
cational purposes  must  come  within  the  common  limit  pre- 
scribed by  law00  if  in  excess  of  that  limit,  the  proceedings  and 
tax  usually  will  be  invalid  only  as  to  the  excess.61 

The  authority  for  the  levy  of  the  tax  may  use  general  language 
and  the  question  can  then  be  raised  whether  certain  uses  or 
purposes  come  within  the  meaning  of  such  general  language. 
The  language  usually,  employed  is  the  phrase  "school  purposes.'1 
The  purchase  and  maintenance  of  a  library  for  the  use  of  the 
school  does  not  ordinarily  come  within  its  meaning.62 


the  trustees  whom  they  elect  are 
made  a  body  corporate  to  represent 
the  district  and  its  inhabitants. 
These  characteristics  mark  them  as 
political  organizations."  Lydecker 
v.  Englewood  Tp.  Com'rs,  41  N.  J. 
Law,  154;  State  v.  Bremond,  38  Tex. 
116. 

eo  United  States  v.  Independent 
School  Dist.,  20  Fed.  294.  Manda- 
mus will  lie  to  compel  the  levying 
of  the  full  amount  provided  by  law 
if  necessary.  Griggs  v.  St.  Croix 
County,  27  Fed.  333;  Smith  v.  Speed, 
50  Ala.  276;  People  v.  City  of 
Bloomington,  130  111.  406;  St.  Louis, 
R.  I.  &  C.  R.  Co.  v.  People,  177  111. 
78.  Under  Kurd's  Rev.  St.,  c.  122, 
art.  8,  §  1,  the  amount  required 
for  school  purposes  can  be  separate- 
ly stated,  but  the  provision  is  man- 
datory. Shepardson  v.  Gillette,  133 
Ind.  125,  31  N.  E.  788;  State  v. 
Ewing,  22  Kan.  708;  Glass  v.  Bill- 
ings, 59  Kan.  776,  53  Pac.  125;  Clark 
v.  Deveraux,  8  Kan.  App.  341,  57 
Pac.  40.  When  within  the  limit  fix- 
ed by  law,  the  court  will  not,  ordi- 
narily, interfere  with  the  levy  of  a 
certain  rate  or  arbitrarily  hold  that 
it  is  oppressive  or  illegal.  Marion 
&  M.  R.  Co.  v.  Alexander,  63  Kan.  72, 
64  Pac.  978;  Collins  v.  Henderson, 


74  Ky.  (11  Bush)  74;  Board  of  Edu- 
cation v.  General  Council  of  Coving- 
ton.  20  Ky.  L.  R.  289,  45  S.  W.  1045; 
Brown  v.  Board  of  Education  of 
Newport,  22  Ky.  483,  57  S.  W.  612; 
Board  of  County  School  Com'rs  v. 
Gantt  (Md.)  21  Atl.  548;  Alvord  v. 
Collin,  37  Mass.  (20  Pick.)  418; 
Cowart  v.  Taxworth,  67  Miss.  322,  7 
So.  350;  State  v.  Phipps,  148  Mo. 
31,  49  S.  W.  865;  Kansas  City,  Ft. 
S.  &  M.  R.  Co.  v.  Chapin,  162  Mo. 
409,  62  S.  W.  1000;  State  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  75  Mo.  526;  Hil- 
burn  v.  St.  Paul,  M.  &  M.  R.  Co.,  23 
Mont.  229;  Dawson  County  v.  Clark, 
58  Neb.  756;  Hall  v.  Selectmen  of 
Somersworth,  39  N.  H.  511;  Jodon 
v.  City  of  Brenham,  57  Tex.  655; 
Winifrede  Coal  Co.  v.  Board  of  Edu- 
cation of  Cabin  Creek,  47  W.  Va. 
132,  34  S.  E.  776;  State  v.  Lamont, 
86  Wis.  563. 

ei  Chicago  &  A.  R.  Co.  v.  People, 
147  111.  196;  Chicago  &  A.  R.  Co.  v. 
People,  155  111.  276;  Wabash  R.  Co. 
v.  People,  187  111.  289. 

«2  Taylor  v.  Wayne  Dist.  Tp..  25 
Iowa,  448;  Manning  v.  Van  Buren 
Dist.  Tp.,  28  Iowa,  332.  Where  the 
law  requires  a  vote  of  the  electors, 
an  indebtedness  cannot  be  incurred 
by  the  school  directors  before  a  tax 


§  307 


TAXATION. 


705 


A  tax  for  "heating  and  repairing  purposes"  has  been  held  a 
tax  for  school  and  not  for  building  purposes.63 

The  construction  of  new  buildings  is  not  ordinarily  a  "school 
purpose"  but  there  must  be  special  authority  given  for  such  use 
of  public  moneys  or  the  levy  of  taxes  for  this  purpose.64  The 


for  that  purpose  has  been  voted. 
The  court  say:  "Section  seven, 
paragraph  five,  empowers  the  elec- 
tors, when  assembled  in  district 
township  meeting,  to  vote  a  tax  for 
certain  purposes,  among  others  'for 
the  payment  of  any  debts  contracted 
for  the  erection  of  school  houses, 
and  for  procuring  district  libraries 
and  apparatus  for  the  schools.' 
This  section  contemplates  that  a  tax 
may  be  levied  for  the  purchase  of 
apparatus.  It  is  not  authority  for 
the  purchase  of  apparatus  before 
the  tax  is  voted,  thus  authorizing 
the  creation  of  an  indebtedness  to 
be  paid  by  a  tax  afterward  to  be 
voted.  *  *  *  It  contemplates 
that  contracts  may  be  made  by  the 
proper  officers  for  the  purchase  of 
apparatus,  after  a  tax  has  been 
voted  for  that  purpose.  This  is 
made  plain  by  section  twenty  which 
provides  that  the  directors  shall 
make  all  contracts,  purchases  and 
payments  necessary  to  carry  out 
any  vote  of  the  district.  We  find 
no  provision  clothing  them  with 
power  to  make  contracts  or  pur- 
chases of  school  apparatus  other- 
wise than  as  is  provided  in  this  sec- 
tion. It  is  obvious,  therefore,  that 
no  such  contract  can  be  made  by 
them  unless  authorized  by  a  vote  of 
the  electors."  Board  of  Education 
of  Covington  v.  Board  of  Trustees, 
24  Ky.  L.  R.  98,  68  S.  W.  10. 

es  Elberg  v.  San  Luis  Obispo  Coun- 
ty, 112  Cal.  316;  Chicago  &  A.  R.  Co. 
v.  People,  155  111.  276;  State  v.  Folk, 
45  S.  C.  491;  Board  of  Education  of 


Ogden  v.  Brown,  12  Utah,  251,  con- 
struing such  statutes  in  general. 

e*  Knopf  v.  People,  185  111.  20,  57 
N.  E.  22;  O'Day  v.  People,  171  111. 
293;  Greenwood  v.  Gmelich,  175  I1L 
526;  Cleveland,  C.,  C.  &  St.  L.  R. 
Co.  v.  Randle,  183  111.  364;  Chicago 
&  N.  W.  R.  Co.  v.  People,  184  111. 
240;  Rose  v.  Hindman,  36  Iowa,  160; 
Seaman  v.  Baughman,  82  Iowa,  216, 
47  N.  W.  1091,  11  L.  R.  A.  354; 
Hibbs  T.  Directors  &  Secretary  of 
Adams  Tp.,  110  Iowa,  306,  81  N.  W. 
584,  48  L.  R.  A.  535.  A  vote  to 
levy  a  schoolhouse  tax  may  be  re- 
scinded at  a  subsequent  election 
when  the  tax  has  not  been  certified 
nor  levied  by  the  proper  officers. 

Marble  v.  McKenney,  60  Me.  332. 
A  school  house  cannot  be  erected 
upon  a  lot  other  than  that  legally 
designated  by  the  municipal  officers 
of  the  town.  If  this  is  done,  it  will 
render  a  tax  levied  for  such  pur- 
pose illegal.  Carlton  v.  Newman,  77 
Me.  408.  School  officers  are  limited 
in  their  expenditures  to  the  amount 
furnished  by  a  vote  of  the  electors. 

State  v.  West  Duluth  Land  Co., 
75  Minn.  456,  78  N.  W.  115;  State 
v.  Wabash,  St.  L.  &  P.  R.  Co.,  83 
Mo.  395.  Under  Rev.  St.  §  6880, 
taxes  for  "school  purposes"  cannot 
be  levied  for  building  school  houses 
or  for  paying  indebtedness.  Eiken- 
bary  v.  Porter,  60  Neb.  75;  State  v. 
Westerfield,  24  Nev.  29;  Lee  v.  Trus- 
tees of  School  Dist.  No.  1,  36  N.  J. 
Eq.  (9  Stew.)  581;  Gale  v.  Mead,  4 
Hill  (N.  Y.)  109;  Stevens  v.  Kent, 
26  Vt.  503. 


Abb.  Corp. — 45. 


706 


PUBLIC  REVENUES. 


§  308 


term  is  usually  inclusive  of  all  those  expenditures  which  come 
within  the  phrase  "current  expenses."  The  payment  of  teach- 
ers, the  purchase  of  supplies,  the  payment  of  the  salaries  of  em- 
ployes and  the  maintenance  of  the  school  organization.65 

§  308.    Diversion  of  funds. 

Taxes  as  ordinarily  levied  throughout  the  country  include  spe- 
cific rates  or  amounts  for  specific  purposes.  It  is  a  well  recog- 
nized principle  that  money  raised  in  this  manner  when  diverted 
from  such  use  and  diverted  to  another  will  not  be  then  lost  for 
the  benefit  of  that  special  purpose  for  which  levied.  The  cor- 
poration will  still  be  liable  for  the  expenditure  of  the  specific 
amount  for  such  purpose.6* 


»B  Board  of  Education  of  Wood- 
land v.  Board  of  Trustees,  129  Cal. 
599,  62  Pac.  173.  A  grant  of  author- 
ity to  levy  a  special  tax  "sufficient 
in  amount  to  maintain  a  high 
school"  vests  the  board  of  trustees 
with  an  undisputed  discretion  as  to 
the  rate  of  tax  to  be  levied. 

Richards  v.  Raymond,  92  111.  612; 
Newman  v.  Thompson,  9  Ky.  L.  R. 
199,  4  S.  W.  341;  Gushing  v.  Inhab- 
itants of  Newburyport,  51  Mass.  (10 
Mete.)  508.  The  fact  that  branches 
of  learning  other  than  those  requir- 
ed by  the  revised  statutes  are  taught 
in  a  school  does  not  deprive  it  of  its 
character  as  a  town  school  to  be 
supported  by  public  taxation. 

Putnam  v.  City  of  St.  Paul,  75 
Minn.  514,  78  N.  W.  90.  An  appro- 
priation for  the  payment  of  salaries 
does  not  become  a  trust  fund  for 
the  sole  use  and  benefit  of  teachers 
already  appointed.  Rodman  v. 
Town  of  Washington,  122  N.  C.  39, 
30  S.  E.  118.  Under  Const,  art.  2, 
§  14,  and  art.  7,  §  7,  a  school  tax 
is  not  a  "necessary  expense"  of  a 
town.  Wheeler  v.  Town  of  Alton,  68 
N.  H.  477,  38  Atl.  208. 

«« Maenhaut   v.    City   of  New   Or- 


leans, 2  Woods,  108,  Fed.  Gas.  No. 
8,939,  and  Ranger  v.  City  of  New 
Orleans,  2  Woods,  128,  Fed.  Cas.  No. 
11,564,  hold  that  where  a  municipal 
corporation  is  authorized  to  levy  a 
tax  to  pay  the  interest  on  an  issue 
of  bonds,  the  money  collected  and 
set  apart  for  such  purpose  is  a  trust 
fund  for  the  payment  of  such  inter- 
est and  the  corporation  can  be  re- 
strained from  using  it  for  other  pur- 
poses. 

Vickrey  v.  Sioux  City,  104  Fed. 
164;  Lee  County  v.  Robertson,  66 
Ark.  82,  48  S.  W.  901;  Yankton 
County  v.  Faulk,  1  Dak.  348;  Town 
of  Aurora  v.  Chicago,  B.  &  Q.  R.  Co., 
119  111.  246,  10  N.  E.  27.  If  the  use 
for  which  the  tax  is  raised  is  subse- 
quently held  unlawful,  this  fund 
cannot  be  appropriated  to  other  pur- 
poses. 

President  &  Trustees  of  Rushville 
v.  Town  of  Rushville,  32  111.  App. 
320;  Pennington  v.  Coe,  57  111.  118; 
Toledo,  St.  L.  &  K.  C.  R.  Co.  v. 
Stephenson,  131  Ind.  203,  30  N.  E. 
1082;  Hickman  College  v.  Colored 
Common  School  Dist.  A,  111  Ky. 
944,  65  S.  W.  20;  Board  of  Educa- 
tion of  Covington  v.  Trustees  of 


§  309  TAXATION. 

§  309.     The  construction  of  roads. 


707 


The  construction,  maintenance  or  repair  of  public  highways 
is  considered  such  a  purpose  as  will  authorize  without  question 
the  levy  and  collection  of  road  tax  moneys.67  The  general  prin- 
ciples requiring  uniformity  and  equality  of  operation  apply 
equally  to  laws  imposing  road  taxes68  which  must  also  be  levied 
in  the  manner  and  by  the  board  provided  by  law.69  The  rate  or 


Public  Library,  113  Ky.  234,  68  S. 
W.  10;  State  v.  City  of  New  Orleans, 
106  La.  469,  i.1  So.  55;  Parish  Board 
of  School  Directors  v.  City  of 
Shreveport,  47  La.  Ann.  21;  Port 
Huron  Board  of  Education  v.  Run- 
nels, 57  Mich.  46;  State  v.  Stone,  69 
Miss.  375, 11  So.  4;  School  Dist.  No.  1 
v.  Rhoads,  81  Mo.  473;  Zimmerman 
v.  State,  60  Neb.  633,  83  N.  W.  919; 
School  Dist.  of  Lincoln  v.  Fiske,  61 
Neb.  3,  84  N.  W.  401;  State  v.  Storey 
County  Com'rs,  17  Nev.  96;  City  of 
Hoboken  v.  Ivison,  29  N.  J.  Law  (5 
Dutch.)  65;  Board  of  Education  of 
Plainfield  v.  Sheridan,  45  N.  J.  Law, 
276;  Board  of  Education  of  East  Las 
Vegas  v.  Tafoya,  6  N.  M.  292,  27  Pac. 
616;  City  of  Greensboro  v.  Hodgin, 
106  N.  C.  182;  State  v.  Marietta  & 
N.  G.  R.  Co.,  108  N.  C.  24. 

People  v.  George,  60  Hun,  580, 
14  N.  Y.  Supp.  475.  See  this  case, 
however,  for  the  effect  of  a  change 
of  organization  upon  the  rule  stated 
in  the  text.  Oregon  City  v.  Moore, 
30  Or.  215,  46  Pac.  1017,  47  Pac.  851; 
German  Tp.  School  Dist.  v.  Sangs- 
ton,  74  Pa.  454;  School  Districts  v. 
Edwards,  46  Wis.  150;  State  v.  De 
Lano,  80  Wis.  259. 

67  People  v.  Whyler,  41  Cal.  351; 
San  Luis  Obispo  County  v.  White, 
91  Cal.  432.  A  bridge,  as  defined  by 
the  Political  Code,  §  2618,  is  a  high- 
way and  a  tax  can  be  levied  on  the 
property  within  the  road  district  for 


its  construction.  Commissioners  of 
Highways  of  Goshen  v.  Jackson,  165 
111.  17;  Stone  v.  Woodbury  County, 
51  Iowa,  522;  Hoffman  v.  Lynburn, 
104  Mich.  494;  Herring  v.  Dixon,  122 
N.  C.  420,  29  S.  E.  368;  State  v.  Hay- 
wood  County  Com'rs,  122  N.  C.  812, 
30  S.  E.  352;  Osborne  v.  Mecklen- 
burg County  Com'rs,  82  N.  C.  400; 
Thompson  v."  Fellows,  21  N.  H.  (1 
Fost.)  425;  Bradford  v.  Newport, 
42  N.  H.  338;  Warder  v.  Clark  Coun- 
ty Com'rs,  38  Ohio  St.  639;  Miller  v. 
Hixson,  64  Ohio  St.  39,  59  N.  E. 
749;  City  of  Philadelphia  v.  Field, 
58  Pa.  320.  Construction  of  free 
bridge  authorized.  Com.  v.  Reiter, 
78  Pa.  161;  Smith  v.  Grayson  Coun- 
ty, 18  Tex.  Civ.  App.  153,  44  S.  W. 
921.  Cooley,  Taxation,  p.  130. 

68  West  School  Dist.  v.  Merrills, 
12  Conn.  437;  Haney  v.  Bartow 
County  Com'rs,  91  Ga.  770;  Lima 
v.  McBride,  34  Ohio  St.  338;  Adams 
v.  Hyde,  27  Vt.  221. 

6»  Chicago  &  N.  W.  R.  Co.  v.  Peo- 
ple, 193  111.  594;  Kansas  City,  Ft.  S. 
&  G.  R.  Co.  v.  Scammon,  45  Kan.  481, 
25  Pac.  858;  Hudson  v.  Police  Jury 
of  Claiborne,  107  La.  387,  31  So. 
868;  Parsons  v.  Inhabitants  of  Go- 
shen, 28  Mass.  (11  Pick.)  396;  Stet- 
son v.  Kempton,  13  Mass.  272;  Bur- 
lington &  M.  R.  R.  Co.  v.  Lancaster 
County  Com'rs,  12  Neb.  324;  Hunter 
v.  Justices  of  Campbell  County,  47 
Tenn.  (7  Cold.)  49. 


708 


PUBLIC  REVENUES. 


§  308 


amount  to  be  raised  for  this  special  purpose  may  be  limited.70     If 
one  is  levied  or  raised  in  excess  of  this,  the  same  principle  is  ap- 


70  C.  N.  Nelson  Lumber  Co.  v. 
Town  of  Loraine,  24  Fed.  456;  Peo- 
ple v.  Wilson,  3  111.  App.  368.  The 
term  "road  purposes"  as  used  in 
Rev.  St.  c.  121,  is  a  general  phrase 
and  includes  expenditures  for  the 
payment  of  damages  arising  from 
opening  and  laying  out  roads,  the 
purchase  of  materials  and  road  ma- 
chinery. 

Peoria  &  P.  U.  R.  Co.  v.  People, 
144  111.  458,  33  N.  E.  873;  Chicago 
&  A.  R.  Co.  v.  People,  190  111.  20; 
Gosnell  v.  City  of  Louisville,  20  Ky. 
L.  R.  519,  46  S.  W.  722.  The  pre- 
sumption, exists  that  the  tax  levy 
for  road  purposes  is  within  the  con- 
stitutional limit. 

Ada  Tp.  v.  Grove,  114  Mich.  77,  72 
N.  W.  35;  State  v.  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.,  145  Mo.  596.  Road 
taxes  are  county  taxes  within  the 
constitution,  art.  10,  §  11,  limiting 
the  rate  of  taxation  levied  for  such 
purposes.  Libby  v.  State,  59  Neb. 
264;  Norcross  v.  Veal,  51  N.  J.  Law, 
87,  16  Atl.  159;  Herring  v.  Dixon, 
12i;  N.  C.  420,  29  S.  E.  368;  Southern 
R.  Co.  v.  Kay,  62  S.  C.  28;  Jefferson 
Iron  Co.  v.  Hart,  18  Tex.  Civ.  App. 
525,  45  S.  W.  321;  Bertha  Zinc  Co. 
v.  Pulaski  County  Sup'rs,  88  Va.  371. 

Kane  v.  School  Dist,  52  Wis.  502; 
\vebster  v.  Douglas  County,  102  Wis. 
181,  77  N.  W.  885,  78  N.  W.  451. 
'The  crucial  question  in  this  case 
is  whether  the  county  could  legally 
spend  more  than  $8,000  in  one  fiscal 
year  upon  highways  under  the  pro- 
visions of  section  1308,  Rev.  St. 
1878.  This  section,  after  providing 
that  county  boards  may  adopt  high- 
ways or  parts  of  highways  as  county 
roads,  or  may  designate  highways  or 


parts  of  highways  for  the  purpose 
of  spending  money  in  their  repair 
without  adopting  them  as  county 
roads,  then  provides  that  any  coun- 
ty board  'may  annually  levy,  on  the 
taxable  property  of  the  county,  a 
county  road  tax  not  exceeding  eight 
thousand  dollars  which  shall  be  ex- 
pended under  their  direction  in 
mailing  culverts,  grading,  graveling, 
ditching  or  otherwise  improving 
such  highways.'  It  seems  very 
manifest  to  us  from  a  careful  read- 
ing of  the  section  that  the  amount 
of  the  tax  fixes  the  amount  which 
may  be  expended  in  any  one  year. 
The  amount  is  plainly  limited  to  the 
amount  previously  raised  by  the 
tax.  The  board  may  first  raise  a 
sum  and  then  spend  it.  *  *  *  In 
the  present  case,  the  board  raised 
$8,000  by  tax  levied  in  November, 
1893,  and  spent  the  entire  sum  be- 
fore the  5th  of  June,  1894.  Then 
they  proposed  to  spend  $8,000  more 
and  pay  for  the  work  temporarily 
out  of  the  normal  school  fund,  and 
finally  out  of  the  levy  to  be  made 
in  November,  1894.  This  they  had 
no  power  nor  right  to  do.  They, 
however,  proceeded  not  in  the  man- 
ner required  by  section  1309  but  in 
a  lawless  and  irregular  manner  to 
parcel  out  $2,000  to  each  of  the 
chairmen  of  the  four  county  towns, 
and  to  allow  each  chairman  to 
spend  his  portion  as  he  chose.  To 
say  that  this  entire  proceeding  was 
irregular  and  illegal  is  to  speak  of 
it  very  mildly.  *  *  *  The  tem- 
porary injunctional  order,  in  no  un- 
certain terms,  prevented  the  board 
from  carrying  out  the  work  which 
had  been  illegally  commenced  un- 


309 


TAXATION. 


709 


plied  as  in  the  cases  of  a  similar  nature  and  the  proceedings  will 
be  held  invalid  only  as  to  the  excess.71  The  construction  and 
maintenance  of  highways  must  be  distinguished  from  the  making 
of  a  "local  improvement"  so  called.  The  cost  of  local  improve- 
ments is  usually  met  by  local  assessments  which,  as  to  the  basis  of 
levy  and  collection,  differ  radically  from  taxes.72  The  legality  of 


der  the  resolution  of  June  5th. 
*  *  *  The  plain  fact  is  that  the 
acts  of  the  public  officials  and  con- 
tractors, after  the  injunctional  or- 
der of  August  7  was  issued  and  serv- 
ed upon  them,  in  proceeding  with 
general  road  work,  and  in  issuing 
orders  to  pay  for  the  work  and  in 
actually  paying  for  a  good  part  of 
it,  were  and  are  utterly  indefensi- 
ble. They  were  deliberate  con- 
tempts of  court."  Overruling  Har- 
rison v.  Milwaukee  County  Sup'rs, 
51  Wis.  645.  See,  also,  Mueller  v. 
Town  of  Cavour,  107  Wis.  599,  83  N. 
W.  944;  Frederick  v.  Douglas  Coun- 
ty, 96  Wis.  411. 

71  Peninsular  Sav.  Bank  v.-  Ward, 
118  Mich.  87,  76  N.  W.  161,  79  N.  W. 
911.  The  excess  for  the  purpose  of 
sustaining  its  validity  will  not  be 
considered  as  having  been  levied  for 
a  separate  purpose.  The  court  say: 
"The  statute  restricts  the  labor  to 
one  half  day  on  $100  valuation  and 
the  money  tax  to  fifty  cents  upon 
such  valuation.  Section  1327  pro- 
vides that  a  majority  of  the  electors 
present  may  determine  the  amount 
of  labor  and  money  tax  within  these 
bounds.  As  has  been  seen,  the  elec- 
tors voted  a  money  tax  of  one  per- 
cent for  highway  purposes.  It  is 
urged  that  this  was  no  more  than 
it  was  within  their  power  to  raise, 
and  that  one-half  of  it  should  be 
treated  as  a  vote  of  highway  labor, 
and  the  remainder  a  money  tax  in 
which  case  neither  would  be  exces- 
sive. The  record  shows  that  the  en- 


tire amount  was  spread  and  if  we 
might  assume  that  no  labor  was 
done  or  commuted,  which  is  improb- 
able, we  should  still  be  confronted 
by  the  fact  that  the  vote  shows 
that  the  electors  directed  that 
amount  to  be  spread  upon  the  roll. 
We  cannot  conclude  therefore,  that 
any  part  of  it  was  intended  as  a  vote 
of  highway  labor.  It  is  also  sug- 
gested that  we  may  assume  that  a 
part  of  the  amount  spread  was  a  tax 
authorized  by  the  board  of  super- 
visors but  we  think  in  view  of  the 
vote  of  the  township,  that  the  pre- 
sumption is  to  the  contrary." 

72  Barrow  v.  Hepler,  34  La.  Ann. 
362;  Rogers  v.  City  of  St.  Paul,  22 
Minn.  494-507.  "By  common  usage, 
especially  as  evidenced  by  the  prac- 
tice of  courts  and  text  writers,  the 
term  'local  improvements'  is  em- 
ployed as  signifying  improvements 
made  in  a  particular  locality,  by 
which  the  real  property  adjoining 
or  near  such  locality  is  specially 
benefited.  *  *  *  An  examination 
of  these  authorities  will  also  show 
that  the  term  'local  improvements' 
or  terms  synonymous,  are  more 
commonly  applied  to  the  grading, 
curbing  and  paving  of  streets  than 
to  any  other  class  of  improvements. 
Our  constitution  is  to  be  presumed 
to  have  employed  the  term  'local 
improvements'  in  the  sense  which  is 
thus  attributed  to  it  by  common 
usage." 

State  v.  Reis,  38  Minn.  371;  Sperry 
v.  Flygare,  80  Minn.  325,  49  L.  R.  A. 


710 


PUBLIC  REVENUES. 


§   310 


a  local  assessment  is  based  upon  the  doctrine  that  the  improve- 
ment will  result  in  a  local  and  special  advantage  to  specific  prop- 
erty, which  should,  therefore,  pay  the  cost  of  such  improvement, 
benefit  or  advantage.  The  community  at  large  receiving  no 
special  benefit  should  not  be  required  to  pay  its  cost.  The  sub- 
ject of  local  assessments  will  be  considered  later  in  this  chapter.78 


The  levy  of  taxes  for  the  establishment  or  maintenance 
of  plants  for  the  supply  of  water  and  light. 


§  310. 

The  purposes,  namely,  a  supply  of  water74  and  light,75  indi- 


757.  A  rural  highway  is  not  a  local 
improvement  and  local  assessments 
cannot,  therefore,  be  imposed  on 
abutting  property  to  pay  for  its  con- 
struction or  improvement.  The 
court  say:  "Damages  for  laying  out 
such  roads  [rural  highways]  have 
been  paid  from  the  public  treasury, 
and  at  no  time  have  farm  lands  been 
assessed  therefor,  any  further  than 
in  assessing  damages,  benefits  to  the 
land  through  which  the  highway 
passes  have  been  deducted  from  the 
amount  awarded  to  the  landowner. 
But  benefits  accruing  to  the  public 
generally  have  never  been  considered 
or  allowed  in  reduction  of  individ- 
ual damages.  Until  the  passage  of 
this  act  a  rural  highway  was  not 
understood  to  come  within  the 
meaning  or  to  constitute  a  local  im- 
provement and  if  sustained  it  will 
completely  change  the  method  here- 
tofore in  existence  and  employed 
for  laying  out  and  establishing  such 
road.  The  term  'local  improve- 
ments' has  been  most  generally  used 
and  employed  in  reference  to  im- 
provements by  municipal  corpora- 
tions proper,  rather  than  to  coun- 
ties and  towns,  which  are  only 
quasi  municipal  corporations." 

"  Chapter  VII,  subd.  II.  §§  337  et 
seq. 


™  City  of  Cleveland  v.  United 
States,  111  Fed.  341.  To  furnish  a 
sufficient  supply  of  water  and  light 
for  public  uses  does  not  require  an 
express  grant  of  the  power  of  taxa- 
tion for  these  purposes.  Holt  v. 
City  of  Birmingham,  111  Ala.  369; 
Bowen  v.  West,  10  Colo.  App.  322,  50 
Pac.  1085;  Frederick  v.  City  Council 
of  Augusta,  5  Ga.  561.  The  rule  ap- 
plied to  the  right  of  a  municipal 
corporation  to  construct  a  canal  for 
the  purpose  of  securing  a  supply  of 
water  for  public  use  where  the  city 
council  was  vested  with  "full  power 
and  authority  to  make  such  assess- 
ments on  the  inhabitants  of  the  city 
or  those  who  hold  taxable  property 
within  the  same  for  the  safety,  ben- 
efit, convenience  and  advantage  of 
the  said  city  as  shall  appear  to  them 
expedient." 

Taylor  v.  McFadden,  84  Iowa,  262. 
"Appellant's  further  contention  is 
that  municipal  corporations  have 
no  authority  to  levy  taxes  except  as 
expressly  conferred  by  statute  and 
tuat  no  authority  is  given  to  levy  a 
special  tax  for  the  erection  of  wa- 
terworks. In  Jeffries  v.  Lawrence, 
42  Iowa,  505,  it  is  said:  'The  doc- 
trine everywhere  prevails  that  no 
taxes  can  be  levied  by  municipal  cor- 
porations in  the  absence  of  author- 


310 


TAXATION. 


711 


cated  in  the  title  of  this  section,  have  been  repeatedly  held  of 
such  a  character  as  to  warrant  not  only  the  expenditure  of  public 
money  but  the  levy  of  taxes  for  such  purpose.  Public  corpora- 
tions may  for  these  purposes  incur  indebtedness,  expend  moneys 


ity  conferred  by  the  state,  if  not 
in  terms  yet  by  plain  and  unmis- 
takable implication.'  We  think  the 
authority  given  to  such  corporations 
to  erect  waterworks,  by  plain  and 
unmistakable  implication,  carries 
with  it  the  power  to  levy  a  tax  for 
that  purpose,  provided  such  levy 
does  not  exceed  the  limitation." 

Youngerman  v.  Murphy,  107  Iowa, 
686,  76  N.  W.  648;  Hines  v.  City  of 
Leaven  worth,  3  Kan.  186;  Manley 
v.  Emlen,  46  Kan.  655;  Waters  v. 
Town  of  Laurel,  93  Md.  221,  48  Atl. 
499;  People  v.  Mahaney,  13  Mich. 
481;  Monroe  Water  Co.  v.  Heath,  115 
Mich.  277,  73  N.  W.  234. 

State  v.  City  of  Kearney,  49  Neb. 
325.  An  act  authorizing  the  levy  of 
taxes  for  a  supply  of  water  cannot 
impair  or  affect  the  obligation  of 
any  pre-existing  contract.  The  pow- 
er of  taxation  existing  for  the  pur- 
pose of  meeting  a  contract  obliga- 
tion has  been  repeatedly  held  a  con- 
tract right  which  cannot  be  impair- 
ed by  the  passage  of  subsequent 
legislation.  Brown  v.  City  of  Con- 
cord, 56  N.  H.  375;  Van  Giesen  v. 
Inhabitants  of  Bloomfield,  47  N.  J. 
Law,  442;  Hackensack  Water  Co.  v. 
City  of  Hoboken,  51  N.  J.  Law,  220; 
Conger  v.  Inhabitants  of  Summit 
Tp.,  52  N.  J.  Law,  483;  Johnson  v. 
Borough  of  Asbury,  58  N.  J.  Law, 
604;  Raton  Waterworks  Co.  v. 
Town  of  Raton,  9  N.  M.  70,  49  Pac. 
898.  The  right  of  taxation  for  such 
a  purpose,  however,  is  limited  to 
that  authorized  by  law.  Bank  of 
Rome  v.  Village  of  Rome,  18  N.  Y. 


38;  People  v.  Common  Council  of 
Long  Island  City,  76  N.  Y.  20;  Thrift 
v.  Commissioners  of  Town  of  Eliza- 
beth City,  122  N.  C.  31,  30  S.  E.  349, 
44  L.  R.  A.  427. 

City  of  Charlotte  v.  Shepard,  120 
N.  C.  411.  The  construction  of  city 
waterworks,  however,  is  not  a 
"necessary  expense"  within  the  con- 
stitution of  North  Carolina,  art.  7,  § 
7,  which  provides  that  a  tax  ex- 
cept for  necessary  city  expenses 
cannot  be  levied  except  upon  a  vote 
of  a  majority  of  its  qualified  elec- 
tors. See,  also,  as  holding  the 
same,  Thrift  v.  Commissioners  of 
Town  of  Elizabeth  City,  122  N.  C. 
31,  30  S.  E.  349,  44  L.  R.  A.  427, 
and  Edgerton  v.  Goldsboro  Water 
Co.,  126  N.  C.  93,  35  S.  E.  243. 

Hill  v.  Higdon,  5  Ohio  St.  243; 
Maloy  v.  City  of  Marietta,  11  Ohio 
St.  636;  Stiles  v.  Jones,  3  Yeates 
(Pa.)  491;  City  of  Allentown  v. 
Henry,  73  Pa.  404;  Van  Sicklen  v. 
Town  of  Burlington,  27  Vt.  70;  Gay 
v.  City  of  New  Whatcom,  26  Wash. 
389,  67  Pac.  88;  Foster  v.  City  of 
Kenosha,  12  Wis.  616;  Dean  v. 
Borchsenius,  30  Wis.  236;  Oconto 
City  Water  Supply  Co.  v.  City  of 
Oconto,  105  Wis.  76. 

"s  Stewart  v.  Kansas  Town  Co., 
50  Kan.  553;  Hequembourg  v.  City 
of  Dunkirk,  49  Hun,  550,  2  N.  Y. 
Supp.  447;  In  re  Village  of  Le  Roy, 
35  App.  Div.  177,  55  N.  Y.  Supp.  149; 
State  v.  City  of  Toledo,  48  Ohio  St. 
112,  26  N.  E.  1061,  11  L.  R.  A.  729; 
Western  Sav.  Fund  Soc.  v.  City  of 
Philadelphia,  31  Pa.  175. 


712 


PUBLIC  REVENUES. 


§   311 


already  raised  or  provide  for  the  future  expenditure  of  moneys 
by  the  levy  of  taxes. 

§  311.    The  exercise  of  the  power. 

A  public  corporation  or  the  sovereign  itself  can  levy  taxes  only 
upon  the  persons  and  property  within  its  jurisdiction.  A  per- 
sonal tax  upon  nonresidents  or  upon  their  personal  property  is 
incapable  of  enforcement;76  neither  can  a  public  corporation 
levy  a  tax  upon  real  property  lying  beyond  the  corporate  limits.77 
The  converse  of  the  rule  thus  stated  is  unquestionably  true  and 
all  persons  or  property  within  the  limits  of  a  taxing  district  are 


'•City  of  St.  Louis  v.  Wiggins 
Ferry  Co.,  78  U.  S.  (11  Wall.)  423; 
In  re  Mahoney's  Estate,  133  Cal. 
180,  65  Pac.  389.  The  rule,  however, 
does  not  apply  to  an  inheritance  tax. 
Nonresident  beneficiaries  are  sub- 
ject to  the  tax  to  an  equal  extent 
with  those  residing  within  the  limits 
of  a  taxing  district.  City  of  Au- 
gusta v.  Dunbar,  50  Ga.  387;  City 
of  New  Albany  v.  Meekin,  3  Ind. 
481;  Johnson  v.  City  of  Lexington, 
53  Ky.  (14  B.  Mon.)  521;  Louisville 
Bridge  Co.  v.  City  of  Louisville,  81 
Ky.  189;  City  of  St.  Joseph  v.  Sa- 
ville,  39  Mo.  460;  Moore  v.  Town  of 
Fayetteville,  80  N.  C.  154;  Shriver 
v.  ,City  of  Pittsburg,  66  Pa.  446. 

"  Shaw  v.  Lockett,  14  Colo.  App. 
413,  60  Pac.  363;  Wilkey  v.  City  of 
Pekin,  19  111.  160;  Large  v.  Wash- 
ington Dist.  Tp.,  53  Iowa,  663;  Trigg 
v.  Trustees  of  Glasgow,  65  Ky.  (2 
Bush)  594;  Chicago,  B.  &  Q.  R.  Co. 
v.  Cass  County,  51  Neb.  369,  70  N. 
W.  955;  Wells  v.  City  of  Weston,  22 
Mo.  384;  Deason  v.  Dixon,  54  Miss. 
585;  Chicago,  B.  &  Q.  R.  Co.  v.  Cass 
County,  51  Neb.  369;  Chicago,  B.  & 
Q.  R.  Co.  v.  Nebraska  City,  53  Neb. 
453. 

Sioux  City  Bridge  Co.  v.  Dakota 
County,  61  Neb.  75,  84  N.  W.  607. 


In  this  case  the  court  epitomizes  the 
law  as  follows:  First,  "A  village 
cannot  levy  a  tax  on  property  the 
situs  of  which  is  not  within  the  cor- 
porate limits."  Second,  "A  tax 
levied  on  a  whole  property  part  of 
which  is  within  and  part  without 
the  territorial  limits  of  the  body 
imposing  the  same  is  invalid  as  to 
that  part  levied  on  the  portion  with- 
out the  jurisdiction  which  renders 
the  whole  assessment  void,  unless 
the  tax  assessed  against  the  part 
within  the  jurisdiction  of  the  taxing 
body  can  readily  be  separated  from 
the  portion  without  it."  Third,  "A 
property  owner  is  not  required  to 
appear  before  a  taxing  board  in  op- 
position to  the  assessment  of  a  tax 
on  property  whose  situs  is  not  with- 
in the  jurisdiction  of  such  board." 
Fourth,  "Where  an  assessment  is 
wholly  void,  no  tender  of  any  sum 
is  necessary  to  relief  against  the 
tax." 

Allen  v.  Bidwell,  68  N.  H.  245; 
Piper  v.  Singer,  4  Serg.  &  R.  (Pa.) 
354;  Arthur  v.  School  Dist.  of  Polk 
Borough,  164  Pa.  410;  State  v.  City 
of  Columbia,  27  S.  C.  137;  Neale  v. 
Wood  County  Ct.,  43  W.  Va.  90,  27 
S.  E.  370. 


§311 


TAXATION. 


713 


subject  to  the  taxes  which  it  may  impose.78  \Vhere  persons  or 
property  are  within  the  jurisdiction  of  different  corporations, 
the  limits  of  which  are  wholly  or  partially  co-extensive  with 
each  other,  they  may  be  subject  to  the  levy  of  taxes  for  the  same 
or  a  different  purpose  by  each  of  such  corporate  organizations.79 
To  illustrate,  property  within  the  limits  of  a  city,  taxed  by  it 
for  city  school  purposes,  may  be  also  taxed  for  similar  county 
purposes  by  the  county  organization  including  such  municipality. 
The  authorities  hold  that  the  burden  of  proof  is  upon  the  organi- 


se Alexander  v.  Town  of  Alexan- 
dria, 5  Cranch  (U.  S.)  1;  Jones  v. 
City  of  Columbus,  25  Ga.  610;  Cut- 
liff  v.  City  of  Albany,  60  Ga.  597.  A 
constitutional  provision  "That  all 
taxation  shall  be  uniform  upon  the 
same  class  of  subjects  *  *  * 
within  the  territorial  limits  of  the 
authority  levying  the  tax"  does  not 
preclude  a  municipal  corporation 
from  taxing  one  business  and  not 
another. 

Dunleith  v.  Reynolds,  53  111.  45; 
Raymond  v.  Hartford  Fire  Ins.  Co., 
196  111.  329;  Toledo  &  W.  R.  Co.  v. 
City  of  Lafayette,  22  Ind.  262;  Til- 
ford  v.  Douglass,  41  Ind.  580;  By- 
ram  v.  Marion  County  Com'rs,  145 
Ind.  240,  44  N.  E.  357,  33  L.  R.  A. 
476;  Hines  v.  City  of  Leavenworth, 
3  Kan.  186;  Henderson  Bridge  Co. 
v.  City  of  Henderson,  90  Ky.  498,  14 
S.  W.  493;  Specht  v.  City  of  Louis- 
ville, 22  Ky.  L.  R.  699,  58  S.  W.  607; 
Richardson  v.  Boske,  23  Ky.  L.  R. 
1209,  64  S.  W.  919;  Adams  v.  City 
of  Greenville,  77  Miss.  881.  The 
authority  to  tax,  as  a  rule,  gives  no 
power  to  impose  taxes  not  levied 
during  previous  years.  City  of  St. 
Joseph  v.  Hannibal  &  St.  J.  R.  Co., 
39  Mo.  476;  Cobb  v.  Elizabeth  City, 
75  N.  C.  1.  Municipal  taxes  to  com- 
ply with  the  constitutional  provision 
requiring  uniformity  should  be  lev- 


ied upon  all  property  within  the 
city  not  exempt. 

Western  Union  Tel.  Co.  v.  City  of 
Richmond,  26  Grat.  (Va.)  1.  A  cor- 
poration is  a  person  within  the 
meaning  of  laws  providing  for  the 
levy  of  taxes.  Newport  News  &  O. 
P.  R.  &  Elec.  Co.  v.  City  of  Newport 
News,  100  Va.  157,  40  S.  E.  645. 

7»  Martin  v.  Aston,  60  Cal.  63. 
But  county  officers  cannot  levy  taxes 
for  road  purposes  upon  property 
within  the  limits  of  the  city  whose 
authorities  have  the  power  to  levy 
taxes  for  the  maintenance  of  Its 
streets  and  alleys.  People  v.  Knopf, 
171  111.  191;  Jackson  Tp.  v.  Wood, 
55  Kan.  628,  40  Pac.  897;  Ryerson 
v.  Laketon  Tp.,  52  Mich.  509;  Cham- 
bers v.  Adair,  23  Ky.  L.  R.  373,  62 
S.  W.  1128;  Bordeaux  v.  Meridian 
Land  &  Industrial  Co.,  67  Miss.  304, 
7  So.  286;  Sargent  v.  Inhabitants  of 
Milo,  90  Me.  374,  38  Atl.  341;  Wheel- 
er v.  Town  of  Alton,  68  N.  H.  477, 
38  Atl.  208.  Taxes  cannot  be  levied 
upon  property  in  a  town  for  the  sup- 
port of  district  school  teachers. 
Bertha  Zinc  Co.  v.  Pulaski  County 
Sup'rs,  88  Va.  371.  The  rule,  how- 
ever, does  not  apply  where  the  juris- 
diction of  the  two  districts  is  not 
co-extensive.  But  see,  however,  to 
the  contrary,  Kerlin  v.  Reynolds, 
142  Ind.  460,  36  N.  E.  693,  41  N.  E. 
827. 


714  PUBLIC  REVENUES.  §   311 

zation  claiming  jurisdiction  of  either  persons  or  property  for  the 
purpose  of  taxation  to  maintain  such  jurisdiction.80  The  right  to 
tax  those  moving  from  one  taxing  district  to  another  about  the 
time  of  assessment  is  generally  determined  by  particular  pro- 
visions of  the  statute  as  well  as  other  questionable  cases  affect- 
ing the  right  of  a  taxing  district  to  impose  taxes  based  upon 
the  ground  of  residence  or  location  within  its  limits,81  or  rights 
affected  by  change  of  boundaries.81 

so  McConoughey    v.    City    of    San  tract  of  exemption  is  assignable  and 

Diego,    128    Cal.    366;    Galbreath   v.  may  be  transferred  to  another  cor- 

Newton,  30  Mo.  App.  380;   Smith  v.  poration.     Budd    v.    Allen,    69    Hun, 

Barrett,  41  Mo.   App.  460;    Chicago,  535,    24   N.    Y.    Supp.    5;    Arthur   v. 

B.  &  Q.  R.   Co.  v.  Cass  County,  51  School  District  of  Polk  Borough,  164 

Neb.   369,  70   N.  W.   955;    Hurlburt  Pa.  410;   King  v.  Utah  C.  R.  Co.,  6 

v.  Green,  41  Vt.  490.  Utah,  281. 

s1  Ex  parte  Upshaw,  45  Ala.  234;  82  Town  of  New  Decatur  v.  Nel- 
Hughes  v.  Ewing,  93  Cal.  414,  28  son,  102  Ala.  556,  15  So.  275;  Hughes 
Pac.  1067.  Determining  the  rights  v.  Ewing,  93  Cal.  414,  28  Pac.  1067; 
of  taxpayers  where  district  boun-  Callaway  v.  Denver  &  R.  G.  R.  Co., 
daries  have  been  changed  after  vot-  6  Colo.  App.  284,  40  Pac.  573;  Cham- 
ing  a  tax  but  before  its  levy.  Cal-  bers  v.  Adair,  23  Ky.  L.  R.  373,  62 
laway  v.  Denver  &  R.  G.  R.  Co.,  6  S.  W.  1128 ;  Capen  v.  Glover,  4  Mass. 
Colo.  App.  284,  40  Pac.  573;  Pidgeon  305;  Richards  v.  Dagget,  4  Mass, 
v.  McCarthy,  82  Ind.  321.  An  ac-  534;  Waldron  v.  Lee,  22  Mass.  (5 
quiescence  for  sixty  years  in  taxa-  Pick.)  323;  School  Dist.  No.  9  v. 
tion  by  municipal  authority  will  School  Dist.  No.  6,  9  Neb.  331;  Pick- 
estop  the  owners  of  property  from  ering  v.  Coleman,  53  N.  H.  424; 
disputing  the  municipal  right  to  tax  Ovitt  v.  Chase,  37  Vt.  196. 
because  not  within  its  jurisdiction.  Madry  v.  Cox,  73  Tex.  538.  Prop- 
Rapids  Dist.  Tp.  v.  Clinton  Dist.  erty  annexed  to  a  municipal  cor- 
Tp.,  27  Iowa,  323;  Montgomery  v.  poration  will  be  subject  to  taxation 
City  of  Lebanon,  23  Ky.  L.  R.  891,  for  the  payment  of  its  debts.  See, 
64  S.  W.  509;  Huckins  v.  City  of  also,  as  holding  the  same  proposi- 
Boston,  58  Mass.  (4  Gush.)  543;  tion,  the  next  five  cases.  City  of 
Johnston  v.  Cathro,  51  Mich.  80;  East  St.  Louis  v.  People,  124  111. 
City  of  Detroit  v.  Detroit  City  R.  Co.,  655;  City  of  New  Orleans  v.  Great 
76  Mich.  421;  Manistee  &  N.  E.  R.  Southern  Tel.  &  Tel.  Co.,  40  La. 
Co.  v.  Railroads  Com'rs,  118  Mich.  Ann.  41;  Newark  Aqueduct  Board 
349,  76  N.  W.  633.  No  contract  re-  v.  City  of  Newark,  50  N.  J.  Law, 
lation,  however,  is  created  where  no  126;  Voorhies  v.  City  of  Houston,  70 
substantial  consideration  runs  to  the  Tex.  331;  and  Lucia  v.  Village  of 
state.  Detroit  Citizens'  St.  R,  Co.  Montpelier,  60  Vt.  537,  1  L.  R.  A. 
v.  Common  Council  of  Detroit  169. 
(Mich.)  85  N.  W.  96.  Such  a  con- 


312 


TAXATION. 


715 


§  312.    The  authority  to  tax  and  upon  what  based. 

The  authority  for  all  municipal  taxation  must  proceed  from 
the  sovereign.  The  basis  of  such  taxation  is  the  exercise  of  a 
sovereign  right  as  a  theory,  but  as  a  matter  of  practice  the  fact 
that  the  subject  of  taxation  receives  a  local  benefit,  protection 
or  advantage  through  the  levying  and  collection  of  the  taxes.83 

As  the  authority  to  tax  proceeds  from  the  legislature,  repre- 
senting the  sovereign,  it  necessarily  follows  that  if  an  exclusive 
method  has  been  provided  by  it  for  the  taxation  either  of  cer- 
tain individuals  or  of  specific  property,  these  are  exempt  from 
all  other  taxation  except  special  assessments  or  taxes;84  such 
being  levied  for  a  specific  purpose  and  resting  upon  a  basis  en- 
tirely different  in  its  nature  from  that  sustaining  ordinary  taxa- 
tion do  not  come  within  the  exemption.  The  municipal  power 
to  tax  is  limited  to  the  methods85  and  subjects  named  in  the  ex- 
press authority.86 


83  Hanson  v.  Vernon,  27  Iowa,  28; 
Mitchell  v.  Williams,  27  Ind.  62; 
Northern  Liberties  v.  St.  John's 
Church,  13  Pa.  104. 

s*  City  of  Albany  v.  Savannah,  F. 
&  W.  R.  Co.,  71  Ga.  158;  Cincinnati, 
N.  O.  &  T.  P.  R.  Co.  v.  Com.,  21 
Ky.  L.  R.  418,  51  S.  W.  568.  "The 
petitions  are  all  based  upon  a  local 
assessment  made  by  an  assessor  ap- 
pointed by  the  school  board.  It  is 
insisted  that  this  is  unwarranted. 
The  law  regulating  the  assessment 
of  railroad  property  for  the  y'ear 
1893  is  found  in  Gen.  St.  pp.  1042- 
1045.  Section  four  provides:  'No 
county,  city  or  incorporated  town  in 
this  state  shall  hereafter  assess, 
levy  or  collect  any  taxes  on  the 
property  of  railroad  companies  in 
this  state  except  as  provided  by  this 
article.'  Section  4102  of  the  Ken- 
tucky Statutes  contains  the  same 
provision.  Section  4099  provides 
for  the  reports  of  school  districts 
so  that  the  proper  assessment  may 
be  made.  Section  4100  requires  the 


money  paid  to  the  superintendent  of 
public  schools  for  the  benefit  of  the 
district  entitled  thereto.  Under 
these  provisions,  appellees  could  not 
assess  the  property  of  the  railroad 
company,  nor  recover  the  taxes  bas- 
ed upon  an  assessment  so  made." 

City  of  Davenport  v.  Mississippi 
&  M.  R.  Co.,  16  Iowa,  348;  Dubuque 
&  S.  C.  R.  Co.  v.  City  of  Dubuque, 
17  Iowa,  120;  Sears  v.  Boston  St. 
Com'rs,  173  Mass.  350,  53  N.  E.  876. 
The  construction  and  management 
of  a  general  sewerage  system  for  an 
entire  city  should  be  raised  by  gen- 
eral taxation  rather  than  special 
assessments.  Kittle  v.  Shervin,  11 
Neb.  65;  Northern  Indiana  R.  Co. 
v.  Connelly,  10  Ohio  St.  159;  New 
York,  P.  &  N.  R.  Co.  v.  Northamp- 
ton County  Sup'rs,  92  Va.  661,  24 
S.  E.  221. 

ss  Livingston  v.  City  of  Albany. 
41  Ga.  21.  Where  the  constitution 
provides  for  an  ad  valorem  tax  on 
property,  even  the  legislature  cannot 
authorize  a  subordinate  corporation 


716 


PUBLIC  REVENUES. 


§  313 


§  313.    Exemptions. 

Property  may  be  exempt  from  taxation  either  because  of  the 
purpose  for  which  used,  its  ownership  or  a  specific  grant  of  ex- 
emption. 

(a)  Public  property  exempt.  It  is  axiomatic  to  state  that  prop- 
erty owned,  controlled  and  used  by  public  corporations  for  pub- 
lic purposes  is  exempt  from  all  species  of  taxation  and  even  in 
many  instances  from  the  levying  of  special  taxes  or  assessments 
except  when  otherwise  provided  by  law.87  The  rule,  however,  does 


to  levy  a  specific  tax  irrespective  of 
the  value  of  the  property  so  taxed. 
State  v.  Severance,  55  Mo.  378. 

se  Baldwin  v.  City  Council  of 
Montgomery,  53  Ala.  437;  City  of 
Savannah  v.  Hartridge,  8  Ga.  23. 
The  right  to  tax  in  common  cannot 
be  implied  from  a  charter  author- 
izing a  municipal  corporation  to  tax 
real  and  personal  estate. 

City  Council  of  Augusta  v.  Dun- 
bar,  50  Ga.  387.  The  rule  also  ap- 
plies to  the  imposition  of  penalty 
Imposed  for  a  delay  in  the  payment 
of  taxes.  Lanier  v.  City  of  Macon, 
59  Ga.  187.  The  authority  to  tax  all 
persons  exercising  any  profession 
gives  the  right  to  tax  the  individ- 
ual members  of  a  law  firm. 

City  of  Columbus  v.  Flournoy,  65 
Ga.  231;  City  of  Newark  v.  State 
Board  of  Taxation,  67  N.  J.  Law, 
246,  51  All.  67;  Bank  of  Greens- 
boro' v.  Greensboro'  Com'rs,  74  N.  C. 
385;  Wilson  v.  Aldermen  of  Char- 
lotte, 74  N.  C.  748;  State  v.  City 
Council  of  Charleston,  1  Mill,  Const. 
(S.  C.)  36.  Bonds  bearing  interest 
are  included  within  the  term  "tax- 
able property."  Jenkins  v.  City  of 
Charleston,  5  S.  C.  393;  Ex  parte 
Schmidt,  2  Tex.  App.  196,  construing 
the  power  of  the  city  of  Houston  to 
tax  fire  and  marine  insurance  com- 
panies. 

City   of  Dallas   v.   Dallas   ConsoL 


Elec.  St.  R.  Co.,  95  Tex.  268,  66  S. 
W.  835,  construing  sections  118, 
134,  and  135  of  the  charter  of  the 
city  of  Dallas  authorizing  the  coun- 
cil to  levy  taxes  upon  franchises 
and  all  other  property  of  street  rail- 
ways as  well  as  other  corporations. 
Newport  News  &  O.  P.  R.  &  Elec. 
Co.  v.  City  of  Newport  News,  100 
Va.  157,  40  S.  E.  645.  A  municipal- 
ity has  the  right  to  levy  taxes  on 
all  subjects  not  withheld  from  tax- 
ation by  the  legislature.  Blanton  v. 
Southern  Fertilizing  Co.,  77  Va.  335. 

87  See  post,  §  339.  People  v.  Doe, 
36  Cal.  220;  People  v.  Austin,  47 
Cal.  353;  People  v.  Salomon,  51  111. 
37;  Illinois  Industrial  University  v. 
Champaign  County  Sup'rs,  76  111. 
283;  Reid  v.  State,  74  Ind.  252; 
Board  of  Regents  v.  Hamilton,  28 
Kan.  376;  Inhabitants  of  Worcester 
v.  City  of  Worcester,  116  Mass.  193; 
Jersey  City  Water  Com'rs  v.  Gaff- 
ney,  34  N.  J.  Law,  133;  City  of 
Rochester  v.  Town  of  Rush,  80  N. 
Y.  302. 

Directors  of  the  Poor  of  S.  County 
v.  School  Directors,  42  Pa.  21.  A 
public  poor-house  it  was  here  claim- 
ed was  subject  to  taxation  for  school 
purposes.  The  court  say:  "Tax 
the  poor-house  to  support  the 
schools?  Why,  this  would  be  to  take 
the  poor  taxes  to  support  the 
schools;  and  the  people  must  be 


313a 


TAXATION. 


717 


not  apply  to  the  property  of  public  corporations  not  held  for  gov- 
ernmental purposes  but  in  their  economic  and  commercial  capa- 
city as  private  corporations  and  for  their  own  profit.88  The  only 
means  possessed  by  public  corporations  for  the  payment  of  taxes 
is  derived  from  its  levy  and  collection  of  taxes.  They  have  no  in- 
dependent sources  of  revenue.89  The  levying  and  collecting  of 


taxed  to  pay  the  officers  who  per- 
form such  foolish  service.  If  we  re- 
quire the  townships,  counties,  towns, 
cities,  and  state,  and  the  road, 
school,  and  poor  authorities,  to  tax 
each  other,  we  shall  furnish  fees 
enough  for  several  hundred  officers 
engaged  in  transferring  from  one 
public  body  to  another  the  taxes 
which  it  has  collected  for  its  public 
purposes.  These  poor  taxes  must  be 
collected  to  support  the  schools  and 
the  roads,  and  school  taxes  to  sup- 
port the  poor,  and  so  all  around. 
Surely  it  is  not  too  much  to  say 
this  is  absurd.  The  public  is  never 
subject  to  tax  laws,  and  no  portion 
of  it  can  be  without  express  stat- 
ute. No  exemption  law  is  needed 
for  any  public  property  held  as 
such."  Cooley,  Taxation,  p.  172. 
"All  such  property  is  taxable,  if  the 
state  shall  see  fit  to  tax  it;  but  to 
levy  a  tax  upon  it  would  render 
necessary  new  taxes  to  meet  the  de- 
mand of  this  tax,  and  thus  the  pub- 
lic would  be  taxing  itself  in  order 
to  raise  money  to  pay  over  to  it- 
self, and  no  one  would  be  benefited 
but  the  officers  employed,  whose 
compensation  would  go  to  increase 
the  useless  levy.  It  cannot  be  sup- 
posed that  the  legislature  would 
ever  purposely  lay  such  a  burden 
upon  public  property,  and  it  is 
therefore  a  reasonable  conclusion 
that,  however  general  may  be  the 
enumeration  of  property  for  taxa- 
tion, the  property  held  by  the  state 
and  by  all  its  municipalities  for 


governmental  purposes  was  intend- 
ed to  be  excluded,  and  the  law  will 
be  administered  as  excluding  it  in 
fact.  The  grant,  therefore,  in  gen- 
eral terms  to  a  city  of  the  power 
to  tax,  will  not  be  held  to  confer 
power  to  tax  state  or  county  prop- 
erty, and  the  rule  applies  to  the 
property  of  public  educational  and 
charitable  institutions  which  per- 
form public  functions  under  state 
control,  and  to  any  other  corpora- 
tion of  which  the  state  is  substan- 
tially the  corporator,  and  which  ex- 
ists for  governmental  purposes." 

ss  Town  of  West  Hartford  v.  West 
Hartford  Water  Com'rs,  44  Conn. 
360;  McChesney  v.  People,  99  111. 
216;  In  re  Appeal  of  Des  Moines 
Water  Co.,  48  Iowa,  324;  City  of 
Louisville  v.  Com.,  62  Ky.  (1  Duv.) 
295.  See,  also,  Anne  Arundel  Coun- 
ty Com'rs  v.  Duckett,  20  Md.  468; 
Bailey  v.  City  of  New  York,  3  Hill 
(N.  Y.)  531;  Lloyd  v.  City  of  New 
York,  5  N.  Y.  (1  Seld.)  369;  Storrs 
v.  City  of  Utica,  17  N.  Y.  104; 
Western  Sav.  Fund  Soc.  v.  City  of 
Philadelphia,  31  Pa.  175. 

89  Fall  v.  City  of  Marysville,  19 
Cal.  391;  Low  v.  Lewis,  46  Cal.  549. 
"The  property  of  a  municipal  cor- 
poration is  not  liable  to  taxation  for 
municipal  purposes.  It  cannot  tax 
its  own  property."  Cook  County  v. 
City  of  Chicago,  103  111.  646.  A 
water  tax,  however,  can  be  assessed 
against  a  public  institution.  Ottum- 
wa  Brick  &  Const.  Co.  v.  Ainley,  109 
Iowa,  386;  Wyman  v.  City  of  St. 


718 


PUBLIC  REVENUES. 


§   3l3b 


taxes  upon  public  property  would  be  an  unnecessary  expense  and 
a  useless  multiplication  of  accounts. 

(b)  Other  exemptions.  In  the  grant  of  authority  to  tax,  cer- 
tain property  may  be  excluded.90  Where  in  the  absence  of  such 
exemption,  however,  the  general  right  to  tax  has  been  given,  all 
property  within  the  jurisdiction  of  the  corporation  can  be  taxed. 

In  this  country  there  are  two  independent  governments,  the 
federal  and  the  government  of  the  states.  Each  within  certain 
well  defined  restrictions  is  supreme,  and  it  is  beyond  the  power 
of  either,  within  such  limitations,  to  take  any  action  which  may 
impair  or  destroy  the  integrity  of  the  other  as  an  independent 
sovereignty.  This  principle  applies  to  the  levying  of  taxes.91  The 


Louis,  17  Mo.  335.  A  building  used 
in  part  for  a  school  house  and  in 
part  for  other  purposes  is  not  ex- 
empt. People  v.  De  Witt,  59  App. 
Div.  493,  69  N.  Y.  Supp.  366.  Con- 
struing §  4,  N.  Y.  Laws  1896,  c.  908, 
exempting  from  taxation  property 
of  municipal  corporations  used  for 
public  purposes  except  that  not 
within  the  limits  of  the  corporation. 

»o  Savannah  v.  Atlantic  &  G.  R. 
Co.,  3  Woods,  432,  Fed.  Gas.  No. 
12,385;  Baldwin  v.  City  Council  of 
Montgomery,  53  Ala.  437.  Where, 
in  the  grant  of  authority  to  tax, 
the  subjects  of  taxation  are  specifi- 
cally enumerated,  the  right  of  the 
municipality  to  levy  taxes  will  be 
limited  to  these  subjects  and  the 
authority  will  not  be  construed  as 
a  general  power  to  tax  all  subjects 
including  others  not  so  enumerated. 

City  of  Albany  v.  Savannah,  F. 
&  W.  R.  Co.,  71  Ga.  158;  City  of 
New  Orleans  v.  Southern  Bank  of 
New  Orleans,  15  La.  Ann.  89;  City 
of  New  Orleans  v.  Dunbar,  28  La. 
Ann.  722;  Montague  v.  State,  54 
Md.  481;  Lee  v.  Thomas,  49  Mo.  112; 
State  v.  Arnold,  136  Mo.  446;  Haines 
v.  Mullica  Tp.,  51  N.  J.  Law,  412, 
17  All.  941.  An  act  excepting  a 


certain  township  from  the  operation 
of  tax  laws  is  void  because  in  con- 
travention of  N.  J.  Const.,  art.  4,  § 
7,  prohibiting  the  legislature  from 
passing  private,  local  or  special  laws 
regulating  the  internal  affairs  of  a 
town  or  county. 

Bridge  Proprietors  v.  State,  21 
N.  J.  Law  (1  Zab.)  384,  and 
Bridge  Proprietors  v.  State,  22  N.  J. 
Law  (2  Zab.)  593,  hold  that  toll 
bridges  are  liable  to  taxation  un- 
less specially  exempted.  People  v. 
Lee,  28  Hun  (N.  Y.)  469;  Shapter 
v.  Carroll,  18  App.  Div.  390,  46  N, 
Y.  Supp.  202;  Carpenter  v.  Hop- 
kinton  School  Trustees,  12  R.  I.  574; 
City  of  Memphis  v.  Hernando  Ins. 
Co.,  65  Tenn.  (6  Baxt.)  527;  Wash- 
ington County  Sup'rs  v.  Saltville 
Land  Co.,  99  Va.  640,  39  S.  E.  704; 
Newport  News  &  O.  P.  R.  &  Elec.  Co. 
v.  City  of  Newport  News,  100  Va. 
157,  40  S.  E.  645.  An  exemption 
from  taxation,  however,  is  never 
presumed;  the  right  to  levy  taxes 
being  a  governmental  one  and  not 
based  upon  contract. 

»!  Wagner  v.  Jackson,  33  N.  J. 
Law,  450.  The  levy  of  a  tax  for  the 
payment  of  commutation  money  for 
exemption  from  military  service  in 


§  313b 


TAXATION. 


719 


right  to  tax  includes  the  power  to  tax  to  the  limit  of  confisca- 
tion. It  includes,  as  Chief  Justice  Marshall  said,  "the  power 
to  destroy,"92  therefore,  agencies  of  either  state  or  national  gov- 


the  national  army  held  illegal  as 
obstructing  the  Federal  government 
in  performing  its  operations.  The 
court  say:  "It  is  not  disputed  that 
any  legislation  by  the  state,  or  its 
municipal  corporations,  contrary  to 
an  act  of  Congress  or  which  ob- 
structs the  Federal  government  in 
performing  its  functions,  is  invalid. 
It  need  not  be  in  direct  opposition 
to  an  act  of  Congress,  or  in  terms 
annul  it,  but  if  such  legislation  tend 
or  may  tend  to  defeat  its  operation, 
the  legislation  is  void.  *  *  *  As 
this  township  took  away  entirely 
from  the  drafted  man  the  pecuniary 
inducement  to  enter  the  service 
wisely  and  deliberately  provided  by 
congress,  which  was  not  done  by  the 
legislation  that  gave  the  money  to 
the  drafted  man  if  he  served,  the 
tax  assessed  for  that  purpose  is 
illegal  and  must  be  set  aside." 

92  McCulloch  v.  Maryland,  4 
Wheat.  (U.  S.)  316-391.  "The  last, 
and  greatest,  and  only  difficult  ques- 
tion in  the  cause,  is  that  which  re- 
spects the  assumed  right  of  the 
states  to  tax  this  bank,  and  its 
branches,  thus  established  by  Con- 
gress. This  is  a  question  compara- 
tively of  no  importance  to  the  in- 
dividual states,  but  of  vital  im- 
portance to  the  Union.  Deny  this 
exemption  to  the  bank  as  an  instru- 
ment of  government,  and  what  is 
the  consequence?  There  is  no  ex- 
press provision  in  the  constitution 
which  exempts  any  of  the  national 
institutions  or  property  from  state 
taxation.  It  is  only  by  implication 
that  the  army,  and  navy,  and  treas- 
ure, and  judicature  of  the  Union  are 


exempt  from  state  taxation.  Yet 
they  are  practically  exempt;  and 
they  must  be,  or  it  would  be  in  the 
power  of  any  one  state  to  destroy 
their  use.  Whatever  the  United 
States  have  a  right  to  do,  the  indi- 
vidual states  have  no  right  to  undo. 
The  power  of  Congress  to  establish 
a  bank,  like  its  other  sovereign  pow- 
ers, is  supreme,  or  it  would  be  noth- 
ing. Rising  out  of  an  exertion  of 
paramount  authority,  it  cannot  be 
subject  to  any  other  power.  Such  a 
power  in  the  states,  as  that  contend- 
ed for  on  the  other  side,  is  mani- 
festly repugnant  to  the  power  of 
Congress;  since  a  power  to  estab- 
lish implies  a  power  to  continue  and 
preserve.  There  is  a  manifest  re- 
pugnancy between  the  power  of 
Maryland  to  tax,  and  the  power  of 
Congress  to  preserve,  this  institu- 
tion. A  power  to  build  up  what  an- 
other may  pull  down  at  pleasure  is 
a  power  which  may  provoke  a  smile, 
but  can  do  nothing  else.  This  law 
of  Maryland  acts  directly  on  the 
operations  of  the  bank,  and  may  de- 
stroy it.  There  is  no  limit  or  check 
in  this  respect,  but  in  the  discretion 
of  the  state  legislature.  That  dis- 
cretion cannot  be  controlled  by  the 
national  councils.  Whenever  the 
local  councils  of  Maryland  will  it, 
the  bank  must  be  expelled  from 
that  state.  A  right  to  tax  without 
limit  or  control,  is  essentially  a 
power  to  destroy.  If  one  national 
institution  may  be  destroyed  in 
this  manner,  all  may  be  destroyed  in 
the  same  manner.  If  this  power  to 
tax  the  national  property  and  in- 
stitutions exists  in  the  state  of 


720 


PUBLIC  REVENUES. 


§  313b 


ernments  cannot  be  taxed  by  the  other  without  the  consent  of 
the  taxed.83  But  the  rule  does  not  extend  so  far  as  to  prevent 
the  property  of  Federal  or  state  agencies  from  being  taxed  in  the 
same  manner  as  similar  property  when  no  law  forbids  and  when 
the  effect  of  the  taxation  would  not  defeat  or  hinder  the  opera- 
tions of  government.94  In  the  Federal  constitution  is  found  a 
declaration  of  some  principles  and  exemptions  protecting  the  na- 
tional government  from  state  attacks  directly  or  indirectly 
through  the  imposition  of  taxes.95  Congress  may  also  provide  for 


Maryland,  it  is  unbounded  in  extent. 
There  can  be  no  check  upon  it, 
either  by  Congress  or  the  people,  of 
the  other  states." 

»3  Kansas  Pac.  R.  Co.  v.  Prescott, 
83  U.  S.  (16  Wall.)  603.  Affirmed 
in  this  particular  by  Union  Pac.  R. 
Co.  v.  McShane,  89  U.  S.  (22  Wall.) 
444,  462;  Northern  Pac.  R.  Co.  v. 
Traill  County,  115  U.  S.  600;  Cen- 
tral Pac.  R.  Co.  v.  State  of  Nevada, 
162  U.  S.  512.  The  rule  applied  to 
unpatented  railroad  land  grants; 
such  lands,  as  well  as  all  public 
lands  under  the  laws  of  the  United 
States  not  taxable  by  state  authori- 
ties. 

City  Council  of  Augusta  v.  Dun- 
bar,  50  Ga.  387.  A  municipal  cor- 
poration cannot  impose  a  tax  upon 
bonds  issued  by  the  state.  See  the 
following  authorities  among  many 
others  exempting  agencies  of  the 
Federal  government:  Van  Allen  v. 
Assessors  at  Albany,  70  U.  S.  (3 
Wall.)  573;  First  Nat.  Bank  of 
Louisville  v.  Com.,  76  U.  S.  (9 
Wall.)  353;  McCulloch  v.  Maryland, 
4  Wheat.  (U.  S.)  316;  Osborn  v. 
Bank  of  United  States,  9  Wheat.  (U. 
S.)  738;-  Dobbins  v.  Erie  County 
Com'rs,  16  Pet.  (U.  S.)  435;  Na- 
tional Commercial  Bank  v.  City  of 
Mobile,  62  Ala.  284;  Sumter  County 
v.  National  Bank  of  Gainesville,  62 
Ala.  464;  Melcher  v.  City  of  Boston, 


50  Mass.  (9  Mete.)  73;  Flint  v.  City 
of  Boston,  99  Mass.  141;  North 
Ward  Nat.  Bank  v.  City  of  Newark, 
39  N.  J.  Law,  380. 

See,  also,  the  following  cases  dis- 
cussing an  exemption  of  state  agen- 
cies from  taxation  by  the  Federal 
government:  Buffington  v.  Day,  78 
U.  S.  (11  Wall.)  113;  Ward  v.  Mary- 
land, 79  U.  S.  (12  Wall.)  418;  United 
States  v.  Baltimore  &  O.  R.  Co.,  84 
U.  S.  (17  Wall.)  322;  Smith 
v.  Short,  40  Ala.  385;  Warren  v. 
Paul,  22  Ind.  276;  Moore  v.  Quirk, 
105  Mass.  49;  Sayles  v.  Davis,  22 
Wis.  217;  Cooley,  Const.  Lim.  (5th 
Ed.)  p.  598. 

9*  Thomson  v.  Union  Pac.  R.  Co., 
76  U.  S.  (9  Wall.)  579.  The  court 
here  said  that  a  different  rule 
"would  remove  from  the  reach  of 
state  taxation  all  the  property  of 
every  agent  of  the  government. 
Every  corporation  engaged  in  the 
transportation  of  mails  or  of  gov- 
ernment property,  of  any  descrip- 
tion by  land  or  water  or  in  supply- 
ing materials  for  the  use  of  the 
government  or  in  performing  any 
service  of  whatever  kind  might 
claim  the  benefit  of  the  exemption." 

os  Northwestern  Union  Packet  Co. 
v.  City  of  St.  Paul,  3  Dill.  454,  Fed. 
Gas.  No.  10,346.  An  ordinance  im- 
posing a  wharfage  tax  each  trip 
upon  every  boat  or  vessel  running 


§  313c 


TAXATION. 


721 


exemption  from  taxation  by  the  states  of  property  exclusively 
within  its  control  or  under  its  jurisdiction.  Such  laws  are  para- 
mount ajid  taxes  levied  in  contravention  of  their  terms  are  illegal 
and  cannot  be  collected.96 

(c)  Contract  exemptions.  A  public  corporation  may  possess 
the  power  in  consideration  of  certain  benefits  or  advantages  re- 
ceived or  to  be  received,  by  contract  express  or  implied,  to  re- 
lieve private  property  from  the  payment  of  taxes  for  a  specified 
period,97  where  the  consideration  is  substantial,  the  contract  ex- 
emption can  be  enforced.98 


or  anchoring  in  front  of  a  public 
wharf  is  void  being  in  conflict  with 
that  provision  of  the  Federal  con- 
stitution, art.  1,  §  10,  cl.  2  prohibit- 
ing a  state  to  levy  any  duty  on  ton- 
nage without  the  consent  of  Con- 
gress,, citing  Cannon  v.  City  of  New 
Orleans,  87  U.  S.  (20  Wall.)  577. 

The  North  Cape,  6  Biss.  505,  Fed. 
Cas.  No.  10,316.  The  prohibition  in 
the  Federal  constitution  against  the 
imposition  of  "a  duty  on  tonnage" 
does  not  prevent  the  taxation  of  a 
vessel  under  state  laws  for  ordinary 
purposes. 

»6  Brown  v.  Maryland,  12  Wheat 
(U.  S.)  419. 

9-  Gulf  &  S.  I.  R.  Co.  v.  Hewes, 
183  U.  S.  66,  construing  a  certain 
exemption  and  holding  that  in  the 
light  of  the  state  constitution  and 
the  prior  decisions  .of  the  state 
courts  it  must  be  held  subject  to  the 
power  of  the  legislature  to  alter, 
amend  or  repeal  it. 

Whiting  v.  Town  of  West  Point, 
88  Va.  905,  14  S.  E.  698,  15  L.  R.  A. 
860.  "A  municipal  corporation  has 
no  element  of  sovereignty.  It  is  a 
mere  local  agency  of  the  state,  hav- 
ing no  other  powers  than  such  as 
are  clearly  and  unmistakably 
granted  by  the  law-making  power. 
*  *  *  The  power  of  taxation  is 
not  only  an  attribute  of  sovereign- 


ty but  it  is  essential  to  the  exist- 
ence of  government  and  as  all  are 
protected  by  the  government  so  all 
should  contribute  to  its  support. 
*  *  *  So  also  is  the  power  to 
make  exemptions  sovereign  in  its 
nature  and  likewise  resides  in  the 
legislature  unless  the  constitution 
otherwise  ordains.  It  is,  therefore, 
a  legal  solecism  to  say  that  the 
power  of  exemption  or  any  other 
sovereign  power  is  inherent  in  a 
municipal  corporation  which, 
though  invested  with  certain  gov- 
ernmental powers  for  local  pur- 
poses, is  in  no  particular  sover- 
eign." 

Cooper  v.  Ash,  76  111.  11.  An  ex- 
emption must  be  of  a  class  and  not 
individually.  Grand  Gulf  &  P.  G. 
R.  Co.  v.  Buck,  53  Miss.  246;  Mis- 
sissippi Mills  v.  Cook,  56  Miss.  40; 
Adams  v.  Yazoo  &  M.  V.  R.  Co.,  77 
Miss.  194,  60  -L.  R.  A.  33;  State  v. 
Hannibal  &  St.  J.  R.  Co.,  75  Mo. 
208.  The  power  to  tax  does  not 
give  the  power  to  exempt  which 
must  be  specifically  given.  People 
v.  New  York  Tax  Com'rs,  95  N.  Y. 
554.  Exemption  statutes  must  be 
strictly  construed. 

93  Bartholomew  v.  City  of  Austin 
(C.  C.  A.)  85  Fed.  359.  If  the  ex- 
emption from  taxation  prove  void, 
the  courts  will  enforce  substantial 


Abb.  Corp.— 46. 


722 


PUBLIC  REVENUES. 


313d 


(d)  Exemptions  arising  because  of  purpose  for  which  property 
is  used.  The  organization  of  a  municipal  corporation  is  supposed 
to  result  in  certain  local  benefits  to  all  persons  and  property 
within  its  limits,  notably,  fire  and  police  protection.  If  property 
on  account  of  the  purposes  for  which  used  does  not  receive  the 
benefits  or  advantages  which  usually  accompany  municipal  or- 
ganizations, the  legislature  may,  by  statutory  exemption,  exclude 
such  property  from  the  operation  of  tax  laws  granting  municipal 
authority  to  tax." 


equities  existing  between  the  par- 
ties based  upon  a  partial  perform- 
ance of  the  contract. 

Montreal  St.  R.  Co.  v.  City  of 
Montreal,  23  Can.  Sup.  Ct.  259. 
Such  a  contract  of  exemption  may 
not,  however,  relieve  from  all  tax- 
ation. City  of  Dayton  v.  Bellevue 
Water  &  Fuel  Gaslight  Co.,  24  Ky. 
L.  R.  194,  68  S.  W.  142.  Exemption 
construed  and  held  as  being  made 
without  authority. 

City  of  New  Orleans  v.  Great 
Southern  Tel.  &  Tel.  Co.,  40  La. 
Ann.  41,  3  So.  533.  A  charge  of  $5.00 
per  pole  on  the  poles  of  a  telephone 
company  cannot  be  imposed  where 
the  permission  has  already  been  se- 
cured for  the  use  of  the  streets  un- 
der an  ordinance  duly  passed. 

9»  Gold  Hill  v.  Caledonia  Silve'r 
Min.  Co.,  5  Sawy.  575,  Fed.  Gas.  No. 
5,512.  The  question  of  benefit  is 
held  in  this  case  a  legislative,  not  a 
judicial  one.  State  v.  Southern  R. 
Co.,  115  Ala.  250;  Town  of  Dixon  v. 
Mayes,  72  Cal.  166,  13  Pac.  471. 
Land  used  solely  for  agricultural 
purposes  when  within  corporate  lim- 
its is  still  liable  for  taxation  for 
municipal  purposes. 

St.  Louis  Bridge  Co.  v.  City  of 
East  St.  Louis,  121  111.  238,  12  N.  E. 
723.  The  part  of  the  St.  Louis 
Bridge  within  the  corporate  lim- 
its of  East  St.  Louis  is  liable  to  tax- 


ation for  municipal  purposes  al- 
though it  receives  no  material  bene- 
fit by  reason  of  its  location  in  re- 
spect to  police  protection  or  other 
advantages  supposed  to  be  derived 
from  municipal  organization. 

Blain  v.  Bailey,  25  Ind.  165. 
Farm  lands  within  city  limits  are, 
by  the  act  of  June  18,  1852,  ex- 
empt from  taxation  for  municipal 
purposes.  Hamilton  v.  City  of  Ft. 
Wayne,  40  Ind.  491;  Stilz  v.  City  of 
Indianapolis,  55  Ind.  515.  The  right 
to  tax,  however,  cannot  be  raised  by 
the  landowner  in  a  collateral  pro- 
ceeding. City  of  Indianapolis  v. 
Ritzinger,  2*  Ind.  App.  65,  56  N.  B. 
141;  Conklin  v.  Town  of  Cambridge 
City,  58  Ind.  130;  Town  of  Cicero 
v.  Sanders,  62  Ind.  208. 

Glover  v.  City  of  Terre  Haute, 
129  Ind.  593.  In  an  action  to  en- 
join the  collection  of  taxes  levied 
for  municipal  uses,  tne  method  for 
the  annexation  of  platted  suburban 
property  cannot  be  raised.  Lang- 
worthy  v.  City  of  Dubuque,  16  Iowa, 
271.  It  is  held  that  city  "out  lots" 
when  benefited  and  enhanced  in  val- 
ue are  liable  to  taxation.  The  ques- 
tion is  one  of  fact. 

Fulton  v.  City  of  Davenport,  17 
Iowa,  404;  Deeds  v.  Sanborn,  22 
Iowa,  214;  Id.,  26  Iowa,  419;  Buell 
v.  Ball,  20  Iowa,  282;  Davis  v.  City 
of  Dubuque,  20  Iowa,  458;  Deiman 


§  314  TAXATION. 

§  314.    Taxes ;  their  levy  and  assessment. 


723 


Where  the  levy  of  taxes  by  a  subordinate  agency  is  authorized 
by  a  sovereign,  this  then  becomes  an  obligatory  duty  and  can  be 


v.  City  of  Ft.  Madison,  30  Iowa,  542; 
Durant  v.  Kauffman,  34  Iowa,  194; 
Ford  v.  Town  of  North  Des  Moines, 
80  Iowa,  626,  45  N.  W.  1031.  The 
fact  that  property  within  municipal 
limits  is  subject  to  overflow  does 
not  exempt  it  from  taxes  for  munic- 
ipal purposes. 

Brooks  v.  Polk  County,  52  Iowa, 
460;  Taylor  v.  City  of  Waverly,  94 
Iowa,  661,  63  N.  W.  347;  Evans  v. 
City  of  Council  Bluffs,  65  Iowa,  238; 
Tubbesing  v.  City  of  Burlington,  68 
Iowa,  691.  Under  Iowa  Laws  1876, 
c.  47,  §  4,  amended  by  laws  of  1878, 
c.  169,  a  tract  of  land  within  the 
city  limit  used  for  agricultural  pur- 
poses and  also  for  the  owner's  resi- 
dence is  not  taxable.  Farwell  v. 
Des  Moines  Brick  Mfg.  Co.,  97  Iowa, 
286,  35  L.  R.  A.  63;  Perkins  v.  City 
of  Burlington,  77  Iowa,  553. 

Allen  v.  City  of  Davenport,  107 
Iowa,  90,  77  N.  W.  532.  Land  with- 
in the  city  limits  occupied  by  lum- 
ber yards,  pasture,  etc.,  is  not  used 
for  agricultural  purposes  within  the 
law  exempting  such  land  from  taxa- 
tion for  city  purposes.  Windsor  v. 
Polk  County,  109  Iowa,  156;  Men- 
denhall  v.  Burton,  42  Kan.  570; 
Hurla  v.  Kansas  City,  46  Kan.  738. 

Simms  v.  City  of  Paris,  8  Ky.  L. 
R.  344.  1  S.  W.  543.  Land  not  used 
exclusively  for  farming  when  with- 
in the  limits  of  a  city  is  liable  to 
taxation  for  municipal  purposes. 
Maltus  v.  Shields,  59  Ky.  (2  Mete.) 
553.  An  unplatted  tract  of  nine 
acres  of  land  used  for  residences 
within  the  city  limits  will  be  sub- 
ject to  taxation  for  municipal  pur- 


poses. Torbett  v.  City  of  Louis- 
vine,  9  Ky.  L.  R.  202,  4  S.  W.  345; 
Courtney  v.  City  of  Louisville,  75 
Ky.  (12  Bush)  419.  The  court  in 
this  case  held  that  in  order  to  sub- 
ject real  property  within  the  corpo- 
rate limits  of  a  town  or  city  to  tax- 
ation for  ordinary  municipal  pur- 
poses, there  must  be  benefits  actual 
or  presumed  to  such  property  de- 
rived from  the  municipal  corpora- 
tion. 

City  of  Covington  v.  Arthur,  12 
Ky.  L.  R.  163,  14  S.  W.  121;  Trus- 
tees of  Elkton  v.  Gill,  14  Ky.  L.  R. 
755,  21  S.  W.  579;  Briggs  v.  Town 
of  Russellville,  18  Ky.  L.  R.  389, 
36  S.  W.  558;  City  of  Pineville  v. 
Creech,  16  Ky.  L.  R.  172,  26  S.  W. 
1101;  City  of  Lebanon  v.  Bevill,  18 
Ky.  L.  R.  924,  38  S.  W.  872;  Town 
of  Latonia  v.  Hopkins,  20  Ky.  L.  R. 
620,  42  S.  W.  248.  Although  agricul- 
tural lands  receive  no  benefit  from 
corporate  organization,  they  are 
still  subject  to  taxation  for  munici- 
pal purposes. 

Bell  County  Coke  &  Imp.  Co.  v. 
City  of  Pineville,  23  Ky.  L.  R.  933, 
64  S.  W.  525;  City  of  Frankfort  v. 
Gaines,  88  Ky.  59;  Eifert  v.  Town 
of  Central  Covington,  91  Ky.  194; 
Henderson  Bridge  Co.  v.  City  of 
Henderson,  90  Ky.  498;  Stickley  v. 
Chesapeake  &  O.  R.  Co.,  93  Ky.  323; 
Briggs  v.  Town  of  Russellville,  99 
Ky.  515,  34  L.  R.  A.  :193;  City  of 
New  Orleans  v.  Michoud,  10  La.  Ann. 
763;  Groff  v.  City  of  Frederick,  44 
Md.  67;  Smith  v.  City  of  Saginaw, 
81  Mich.  123;  Baldwin  v.  City  of 
Hastings,  83  Mich.  639;  Adams  v. 


724 


PUBLIC  REVENUES. 


§   314 


enforced  in  courts  having  jurisdiction  of  the  questions  raised  by 
the  proper  proceedings,  generally   a  writ  of  mandamus  directed 


Yazoo  &  M.  V.  R.  Co.,  75  Miss.  275; 
Adams  v.  Mississippi  State  Bank,  75 
Miss.  701. 

Giboney  v.  City  of  Girardeau,  58 
Mo.  141.  An  extension  to  the  city 
limits  is  not  necessarily  illegal  be- 
cause it  operates  to  subject  to  mu- 
nicipal taxes  farm  property.  City 
of  Stanberry  v.  Jordan,  145  Mo.  371; 
Bradshaw  v.  City  of  Omaha,  1  Neb. 
16;  Gottschalk  v.  Becher,  32  Neb. 
653.  Where  suburban  property  is 
annexed  to  municipal  organization 
under  Comp.  St.  Neb.  1891,  c.  14,  § 
95,  it  is  exempt  from  taxation.  Lan- 
caster County  v.  Rush,  35  Neb.  119; 
Sage  v.  City  of  Plattsmouth,  48  Neb. 
558;  McClay  v.  City  of  Lincoln,  32 
Neb.  412,  49  N.  W.  282.  Rev.  St. 
Neb.  1866,  c.  53,  §  1,  authorizes  the 
taxation  of  unplatted  lands  within 
the  city  limits.  Bailey  v.  Brown,  53 
N.  J.  Law,  162,  following  Menden- 
hall  v.  Burton,  42  Kan.  570. 

Kelly  v.  City  of  Pittsburgh,  85  Pa. 
170.  Lands  embraced  within  the 
borders  of  a  city  and  used  only  for 
farming  purposes  may  be  taxed  for 
municipal  objects  from  which  the 
lands  do  not  receive  any  protection 
or  derive  any  benefit.  Appeal  of 
Hewitt,  88  Pa.  55;  City  of  Erie  v. 
Reed's  Ex'rs,  113  Pa.  468.  The  final 
determination  of  whether  real  es- 
tate is  within  the  limits  of  a  city  is 
rural  and  capable  of  receiving  the 
benefits  of  street  lighting,  paving 
and  other  improvements,  is  left  un- 
der act  of  February  25,  1870  (P. 
L.  242)  to  the  council  of  the  city  of 
Erie.  Their  decision  is  conclusive 
unless  this  discretion  is  abused. 

Carriger  v.  City  of  Morristown,  69 
Tenn.  (1  Lea)  116;  Lum  v.  City  of 


Bowie  (Tex.)  18  S.  W.  142.  Sub- 
urban land  annexed  without  the 
consent  of  the  owner  residing  upon 
it  is  not  subject  to  taxation  for 
municipal  purposes  and  an  injunc- 
tion will  lie  to  restrain  city  taxes 
as  levied.  Norris  v.  City  of  Waco, 
57  Tex.  635;  Cook  v.  Crandall,  7 
Utah,  344;  Ellison  v.  Linford,  7 
Utah,  166.  Where  farming  land 
within  the  corporate  limits  will  de- 
rive no  benefit  from  the  expenditure 
of  taxes  raised  for  municipal  pur- 
poses, it  is  not  subject  to  such  taxa- 
tion. Kaysville  City  v.  Ellison,  18 
Utah,  163,  55  Pac.  386,  43  L.  R.  A. 
81;  Ferguson  v.  City  of  Snohomish, 
8  Wash.  668,  24  L.  R.  A.  795.  Land 
used  solely  for  agricultural  pur- 
poses may  be  included  within  the 
limits  of  a  municipal  corporation 
and  under  act  of  March  27,  1890 
(page  131)  which  provides  for  the 
incorporation,  government  and  clas- 
sification of  such  corporations,  it  is 
subject  to  general  municipal  taxa- 
tion. 

Frace  v.  City  of  Tacoma,  16  Wash. 
69.  It  is  not  necessary  that  lands 
should  receive  the  benefits  of  mu- 
nicipal organization  to  render  a  tax 
for  such  purposes  valid.  Powell  v. 
Parkersburg,  28  W.  Va.  698.  Under 
West  Va.  Act  of  1875,  c.  54,  §§  101 
and  103,  outlying  farming  lands 
within  the  city  limits  can  be  taxed 
as  city  lands. 

Weeks  v.  City  of  Milwaukee,  10 
Wis.  242.  The  legislature  has  the 
power  to  annex  farming  lands  to  a 
city  and  subject  them  to  the  burden 
of  taxation  for  municipal  purposes. 
Davis  v.  Town  of  Point  Pleasant,  32 
W.  Va.  289. 


§   314  TAXATION.  725 

against  the  officials  whose  statutory  and  usual  duty  is  to  do  those 
acts  required  by  law  and  necessary  to  the  legal  levy  and  collec- 
tion of  taxes.100  This  power  to  compel  by  mandamus  the  per- 
formance of  a  duty  is  vested  not  only  in  state  but  also  in  the  Fed- 
eral courts;  they  can  only  compel  the  levy  of  a  municipal  tax 
when  state  laws  authorize  it  to  be  levied  and  the  proper  officials 
neglect  or  refuse.  A  mandamus  does  not  confer  power  upon 
those  to  whom  it  is  directed,  it  only  enforces  the  exercise  of  a 
power  already  existing  when  its  exercise  has  become  or  is  a 
duty.101 

100  See,   also,   authorities   cited  in  the  county  auditor  to  perform  their 

the  following  note  as  sustaining  the  duties  in  this  respect, 

right  to  compel  by  mandamus  a  levy  State  v.  Paddock,  36  Neb.  263,  54 

of  taxes.     The  President  v.  City  of  N.  W.  515.     In  this  case  the  court 

Elizabeth,   40  Fed.   799;   Vickrey  v.  writing  the  syllabus  says:      "South 

Sioux  City,  104  Fed.  164;  Welch  v.  Omaha  as  shown  by  the  census  of 

Ste.  Genevieve,  1  Dill.  130,  Fed.  Cas.  1890,  is  a  city  of  the  second  class, 

No.  17,372.     Where  a  municipal  cor-  having    more    than    8,000    and    less 

poration  refuses  to  levy  a  tax  to  pay  than    twenty-five    thousand    inhabi- 

a  judgment  or  to  elect  officers  whose  tants,   and   not  a   city   of   the   first 

duty  it  is  to  levy  such  taxes,  a  cir-  class.     The   school   board   of   South 

cuit  court  of  the  United  States  may  Omaha  on  the  6th  day  of  June,  1892, 

appoint  its  marshal  a  special   com-  made    an    estimate    of    the   amount 

missioner  to  assess,  levy  and  collect  of   school  tax  to  be  levied  in  said 

the  requisite  tax.  city   for    that   year.     This    estimate 

Wells  v.  Cole,  27  Ark.  603;  Meyer  was  imperfect  in  its  statements 
v.  Brown,  65  Cal.  583;  People  v.  and  details.  The  defendants  held 
Lake  County  Com'rs,  12  Colo.  89;  the  same  until  July  14,  1892,  when 
Jones  v.  State,  17  Fla.  411.  All  they  refused  to  levy  the  tax.  Aft- 
prior  proceedings  must  have  been  erwards  proceedings  in  mandamus 
properly  performed  before  manda-  were  instituted  and  the  court  ren- 
mus  will  lie.  State  v.  City  of  New  dered  judgment  for  the  defendants. 
Orleans,  42  'La.  Ann.  92;  Attorney  Corrected  estimates  were  then  filed. 
General  v.  City  of  Salem,  103  Mass.  Held,  that  such  estimates  related 
138;  Jarvis  v.  Warren  County  back  to  June  6  of  that  year,  and 
Sup'rs,  49  Miss.  603.  A  petition  for  that  it  was  the  duty  of  the  defend- 
mandamus  to  compel  the  levy  of  a  ants  to  levy  the  tax."  Davis  v.  Simp- 
tax  that  fails  to  state  the  particular  son,  25  Nev.  123,  68  Pac.  146;  Joint 
district  for  the  benefit  for  which  Free  High  School  Dist.  v.  Town  of 
this  tax  was  levied  is  insufficient.  Green  Grove,  77  Wis.  532.  See,  also, 

Musgrove   v.   Vicksburg   &   N.   R.  Cooley,  Taxation,  pp.  734  et  seq.,  for 

Co.,    50    Miss.    677.     Where   certain  a  full  discussion  of  the  question  and 

subordinate   officials   refuse  or  neg-  the  many  authorities  there  cited, 

lect    to    levy    a    tax,    Miss.    Act    of  101  Butz  v.  City  of  Muscatine,  75 

March  15,  1872    (p.   102)    empowers  U.  S.  (8  Wall.)  575;  Carroll  County 


726 


PUBLIC  REVENUES. 


§   315 


§  315.    Basis  or  authority  for  tax  levy. 

The  levy  of  a  tax  is  usually  based  upon  an  assessment  of  prop- 
erty according  to  some  uniform  method  prescribed  by  law,102  or 
a  gross  tax  may  be  levied  directly  by  a  vote  of  qualified  electors 
to  be  apportioned  subsequently  and  imposed  upon  property  sub- 
ject to  it  in  some  equitable  and  uniform  manner.103 


Sup'rs  v.  United  States,  85  U.  S.  (18 
Wall.)  71;  Heine  v.  Levee  Com'r-, 
86  U.  S.  (19  Wall.)  655;  Barkley  v. 
Levee  Com'rs,  93  U.  S.  258;  United 
States  v.  County  of  Clark,  95  U.  S. 
769;  United  States  v.  City  of  New 
Orleans,  98  U.  S.  381;  Ex  parte  Par- 
sons, 1  Hughes,  282,  Fed.  Cas.  No. 
10,774;  Welch  v.  Ste.  Genevieve,  1 
Dill.  130,  Fed.  Cas.  No.  17,372;  Lan- 
sing v.  County  Treasurer,  1  Dill. 
522,  Fed.  Cas.  No.  16,538;  Britton 
v.  Platte  City,  2  Dill.  1,  Fed.  Cas. 
No.  1,907;  Com.  v.  Select  &  Common 
Councils  of  Pittsburgh,  34  Pa.  496; 
Com.  v.  Allegheny  Com'rs,  37  Pa. 
277. 

102  People  v.  Stockton  &  C.  R.  Co., 
49  Cal.  414;  Chicago  &  N.  W.  R.  Co. 
v.  People,  174  111.  80;  City  of  In- 
dianapolis v.  Morris,  25  Ind.  App. 
409,  58  N.  E.  510;  City  of  Owens- 
boro  v.  Callaghan,  13  Ky.  L.  R.  418, 
17  S.  W.  278;  Halleck  v.  Inhabitants 
of  Boylston,  117  Mass.  469,  constru- 
ing Mass.  St.  1870,  c.  196,  §  3; 
Koontz  v.  Burgess  &  Com'rs  of  Han- 
cock, 64  Md.  134. 

Auditor  General  v.  McArthur,  87 
Mich.  457.  A  school  tax  affecting  a 
portion  only  of  the  taxable  property 
within  the  school  district  is  void. 
Lockey  v.  Walker,  12  Mont.  577. 
Under  Const,  art.  12,  §§  4,  5,  11, 
municipal  authorities  are  vested 
with  a  discretionary  power  in  the 
determination  of  the  property  as- 
sessment, the  basis  of  taxation. 
Stephens  v.  School  Dist.  No.  21,  6 


Or.  353.  The  assessment  of  prop- 
erty for  school  taxes  should  be  de- 
termined upon  the  same  general 
principles  governing  the  making 
and  the  assessments  for  general 
taxes.  San  Antonio  St.  R.  Co.  v. 
City  of  San  Antonio,  22  Tex.  Cir. 
App.  341.  Construing  San  Antonio 
city  charter,  §  194,  as  limited  by 
Const,  art.  8,  §§  5  and  11,  relating  to 
the  taxation  of  railroad  property. 
Eustis  v.  City  of  Henrietta,  90  Tex. 
468,  39  S.  W.  567;  Bigelow  v.  Town 
of  Washburn,  98  Wis.  553,  74  N.  W. 
362;  Hixon  v.  Oneida  County,  82 
Wis.  515. 

103  Murphy  v.  Harbison,  29  Ark. 
340;  Holland  v.  Davies,  36  Ark.  446. 
In  the  absence  of  a  showing  of  an 
injury,  a  school  district  tax  not  held 
invalid  because  the  polls  were  clos- 
ed before  the  time  fixed  by  law. 
Rogers  v.  Kerr,  42  Ark.  100.  The 
vote  should  be  for  a  specified 
amount.  Cooper  v.  Miller,  113  Cal. 
238,  45  Pac.  325;  Prowers  County 
Com'rs  v.  Pueblo  &  A.  V.  R.  Co.,  3 
Colo.  App.  398,  33  Pac.  682;  Pickett 
v.  Russell,  42  Fla.  116,  634,  28  So. 
764;  Ayers  v.  McCalla,  95  Ga.  555, 
22  S.  E.  295;  Chicago  &  N.  W.  R. 
Co.  v.  People,  174  111.  80.  A  vote 
based  upon  a  vote  of  the  people  and" 
other  preliminary  proceedings  is 
presumed  valid. 

Chicago  &  N.  W.  R.  Co.  v.  People, 
18*  111.  240;  Houston  v.  Clay  Coun- 
ty, 18  Ind.  396;  Locker  v.  Keller, 
110  Iowa,  707,  80  N.  W.  433;  Mac- 


316 


TAXATION. 


727 


§  316. 


Agency  of  tax  levy. 

The  power  of  making  such  assessment  is  vested  by  law  either  in 
certain  officials  or  official  bodies;10*  they,  in  the  performance  of 


Kenzie  v.  Wooley,  39  La.  Ann.  944; 
Longyear  v.  Auditor  General,  72 
Mich.  415,  40  N.  W.  738;  Gamble  v. 
Auditor  General,  78  Mich.  302,  44 
N.  W.  329,  and  Newaygo  County  Mfg. 
Co.  v.  Echtinaw,  81  Mich.  416,  45  N. 
W.  1010,  hold  that  upon  a  failure  of 
the  electors  to  levy  the  taxes  need- 
ed, under  How.  St.  of  Mich.  §  750, 
a  town  board  has  authority  to  act 
and  raise  the  necessary  amount. 

Tillotson  v.  Webber,  96  Mich.  114, 
55  N.  W.  837;  Williams  v.  Mears,  61 
Mich.  86.  The  vote  of  electors  to 
levy  a  tax  can  only  be  proved  by  of- 
ficial records.  Auditor  General  v. 
Duluth,  S.  S.  &  A.  R.  Co.,  116  Mich. 
122,  74  N.  W.  505;  Auditor  General 
v.  Sparrow,  116  Mich.  574,  74  N.  W. 
881.  When  electors  "neglect  or  re- 
fuse" to  vote  money  to  defray  town- 
ship expenses  under  public  laws  of 
Michigan,  the  town  board  are  author- 
ized to  act  in  this  respect.  Thayer 
Lumber  Co.  v.  Springfield  Tp.,  131 
Mich.  12,  90  N.  W.  677;  Taft  v.  Bar- 
rett, 58  N.  H.  447;  Vail  v.  Bentley, 
23  N.  J.  Law  (3.  Zab.)  532;  Canda 
Mfg.  Co.  v.  Inhabitants  of  Wood- 
bridge  Tp.,  58  N.  J.  Law,  134,  32  Atl. 
66;  Apgar  v.  Van  Syckel,  46  N.  J. 
Law,  492.  Meetings  for  such  pur- 
pose must  be  regularly  called. 

Haley  v.  Whitney,  53  Hun  (N.  Y.) 
119;  Vaughn  v.  School  Dist.  No.  31, 
27  Or.  57,  39  Pac.  393;  Mowry  v. 
Mowry,  20  R.  I.  74,  37  Atl.  306; 
Martin  v.  School  Dist.  of  Laurens, 
57  S.  C.  125.  A  taxpayer  attending 
and  taking  part  in  the  proceedings 
of  such  an  election  is  estopped  to 
deny  its  legality.  Rhomberg  v.  Mc- 
Laren, 2  Tex.  Civ.  App.  391,  21  S.  W. 


571;  Miller  v.  Crawford  Independent 
School  Dist.,  26  Tex.  Civ.  App.  495, 
63  S.  W.  894;  Adams  v.  Sleeper,  64 
Vt.  544;  Soens  v.  City  of  Racine,  10 
Wis.  271. 

104  Purcell  v.  Town  of  Bear  Creek, 
138  111.  524,  28  N.  E.  1085,  affirming 
39  111.  App.  499;  Bebb  v.  People,  172 
111.  376.  County  Com'rs  under  Rev. 
St.  of  1893,  c.  139,  have  power  to  as- 
sess and  collect  town  taxes.  Chi- 
cago &  N.  W.  R.  Co.  v.  People,  174 
111.  80.  The  signatures  of  a  ma- 
jority of  the  highway  commission- 
ers to  a  road  tax  list  is  sufficient  to 
sustain  its  legality.  Chicago  &  N. 
W.  R.  Co.  v.  People,  183  111.  247; 
Southern  Warehouse  &  Transfer  Co. 
v.  Mechanics'  Trust  Co.,  21  Ky.  L. 
R.  1734,  56  S.  W.  162.  It  is  not 
necessary  that  the  tax  board  should 
be  one  de  jure.  Connelly  v.  Trego 
County  Com'rs,  64  Kan.  168,  67  Pac. 
453;  Hall  v.  Anne  Arundel  County 
Com'rs,  94  Md.  282,  51  Atl.  86;  Mills 
v.  Richland  Tp.,  72  Mich.  100;  Bar- 
ber Asphalt  Pav.  Co.  v.  Ullman, 
137  Mo.  543;  Hutchinson  v.  City  of 
Omaha,  52  Neb.  345,  72  N.  W.  218; 
State  v.  Aitken,  62  Neb.  428,  87  N. 
W.  153;  Hayes  v.  Hanson,  12  N.  H. 
284. 

Ne-ha-sa-ne  Park  Ass'n  v.  Lloyd, 
25  Misc.  207,  55  N.  Y.  Supp.  108. 
The  authority  of  taxing  officials  is 
confined  to  the  territory  within 
their  jurisdiction.  State  v.  Wood- 
side,  30  N.  C.  (8  Ired.)  104.  A  ma- 
jority of  an  official  body  acting  at 
an  official  meeting  may  levy  local 
taxes.  Board  of  Education  of  Og- 
den  v.  Brown,  12  Utah,  251,  42  Pac. 
1109. 


728 


PUBLIC  REVENUES. 


their  duties,  are  limited  strictly  to  their  statutory  authority;  tax 
laws  are  construed  technically.  The  power  to  assess  or  levy 
taxes  either  as  to  amount  or  as  affecting  certain  interests  cannot 
be  implied  but  must  be  found  in  some  express  provision  of  the 
law.105  If  the  authority  prescribes  conditions  either  as  to  the 
manner,106  the  time,107  or  the  place  and  manner108  of  the  exer- 


105  Comstock  v.  County  of  Yolo, 
71  Cal.  599,  12  Pac.  728;  Peoria,  D. 
&  E.  R.  Co.  v.  People,  141  111.  483, 
31  N.  E.  113;  Chicago  &  N.  W.  R. 
Co.  v.  People,  184  111.  174;  State  v. 
Hannibal  &  St.  J.  R.  Co.,  87  Mo. 
236.  A  county  court  has  no  implied 
power  to  levy  a  tax,  and  conditions 
imposed  by  the  legislature  in  con- 
ferring the  power  must  be  strictly 
observed. 

State  v.  Hannibal  &  St.  J.  R.  Co., 
135  Mo.  618;  City  of  Aurora  v.  Mc- 
Gannon,  138  Mo.  38;  Libby  v.  State, 
59  Neb.  264;  Sharp  v.  Froehlich  (N. 
J.  Law)  37  Atl.  1024;  Grady  v. 
Kearney  Tp.  Committee,  59  N.  J. 
Law,  86;  City  of  Charlotte  v.  Shep- 
ard,  120  N.  C.  411;  Elliott  v.  Berry, 
41  Ohio  St.  110;  Morris  v.  Cum- 
mings,  91  Tex.  618,  45  S.  W.  383. 
Where  a  special  grant  to  levy  taxes 
is  doubtful,  the  doubt  should  be  re- 
solved against  the  exercise  of  the 
power.  City  of  Denison  v.  Foster, 
90  Tex.  22;  Mueller  v.  Town  of  Ca- 
vour,  107  Wis.  599,  83  N.  W.  944. 

loe  Hilliard  v.  Bunker,  68  Ark.  340. 
No  roll  call  of  yeas  and  nays  neces- 
sary on  voting  appropriations. 
Leachman  v.  Dougherty,  81  111.  324; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Max- 
well, 10  Kan.  App.  370,  59  Pac.  1087; 
City  of  Somerset  v.  Somerset  Bank- 
ing Co.,  109  Ky.  549,  60  S.  W.  5. 
Where  a  city  council  has  authority 
to  levy  taxes,  the  action  of  a  quorum 
is  necessary  to  levy  a  legal  tax. 
State  v.  Mississippi  River  Bridge 
Co.,  134  Mo.  321,  35  S.  W.  592;  State 


v.  Odom,  1  Speers  (S.  C.)  263;  Hen- 
derson v.  Hughes  County,  13  S.  D. 
576,  83  N.  W.  682. 

107  City  of  San  Luis  Obispo  v.  Pet- 
tit,  87  Cal.  499;  St.  Louis  Bridge  & 
Tunnel  R.  Co.  v.  People,  127  111.  627. 
Commissioners  who  meet  for  the  de- 
termination of  the  tax  rate  on  the 
day  fixed  by  statute  may  defer  ac- 
tion until  an  adjourned  meeting, 
and  a  levy  made  then  is  valid. 

Hodges  v.  Crowley,  186  111.  305. 
A  levy  of  taxes  for  future  years 
cannot  be  made  nor  based  upon  the 
assessment  of  a  previous  year.  Chi- 
cago &  N.  W.  R.  Co.  v.  People,  193 
111.  594;  Clark  v.  Town  of  Nobles- 
ville,  44  Ind.  83;  Wilcox  v.  Eagle 
Tp.,  81  Mich.  271,  45  N.  W.  987.  In 
re  Cloquet  Lumber  Co.,  61  Minn. 
233.  "It  is  urged  by  respondent  that 
this  tax  is  illegal  and  void,  for  the 
reason  that  the  statute  requires  the 
village  council  to  specify  the  amount 
of  tax  to  be  levied  and  not  the  rate 
per  cent.  Laws  {885,  c.  145,  §  34 
(Gen.  St.  1894,  §  1251)  provides: 
'The  village  council  shall,  on  or  be- 
fore the  15th  day  of  August,  in  each 
year,  by  resolution,  to  be  entered 
of  record,  determine  the  amount  of 
corporation  taxes  to  be  levied  and 
assessed  on  the  taxable  property  in 
such  village  for  the  current  year, 
which  shall  not  exceed  in  any  one 
(1)  year  two  percentum  of  the  as- 
sessed valuation  of  such  property. 
*  *  *  On  or  before  the  first  day 
of  September,  in  each  year,  the  vil- 
lage recorder  shall  deliver  to  the 


316 


TAXATION. 


729 


cise  of  the  power,  such  conditions  must  be  complied  with  that 
the  tax  be  legal.    Limitations  upon  the  power  of  taxation  usually 


county  auditor  a  copy  of  all  such 
resolutions,  certified  under  his  hand 
and  the  corporate  seal  of  such  vil- 
lage, and  such  auditor  shall  enter 
such  taxes  upon  the  tax  books  in  the 
same  manner  as  he  is  required  to  do 
in  levying  town  taxes.'  Gen.  St.  1904, 
§  1557  provides:  'All  taxes  shall  be 
levied  or  voted  in  specific  amounts 
and  the  rates  per-centum  shall  be 
determined  from  the  amount  of 
property  as  equalized  by  the  state 
board  of  equalization  each  year,  ex- 
cept such  general  taxes  as  may  be 
definitely  fixed  by  law.  The  state 
tax  shall  be  levied  by  the  legislature 
and  the  rate  of  such  tax  shall  be 
certified  by  the  auditor  of  state  to 
each  county  auditor  on  or  before  the 
first  day  of  October,  annually.'  *  *  * 
Construing  these  two  sections  to- 
gether it  is  evident  that  it  is  the 
imperative  duty  of  the  village  coun- 
cil to  fix  the  specific  amount  of  the 
tax  to  be  levied,  not  the  rate;  and 
that  It  is  the  duty  of  the  county 
auditor  to  calculate  and  ascertain 
the  rate.  This  the  county  auditor 
must  do  after  the  state  board  of 
equalization  has  equalized  the  as- 
sessment, while  the  village  council 
are  required  to  determine  the 
amount  of  money  necessary  to  be 
raised  before  said  board  has  acted. 
On  behalf  of  the  state  it  is  urged 
that  it  should  be  presumed  that  the 
village  council  inspected  the  assess- 
ment book  and  ascertained  the  as- 
sessed valuation  of  all  the  taxable 
property  in  the  village  before  they 
passed  the  resolution  in  question, 
and  that  they  fixed  the  rate  specified 
in  the  resoluion  accordingly.  Even 
if  it  should  be  so  presumed,  it  does 


not  follow  that  the  resolution  could 
be  upheld  as  the  assessed  valuation 
of  the  village  might  be  very  ma- 
terially changed  by  the  subsequent 
equalization.  But  we  are  of  the 
opinion  that  it  should  not  be  so  pre- 
sumed. Said  section  1557  provides 
that  'the  rates  percentum  shall  be 
determined  from  the  amount  of 
property  as  equalized  by  the  state 
board  of  equalization.'  There  is  as 
much  reason  for  presuming  that  the 
council  attempted  to  estimate  what 
that  valuation  would  be  after  it  was 
finally  equalized,  or  that  they  took 
a  random  guess  at  what  such  valua- 
tion was  or  would  be  without  any 
examination  or  investigation  at  all. 
Some  of  the  members  may  have 
made  such  investigation  and  others 
not.  To  sustain  this  resolution 
would  be  to  open  the  door  to  the 
most  loose  and  reckless  methods  of 
conducting  public  business.  Such  a 
way  of  specifying  the  amount  to  be 
raised  by  taxation  might  be  made 
a  cover  for  raising  a  fund  much 
larger  than  necessary,  without  call- 
ing public  attention  to  the  fact.  The 
language  of  the  statute  is  impera- 
tive, the  intention  plain.  By  speci- 
fying in  dollars  and  cents  the 
amount  to  be  raised,  it  is  more  read- 
ily understood  by  the  members  of 
the  council  and  the  interested  pub- 
lic; and  there  is  less  opportunity 
for  fraud,  deception  or  mistake." 
Borough  of  Eatontown  v.  Metzgar, 
43  N.  J.  Law,  170;  Hernandez  v. 
City  of  San  Antonio  (Tex.  Civ. 
App.)  39  S.  W.  1022;  Berry  v.  City 
of  San  Antonio  (Tex.  Civ.  App.)  46 
S.  W.  273. 
108  People  v.  Chicago  &  N.  W.  R. 


730 


PUBLIC  REVENUES. 


§   316 


exist  restricting  the  amount  which  can  be  legally  levied  or  col- 
lected by  either  specifying  the  gross  rate  or  amount.  Officers  in 
charge  cannot  exceed  in  this  regard  the  limitations  thus  set.109 


Co.,  183  111.  311;  Chicago  &  N.  W. 
R.  Co.  v.  People,  184  111.  240.  Offi- 
cers must  act  as  a  body  and  at  the 
place  designated  by  law.  The  court 
say:  "The  nineteenth  objection  is 
to  the  school  tax  levied  in  Union 
District  number  nine  in  the  towns 
of  Grafton  and  Coral.  Here,  again, 
the  directors  had  a  meeting  and 
figured  out  that  they  wanted  $250. 
The  meeting  was  held  in  April. 
There  was  no  certificate  made  by 
the  board  and  nothing  done  about 
it,  but  on  August  3,  1898,  one  of  the 
directors  got  a  certificate  and  sign- 
ed it,  and  took  it  to  the  house  of 
the  president  and  he  signed  it,  and 
it  was  taken  to  the  treasurer.  The 
certificate  was  a  nullity.  *  *  * 
The  twentieth  objection  was  to  the 
town  tax  of  Seneca.  *  *  *  The 
evidence,  however,  showed  that  the 
clerk  sent  a  certificate  of  some  sort 
to  the  county  clerk  and  the  county 
clerk  said  it  was  not  right  and  sent 
him  another  blank  which  he  filled 
up  but  he  does  not  know  what  he 
wrote.  He  was  told  afterward  that 
it  was  not  right,  and  he  tol'd  another 
party  to  tell  the  county  clerk  to  cor- 
rect it.  The  certificate  was  changed 
by  the  county  clerk  and  showed  an 
erasure  which  was  not  explained. 
The  certificate  was  in  regular  form 
when  offered  on  the  trial,  but  it  had 
been  altered.  He  could  not  author- 
ize the  county  clerk  to  make  a  cer- 
tificate for  him,  and  he  might  just 
as  well  have  sent  word  to  the  clerk 
to  make  the  certificate  as  to  alter  it. 
The  certificate  upon  which  the  levy 
was  made  was  illegal." 

109  Thatcher  v.  Chicago  N.  W.  R. 


Co.,  120  111.  560;  Village  of  Hyde 
Park  v.  Ingalls,  87  111.  11.  On  the 
other  hand,  courts  ordinarily  will 
not  interfere  in  the  exercise  of  the 
discretion  vested  in  municipal  offi- 
cers to  levy  taxes  when  within  the 
limit  fixed  by  law.  Hale  v.  People, 
87  111.  72.  The  power  to  levy  and 
collect  special  assessments  exists  in- 
dependent of  any  provisions  as  to 
the  rate  or  amount  of  general  taxes 
which  can  be  legally  raised.  • 

Vittum  v.  People,  183  111.  154;  In- 
dianapolis School  Com'rs  v.  Magner, 

84  Ind.  67.     The  authority  to  levy  a 
poll  tax  cannot  be  implied  from  a 
provision    granting    the    power    "to 
levy  all  taxes  for  the  support  of  the 
schools"   limited   by   a   clause   mak- 
ing it  unlawful  "to  levy  or   assess 
taxes  for  any  one  year  exceeding  in 
the  aggregate  20  cents  on  each  $100 
of  property." 

City  of  Baltimore  v.  Gorter,  93 
Md.  1,  48  Atl.  445;  Joyner  v.  In- 
habitants of  School  Dist.  No.  3,  57 
Mass.  (3  Gush.)  567;  Somo  Lumber 
Co.  v.  Lincoln  County,  110  Wis.  286, 

85  N.  W.  1023.     In  the  statute   (un- 
der discussion)   it  is  provided  that: 
"  'A  tax  levied  for  any  one  year  for 
municipal    purposes    together    with 
the   tax   required    to    be    levied    for 
state,     county,    county    school    and 
school  district  purposes,  and  for  de- 
linquent   taxes    for    the    preceding 
year,   shall  not  exceed   the  amount 
of    three    percent   of    the    assessed 
value  of  real  and  personal  property 
of   the   city  in  that   year.'     *    *     * 
Counsel  for  the  defendants  contend 
that    this    is    unconstitutional    and 
also  void  for  uncertairfy.     We  per- 


§  316 


TAXATION. 


731 


Where  rates,  however,  or  amounts,  are  levied  in  excess  of  those 
allowed  by  law,  this  condition  does  not  usually  render  the  whole 
tax  void  if  the  illegal  excess  can  be  separated  from  that  author- 
ized when  the  excess  alone  is  usually  held  void  and  not  capable  of 
enforcement.110  The  converse  of  this  principle  is  also  true  that 
where  officials  act  within  the  limits  prescribed  by  law  and  within 
their  discretionary  powers,  their  action  cannot  be  set  aside  by 
higher  authority.111 


ceive  no  uncertainty  in  the  language 
employed.  The  constitution  of  this 
state  expressly  gave  to  the  legisla- 
ture power,  and  charged  it  with  the 
duty  'to  provide  for  the  organiza- 
tion of  cities  and  incorporated  vil- 
lages and  to  restrict  their  power  of 
taxation  so  as  to  prevent  abuses  in 
assessments  and  taxation."  The  re- 
striction in  question  must  be  deem- 
ed to  have  been  made  pursuant  to 
such  mandate."  State  v.  Laramie 
County  Com'rs,  8  Wyo.  404,  55  Pac. 
451. 

noMcIntosh  v.  People,  93  111.  540; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Wood- 
cock, 18  Kan.  20;  Union  Pac.  R.  Co. 
v.  Cheyenne  County,  64  Neb.  777,  90 
N.  W.  917;  Dal  ton  v.  City  of  East 
Portland,  11  Or.  426;  Nalle  v.  City  of 
Austin,  91  Tex.  424,  44  S.  W.  66;  City 
of  San  Antonio  v.  Berry,  92  Tex. 
319,  48  S.  W.  496;  Rowell  v.  Horton, 
57  Vt.  31;  State  v.  Headlee,  22  Wash. 
126,  60  Pac.  126.  A  tax  levy  if  too 
large  may  be  reduced  by  the  county 
commissioners  originally  making  it. 

in  Board  of  Education  of  Sacra- 
mento v.  Trustees  of  Sacramento, 
96  Cal.  42;  Wood  v.  School  Corp.  of 
Tipton,  132  Ind.  206;  Seward  v. 
Rheiner,  2  Kan.  App.  95;  Union 
School  Dist.  v.  Parris,  97  Mich.  593; 
State  v.  Lakeside  Land  Co.,  71  Minn. 
283,  73  N.  W.  970.  In  this  case  the 
Bchool  tax  having  been  extended  on 
the  tax  list,  the  county  commission- 


ers undertook  to  regulate  the  levy 
of  the  same.  Justice  Mitchell  said: 
"The  line  of  argument  adopted 
*  *  *  is  substantially  as  follows: 
The  act  creating  the  independent 
school  district  of  Duluth  provides 
that  it  'shall  be  governed  by  the 
provisions  of  the  general  laws  of  the 
state  of  Minnesota  governing  inde- 
pendent school  districts,  not  incon- 
sistent with  the  provisions  of  this 
act;'  that  as  the  special  act  makes 
no  provision  for  the  levy  of  taxes  for 
any  purpose,  therefore  we  must  refer 
to  the  provisions  in  that  regard  of  the 
general  laws  governing  independent 
school  districts;  that  those  laws  pro- 
vide that  'all  taxes  raised  by  virtue 
of  this  chapter  shall  be  levied  and 
collected,  *  *  *'  and  that  as  Gen. 
St.  1894,  §  1557,  provides  that  'coun- 
ty taxes  shall  be  levied  by  the  coun- 
ty commissioners,'  therefore,  taxes 
for  the  purposes  of  an  independent 
school  district  must  be  levied  by 
the  county  commissioners.  It  will 
be  noticed  that  the  provision  for 
levying  taxes  in  independent  school 
districts  is  substantially  the  same  as 
that  applicable  to  common  school 
districts  (Gen.  St.  1894,  §  3693)  un- 
less the  word  'special'  used  in  the 
latter  has  some  restrictive  effect, — 
a  question  which  is  not  important 
here.  *  *  *  Counsel's  argument 
is  sound  if  the  meaning  which  they 
attach  to  the  word  'levy'  !<*  correct. 


732  PUBLIC  REVENUES. 

§  317.    Apportionment  of  taxes. 


§  317 


Tax  officials  may  have  in  addition  to  their  ordinary  duties  the 
further  one  of  apportioning  between  different  funds,  or  subsid- 
iary organizations,  the  taxes  they  may  have  previously  levied 
or  assessed;  this  duty,  it  is  usually  held,  is  not  discretionary  but 
a  purely  ministerial  act  involving  no  judicial  functions.112  The 


But  there  is  fallacy  in  the  argu- 
ment. School  districts,  like  towns 
and  cities,  are  territorially,  but  in 
no  other  sense,  parts  of  the  county 
in  which  they  are  situated.  Ac- 
cording to  the  general  policy  of  our 
laws,  they  are,  as  quasi  municipal 
corporations,  and  for  the  purposes 
for  which  they  are  created,  co-ordi- 
nate with,  and  not  subordinate  to, 
the  counties  in  which  they  are  situ- 
ated. The  counties  are  created  for 
certain  purposes  and  these  other 
quasi  municipalities  for  entirely  dif- 
ferent purposes.  Each,  within  its 
own  particular  sphere,  manages  its 
own  affairs  exempt  from  the  control 
or  supervision  of  the  other,  unless 
otherwise  expressly  provided  by 
statute.  They  levy  their  own  taxes 
and  expend  them  for  their  own  pur- 
poses although  for  reasons  of  con- 
venience and  economy,  the  county 
officials  are  generally  used  as  mere 
ministerial  agents  to  extend  the  tax- 
es on  the  tax  lists  and  collect  them. 
They  all  levy  their  own  taxes  in 
the  sense  of  voting  them  or  de- 
termining their  amount,  but,  having 
no  machinery  of  their  own  for  their 
collection,  they  are  required  to  cer- 
tify their  action  to  the  county  audi- 
tor, whose  duty  it  is  to  extend  them 
on  the  tax  books  as  part  of  the 
taxed  for  the  current  year,  and 
thereafter  the  county  treasurer  col- 
lects them,  the  same  as  other  taxes, 
and  pays  them  over  to  the  mu- 
nicipality to  which  they  belong.  No 


reason  can  be  assigned  why  this 
system  should  not  apply  to  school 
districts  or  independent  school  dis- 
tricts as  well  as  to  other  quasi  mu- 
nicipalities, or  why  their  power  to 
levy  taxes  for  their  own  purposes 
should  be  subject  to  the  veto  or 
supervision  of  the  county  commis- 
sioners. And  we  find  nothing  in 
the  statute  indicating  any  legisla- 
lative  intent  to  make  them  an  ex- 
ception to  the  general  rule."  Board 
of  Education  of  Kingfisher  v.  City 
of  Kingfisher,  5  Okl.  82,  48  Pac.  103. 
us  City  of  New  Orleans  v.  Fisher, 
180  U.  S.  185.  Interest  cannot  be 
collected  upon  funds  that  officials 
have  collected  and  failed  to  proper- 
ly apportion  until  after  the  lapse  of 
time  when  required  to  do  so  or  a 
failure  to  account  for  the  same  on 
demand.  The  court  say:  "The  city 
occupied  the  position  as  agent  of 
the  school  board  to  collect  and  pay 
over  school  taxes,  yet  it  may  fairly 
be  said  that,  under  the  legislation 
upon  the  subject,  it  was  not  the 
duty  of  the  city  to  pay  the  money 
over  immediately,  but  only  as  occa- 
sion might  arise  and  that,  as  no 
charge  of  fraudulent  conversion  was 
made,  interest  would  not  commence 
to  run  until  after  failure  to  pay 
when  required  to  do  so,  or  failure 
to  account  on  demand.  Where  in- 
terest is  sought  by  way  of  damages 
for  delay,  courts  of  equity  exercise 
a  certain  discretion  as  to  its  allow- 
ance. In  view  of  the  acquiescence 


§  318 


PUBLIC  REVENUES. 


733 


usual  principles  apply  regulating  the  performance  of  such  acts 
as  distinguished  from  those  of  a  discretionary  or  judicial  char- 
acter. 

§  318.    Tax  levies ;  preliminary  proceedings. 

The  proceedings  involved  in  the  levy  or  assessment  or  collec- 
tion of  a  legal  tax  may  be  roughly  classed  as  those  preliminary 
to  the  actual  levy  or  assessment  and  those  which  are  authorized 
as  the  result  of  such  preliminary  proceedings. 

The  validity  of  the  tax  considered  with  reference  to  such  pre- 
liminary proceedings  may  depend  upon  an  official  act  based  upon 
some  express  provision  of  a  charter,  ordinance,  legislative  act  or 
constitution  or  the  legal  action  of  the  duly  qualified  electors  for 
their  taxing  district.113 


of  the  school  board  in  the  retention 
by  the  city  of  the  interest  collected 
on  school  taxes,  an  acquiescence  in 
good  faith  so  far  as  appears,  the 
attitude  of  the  city  as  a  public  cor- 
poration; and  the  lack  of  averment 
or  evidence  of  demand  prior  to  the 
filing  of  the  bill,  or  of  effort  to  com- 
pel an  accounting,  we  think  that  in- 
terest should  not  be  allowed  in  this 
case  prior  to  May  11,  1896." 

Town  of  Fairplay  v.  Park  County 
Com'rs,  29  Colo.  57,  67  Pac.  152; 
Sangamon  County  Sup'rs  v.  City  of 
Springfield,  63  111.  66.  In  such  ap- 
portionment if  one  political  division 
is  apparently  unjustly  discriminated 
against,  still  the  statute  authorizing 
the  action,  however,  is  not  in  con- 
travention of  the  constitutional  pro- 
vision requiring  taxes  levied  to  be 
uniform  in  respect  to  persons  and 
property  within  the  jurisdiction  of 
a  taxing  district.  Maloy  v.  Madget, 
47  Ind.  241.  The  use  of  moneys 
thus  apportioned  for  an  improper 
purpose  can,  however,  be  restrained. 

Dist.  Tp.  of  Spencer  v.  Dist.  Tp.  of 
Riverton,  56  Iowa,  85;  Sheridan  v. 
Van  Winkle,  43  N.  J.  Law,  579;  Wal- 


lendorf  v.  Justices  of  Cole  County, 
45  Mo.  228;  School  Dist.  No.  1  v. 
Webber,  75  Mo.  558;  In  re  Railroad 
School  Tax  Apportionment,  78  Mo. 
596.  A  law  providing  for  the  ap- 
portionment of  school  taxes  levied 
on  railroad  property  to  be  distribu- 
ted to  different  school  districts  in 
proportion  to  the  number  of  school 
children  is  not  unconstitutional  as 
levying  taxes  on  property  in  one  dis- 
trict for  the  benefit  of  another. 

State  v.  Schnecko,  11  Mo.  App. 
165;  Clark  v.  Sheldon,  134  N.  Y.  333, 
19  L.  R.  A.  138.  Any  action  by  offi- 
cials diverting  a  fund  from  the  pur- 
pose designated  by  law  is  illegal; 
there  is  a  personal  responsibility  in 
case  of  an  improper  use.  Seanor 
v.  Whatcom  County  Com'rs,  13 
Wash.  ,48;  State  v.  'Lament,  86  Wis. 
563. 

us  Weber  v.  Ohio  &  M.  R.  Co.,  108 
111.  451;  St.  Louis,  R.  I.  &  C.  R.  Co. 
v.  People,  177  111.  78;  South  Park 
Com'rs  v.  First  Nat.  Bank,  177  III 
234;  Cole  v.  State,  131  Ind.  591,  31  N. 
E.  458;  Constant  v.  Parish  of  East 
Carroll,  105  La.  Ann.  286,  29  So. 
728;  Irvin  v.  Gill,  155  Pa,  8;  Board 


734 


PUBLIC  REVENUES. 


§  313 


This  may  be  either  an  official  order  or  certificate  of  a  prescribed 
form  covering  the  matters  required  by  law114  or  it  may  consist  of 
a  certificate  or  an  estimate  of  the  probable  amount  or  rate  of 
taxes  necessary  to  meet  the  expenditures  or  current  expenses 
either  of  the  municipality  itself  or  of  some  one  of  its  divisions 
or  departments.116  If  the  statute  prescribes  the  form  of  such 


of  Education  of  Ogden  v.  Brown,  12 
Utah,  251,  42  Pac.  1109. 

11*  Baltimore  &  O.  S.  W.  R.  Co. 
v.  People,  156  111.  189,  40  N.  E.  834. 
In  an  action  to  set  aside  taxes,  such 
a  certificate  is  not  conclusive.  Chi- 
cago &  N.  W.  R.  Co.  v.  People,  171 
111.  525;  Reed  v.  City  of  Louisville, 
21  Ky.  L.  R.  1636,  61  S.  W.  11; 
Sage  v.  Stevens,  72  Mich.  638,  40  N. 
W.  919;  Township  of  Bangor  v. 
Smith  Transp.  Co.,  106  Mich.  223, 
64  N.  W.  28;  Muskegon  v.  Martin 
Lumber  Co.,  86  Mich.  625;  Port 
Huron  Tp.  v.  Potts,  78  Mich.  435; 
Burlington  &  M.  R.  R.  Co.  v.  Lan- 
caster County  Com'rs,  12  Neb.  324; 
State  v.  Elba  Sup'rs,  34  Wis.  169. 
The  notice,  however,  should  be  in 
writing. 

us  People  v.  Lodi  High  School 
Dist,  124  Gal.  694;  People  v.  Knopf, 
171  111.  191;  Chicago  &  N.  W.  R.  Co. 
v.  People,  171  111.  249.  The  failure 
to  comply  with  directory  provisions 
only  will  not  invalidate  a  tax  de- 
pending for  its  legality  upon  a  cer- 
tificate, not  filed  as  provided  by  law. 
Ritz  v.  Tannehill,  69  Iowa,  476; 
State  v.  City  of  Shreveport,  33  La. 
Ann.  1179;  Police  Jury  of  Pointe 
Coupee  v.  Bouanchaud,  51  La.  Ann. 
860;  City  of  Baltimore  v.  Gorter,  93 
Md.  1,  48  Atl.  445;  Turnbull  v.  Al- 
pena  Tp.,  74  Mich.  621,  42  N.  W. 
114. 

Auditor  General  v.  McArthur,  87 
Mich.  457.  The  burden  of  proof  is 
upon  the  one  attacking  the  correct- 
ness and  legality  of  such  a  certifi- 


cate or  statement.  Boyce  v.  Peter- 
son, 84  Mich.  490;  Adams  v.  Capital 
State  Bank,  74  Miss.  307,  20  So. 
881;  State  v.  Phipps,  148  Mo.  31,  49 
S.  W.  865.  A  correct  estimate  may 
be  substituted  for  an  imperfect  one 
if  done  within  the  time  fixed  by 
law.  The  proceedings  are  based 
upon  such  statement  as  filed,  and 
errors  in  the  old  one  will  not  affect 
the  tax  levy. 

Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Chapin,  162  Mo.  409,  62  S.  W.  1000; 
Engstad  v.  Dinnie,  8  N.  D.  1,  76  N. 
W.  292.  "The  measure  we  are  con- 
sidering, adopted  December  18th,  as- 
sumed to  appropriate  $50,000  out  ot 
the  general  fund  of  the  city  for  the 
purpose  of  paying  salaries,  and  the 
incidental  expenses  of  the  city  gov- 
ernment, including  the  payment  of 
city  orders;  and  also,  incidentally, 
for  the  purpose  of  'defraying  the  ex- 
pense of  erecting  and  completing 
and  installing  an  electric  light  plant 
for  said  city,  and  the  operating  ex- 
penses of  the  same  during  said  fiscal 
year.'  From  this  language  it  ap- 
pears that,  while  the  city  council 
attempted  to  appropriate  a  gross 
amount  ($50,000)  from  the  general 
fund  of  the  city  for  certain  purposes 
mentioned,  it  does  not  specify  the 
sum  or  amount  which  each  or  either 
purpose  it  to  receive.  From  this 
language  it  is  impossible  to  deter- 
mine how  much  of  this  appropria- 
tion may  be  expended  for  any  one 
purpose  named  in  the  enactment. 
We  arc  far  from  ho1  ding  that  in  an 


§  318 


TAXATION. 


735 


return,  order,  certificate  or  estimate,  it  can,  if  not  in  this  form, 
furnish  no  basis  for  subsequent  legal  proceedings.116    If,  however, 


appropriation  out  of  the  general 
fund  of  a  city  to  meet  the  ordinary 
expenses  incident  to  carrying  on 
the  city  government  each  item  of 
expense  must  be  anticipated,  and 
stated  in  dollars  and  cents  in  the 
appropriation  bill.  No  such  rigid 
and  fanciful  requirement  as  that 
suggested  is  made  by  the  law,  and 
we  certainly  shall  not  attempt  to 
read  Into  the  statute  by  construction 
any  such  embarrassing  rule.  But  a 
costly  improvement  such  as  that 
contemplated  in  the  contracts  in 
question  does  not  fall  within  the 
operating  expenses  of  a  city  organ- 
ized under  the  Code.  The  statute 
differentiates  improvements  from 
ordinary  expenses,  and  places  them 
in  a  class  by  themselves.  The  stat- 
ute meets  this  feature  of  the  case 
by  an  express  provision  which  for- 
bids the  city  council  or  any  officer 
of  the  city  from  adding  an  expendi- 
ture upon  any  'improvement'  of  the 
city  over  and  above  the  amount 
named  in  the  annual  appropriation 
bill.  It  declares:  'And  no  expendi- 
ture for  an  improvement  to  be  paid 
for  out  of  the  general  fund  of  the 
corporation  shall  exceed  in  any  one 
year  the  amount  provided  for  such 
improvement  in  the  annual  appro- 
priation bill.'  This  language  im- 
ports that  city  improvements,  such 
as  expensive  public  buildings,  must 
be  provided  for  in  terms  and  in 
amount  by  an  ordinance  embracing 
the  annual  appropriations  of  the 
funds  of  the  city.  When  so  men- 
tioned in  the  annual  appropriations 
the  law,  as  has  been  shown,  further 
requires  the  council  to  levy  the  sum 
appropriated  upon  the  taxpayers  of 
the  city,  and  then  no  other  expendi- 


tures therefor  can  be  made  until  an 
additional  sum  is  appropriated  and 
levied  in  the  succeeding  fiscal  year, 
except  by  the  express  sanction  of  the 
voters.  We  can  think  of  no  greater 
abuse  of  corporate  power  by  the 
council  of  a  city  under  the  'restric- 
tions of  said  charter  than  would  be 
involved  in  expending  the  funds  of 
a  city  in  the  erection  of  costly  pub- 
lic buildings  and  improvements 
without  either  passing  an  ordinance 
authorizing  the  construction  of  such 
improvements,  or  an  ordinance  ap- 
propriating any  specific  amount  to 
be  expended  in  their  construction. 
The  notion  can  never  be  tolerated 
that  a  city  council  may,  without  let 
or  hindrance,  from  the  law  or  the 
taxpayer,  and  at  its  election,  pro- 
ceed to  deplete  the  general  fund  of 
the  city  by  withdrawing  therefrom 
sums  of  money  indefinite  in  amount 
with  which  to  build  costly  public 
improvements  which  improvements 
have  had  no  legal  authorization 
either  from  the  council  or  the  tax- 
payers and  for  which  no  specific 
sums  of  money  have  ever  been  ap- 
propriated or  levied.  Once  concede 
this  power  in  the  council  and  it  fol- 
lows as  a  sequence  that  any  city 
council  may  exhaust  the  general 
funds  at  pleasure  by  expenditures 
for  public  improvements  which 
have  no  legal  authorization  and  for 
the  construction  of  which  no  funds 
have  been  provided.  Fortunately, 
no  such  construction  of  the  law  is 
permissible  in  view  of  its  very  ex- 
plicit provisions  to  the  contrary." 
Powell  v.  St.  Croix  County  Sup'rs, 
46  Wis.  210. 

i"  State       v.       Gadsden       County 
Com'rs,  17  Fla.  418;  Peoria,  D.  &  E. 


736 


PUBLIC  REVENUES. 


§  318 


no  form  is  prescribed  by  law,  one  which  follows  substantially 
the  statutes  and  showing,  if  necessary,  the  authority,  is  consid- 
ered sufficient.1" 

The  statutes  or  constitution  may  provide  the  time  and  the 
manner  in  which  the  official  action  in  the  preceding  paragraph 
shall  be  taken.  All  the  requirements  or  provisions  of  the  law  for 
such  preliminary  matters  as  well  as  the  manner  or  time118  in 


R.  Co.  v.  People,  141  111,  483,  31  N. 
E.  113;  St.  Louis,  R.  I.  &  C.  R.  R. 
Co.  v.  People,  147  111.  9;  Chicago  & 
A.  R.  Co.  v.  People,  163  111.  616; 
Chicago  &  A.  R.  Co.  v.  People,  171 
111.  544;  St.  Louis  R.  I.  &  C.  R.  Co. 
v.  People,  177  111.  78.  A  certificate 
forms  the  basis  of  action  by  the  tax 
levying  officers.  People  v.  Chicago 
&  N.  W.  R.  Co.,  183  111.  311;  St. 
Louis  &  S.  F.  R.  Co.  v.  Gracy,  (Mo.) 
28  S.  W.  736.  If  information  requir- 
ed by  the  statute  can  be  ascertained 
from  calculations  on  the  data  given 
in  the  estimate,  this  will  be  suffi- 
cient. 

Lamb  v.  Hurlf,  38  N.  J.  Law,  310; 
Corrigan  v.  Duryea,  40  N.  J.  Law, 
266.  The  certificate  of  a  district 
clerk  should  show  the  authority  of 
the  electors  authorizing  the  action. 
Townsend  v.  City  of  New  York,  16 
Hun  (N.  Y.)  362;  Thomson  v.  Har- 
ris, 88  Hun,  478,  34  N.  Y.  Supp.  885; 
Arnold  v.  Juneau  County  Sup'rs,  43 
Wis.  627. 

117  Gill  v.  Dunham  (Cal.)  34  Pac. 
68;  Chicago  &  N.  W.  R.  Co.  v.  Peo- 
ple, 184  111.  240.  The  omission  of 
what  is  "held  a  surplusage"  does 
not  affect  the  legality  of  a  tax. 
Robbins  v.  Barren,  33  Mich.  124; 
Boyce  v.  Auditor  General,  90  Mich. 
314,  51  N.  W.  457;  Boyce  v.  Sebring, 
66  Mich.  210.  Where  the  certificate 
contains  facts  from  which  the  items 
can  be  ascertained,  'a  failure  to 
specify  these  will  not  invalidate  it 


or  the  proceedings  thereunder. 
State  v.  West  Duluth  Land  Co.,  75 
Minn.  456,  78  N.  W.  115.  The  rule 
also  applies  to  a  provision  of  the 
statute  which  is  directory  merely 
and  not  mandatory.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  v.  Chapin,  162 
Mo.  409,  62  S.  W.  1000.  The  esti- 
mate need  not  recite  that  the  levy 
was  authorized  by  the  board.  Peo- 
ple v.  Wright,  68  Hun  (N.  Y.)  264. 
usHodgkin  v.  Fry,  33  Ark.  716; 
Cowgill  v.  Long,  15  111.  202;  Gage 
v.  Nichols,  135  111.  128,  25  N.  E.  672, 
following  Mix  v.  People,  72  111.  241. 
A  legal  tax  levy  cannot  be  baser!  on 
a  certificate  filed  after  the  date  fixed 
by  statute.  The  court  say:  "It  is 
next  urged  that  the  local  tax  for 
town,  school,  road  and  bridge  pur- 
poses and  the  tax  for  the  payment 
of  interest  on  registered  bonds,  were 
not  levied  in  the  manner  and  with- 
in the  time  prescribed  by  law,  and 
are,  therefore,  void.  Section  122, 
Laws  1872,  p.  31  provides  that  'the 
proper  authorities  of  towns,  town- 
ships, districts  and  incorporated 
cities,  towns  and  villages  shall  an- 
nually, on  or  before  the  second  Tues- 
day in  August,  certify  to  the  county 
clerk  the  several  amounts  which 
they  require  to  be  raised  by  taxa- 
tion.' In  this  case,  the  certificates 
were  not  filed  until  after  the  time 
specified  in  the  act  had  expired. 
The  language  of  the  statute  is  plain 
and  entirely  unambiguous.  It  will 


§  318 


TAXATION. 


which  action  shall  be  taken  are  considered  technical  and  manda- 
tory in  their  nature  and  as  such  construed  strictly  and  as  limi- 
tations and  restrictions  upon  the  power  of  taxation  whether  as 
exercised  by  the  sovereign  itself  or  by  one  of  its  delegated 
agencies.119  The  power  is  not  possessed  as  a  matter  of  original 


bear  no  construction.  But  it  is 
urged  that  the  law  is  merely  direc- 
tory. Had  the  General  Assembly 
intended  to  permit  the  filing  of  the 
certificate  at  any  time  before  the 
collector's  books  were  delivered  to 
him  by  the  clerk,  why  not  say  so 
and  not  have  specified  that  the  act 
should  be  done  on  or  before  a  speci- 
fied day?  They  must  be  presumed 
to  have  known  that,  from  careless- 
ness or  want  of  information,  cases 
would  occur  in  which  the  certificate 
would  not  be  filed,  and  yet  they  have 
made  no  provision  for  such  a  con- 
tingency. It  is  said  no  reason  ex- 
ists why  the  levy  should  be  made 
and  returned  by  the  second  Tuesday 
in  August.  There  may  be  the  most 
cogent  reasons.  If  any  illegality 
should  exist  in  the  rate  of  the  tax, 
or  the  manner  of  its  levy,  or  want  of 
power  to  levy  the  tax,  either  be- 
cause the  law  has  not  authorized 
it,  or  because  it  is  not  for  an  author- 
ized purpose,  or  if,  from  any  other 
reason,  the  tax  is  illegally  levied, 
the  taxpayers  should  have  a  rea- 
sonable time  within  which  to  take 
steps  to  prevent  its  extension  on  the 
collector's  books.  Again,  to  enable 
the  books  to  be  properly  prepared, 
the  clerk  must  have  a  reasonable 
time  for  their  preparation  and  the 
extension  of  the  various  taxes  after 
the  levy  is  made.  If  the  officers 
have  until  the  time  the  books  are 
delivered  to  the  collector  to  make 
and  return  their  levy,  there  would, 
to  render  the  act  effective,  be  a  duty 

Abb.  Corp. — 47. 


devolving  on  the  clerk  to  extend 
the  tax  on  the  collector's  books. 
The  General  Assembly  has  required 
the  assessor's  books  to  be  returned 
by  a  specified  day,  and  all  taxes  to 
be  levied  by  a  designated  period, 
that  the  clerk  may  after  that  time, 
and  before  the  day  he  is  required 
to  deliver  the  books,  have  time  to 
prepare  them  and  extend  all  the 
taxes.  If  then,  these  local  officers 
may  legally  at  any  time,  make  their 
levy,  and  the  clerk  is  bound  to  re- 
gard and  act  upon  it,  then  they  have 
it  in  their  power  to  hinder,  delay 
and  obstruct  the  collection  of  the 
entire  revenue,  by  their  negligence 
or  incompetency.  Such  a  power  to 
obstruct  the  collection  of  all  taxes, 
in  the  municipality  making  such  a 
levy,  cannot  exist,  nor  was  it  intend- 
ed that  it  should.  The  only  remedy, 
as  the  law  now  exists,  is,  for  the 
people  to  select  competent  officers, 
who  are  faithful  in  the  discharge  of 
their  duties,  and  when  they  are  not, 
hold  them  responsible  for  the  neg- 
lect of  such  a  plain  and  obvious 
duty  of  the  existence  of  which  we 
cannot  suppose  any  such  officers 
could  be  ignorant."  Michigan  Land 
&  Iron  Co.  v.  Republic  Tp.,  65  Mich. 
628,  32  N.  W.  882. 

us  Harding  v.  Bader,  75  Mich.  316, 
42  N.  W.  942;  Auditor  General  v. 
McArthur,  87  Mich.  457;  Pike  v. 
Hanson,  9  N.  H.  491.  Tax  officials 
should  be  duly  sworn  as  provided 
by  law  before  they  can  legally  ex- 
ercise their  official  duties. 


738 


PUBLIC  REVENUES. 


§   318 


right  by  a  subordinate  public  corporation  but  only  as  a  dele- 
gated power;  a  narrow  and  strict,  not  a  broad  construction, 
therefore,  is  always  given  to  acts  or  authority  delegating  the 
performance  of  a  power.  The  general  effect  of  the  principles 
thus  stated  is  to  render  all  acts  or  proceedings  void  unless  they 
are  executed  in  the  manner,  by  the  agency  and  at  the  time  pre- 
scribed by  law.120 


for  the  highway  expenses  of  the  en- 
suing year.  If  in  the  preceding 
year  the  appropriation  made  was 
insufficient  to  keep  in  repair  the 
highways  and  bridges,  the  proper 
procedure  for  the  highway  commis- 
sioner, and  the  only  way  in  which 
he  could  create  an  obligation  against 
the  town,  was  to  apply  under  the 
provisions  of  section  ten  of  the 
highway  law,  to  the  town  board, 
for  its  consent  to  make  the  improve- 
ments required;  and  section  eleven 
of  the  act  provides  a  method  by 
which  he  could  obtain  payment 
therefor.  It  is  not  claimed  that  the 
commissioner  obtained  the  consent 
of  the  town  board  to  make  the  im- 
provements in  the  preceding  year 
for  which  he  had  insufficient  funds 
to  pay.  We  are  unable  to  find  in 
the  highway  law  or  other  statutes 
of  the  state,  any  provision  author- 
izing a  highway  commissioner  to 
create  a  debt  against  a  town,  except 
in  the  manner  provided  in  the  tentn 
section  of  the  highway  law,  unless 
the  amount  expended  by  the  com- 
missioner the  previous  year  was  a 
legal  claim  against  the  town,  he  had 
no  authority  to  retain  the  money  of 
the  town  raised  to  keep  in  repair 
the  highways  and  bridges  therein 
for  the  ensuing  year,  nor  had  the 
town  board  authority  to  allow  his 
claim.  We  think  it  is  clear  that 
under  the  provisions  of  the  high- 
way law,  the  money  raised  in  Janu- 


R.  Co,  v.  People,  138 
111.  303,  28  N.  E.  134.  The  filing  of 
the  required  preliminary  lists  or 
certificates  will  be  presumed.  Wil- 
liams v.  Inhabitants  of  School  Dist. 
No.  1,  38  Mass.  (21  Pick.)  75.  A 
directory  provision  as  to  the  time 
of  taking  certain  official  action  con- 
strued not  as  a  limitation  upon  the 
authority  to  act. 

Michigan  Land  &  Iron  Co.  v.  Re- 
public Tp.,  65  Mich.  628,  32  N.  W. 
882;  In  re  Wood,  24  Misc.  561,  54  N. 
Y.  Supp.  30;  People  v.  Clark,  45 
App.  Div.  65,  60  N.  Y.  Supp.  1045; 
Squire  v.  Cartwright,  67  Hun  (N. 
Y.)  218.  "Section  nineteen  of  the 
highway  law  (c.  568,  Laws  1890) 
provides  that  commissioners  of  high- 
ways shall  also  make  at  the  second 
meeting  of  the  town  board  in  each 
year  'a  statement  of  the  improve- 
ments necessary  to  be  made  on  such 
highways  and  bridges,  and  an  esti- 
mate of  the  probable  expense  there- 
of, beyond  what  the  labor  to  be  as- 
sessed in  that  year  will  accomplish; 
a  duplicate  of  which  shall  be  de- 
livered by  the  commissioners  to  the 
supervisors  of  the  town,  who  shall 
present  such  duplicate  statement  to 
the  board  of  supervisors,  who  shall 
cause  the  amount  so  estimated,  not 
exceeding  five  hundred  dollars  in 
any  one  year,  to  be  assessed,  levied 
and  collected  in  such  town  in  the 
same  manner  as  other  town  char- 
ges.' This  is  intended  to  provide 


§  319 


TAXATION. 


739 


§  319.    Mode  of  levy  and  assessment. 

Upon  the  proper  performance  of  the  preliminary  steps  as  re- 
quired by  law  and  briefly  discussed  in  the  preceding  section,  the 
power  then  becomes  vested  in  public  officials  to  make  the  actual 
levy  and  assessment.  This,  as  well  as  the  preliminary  proceed- 
ings, must  be  done  in  the  manner  or  mode  prescribed  by  law, 
otherwise  the  power  does  not  exist.121  The  constitution  of  the 
state,1-2  the  charter  of  a  particular  municipal  corporation,123  the 
general  laws  of  the  state,124  or  ordinances  passed  by  subordinate 
public  corporations,125  direct  in  detail  the  steps  necessary  to  be 
done  and  the  manner  in  which  they  shall  be  taken. 


ary,  1899,  for  improvements  to  be 
made  on  the  highways  of  the  town, 
could  not  legally  be  expended  or 
used  to  pay  expenses  made  by  the 
commissioner  on  account  of  the 
highways  and  bridges  beyond  the 
appropriation  of  the  prior  year. 
Such  expenditure  was  unauthorized 
and  created  no  legal  claim  against 
the  town."  Citing  People  v.  Audi- 
tors of  Esopus,  74  N.  Y.  310;  Peo- 
ple v.  Warren  County  Sup'rs,  82 
Hun  (N.  Y.  )  298;  People  v.  Ulster 
County  Sup'rs,  93  N.  Y.  397. 

1-1  Milliard  v.  Bunker,  68  Ark.  340, 
58  S.  W.  362;  People's  Nat.  Bank  v. 
City  of  Ennis  (Tex.  Civ.  App.)  50 
S.  W.  632;  City  of  San  Antonio  v. 
Berry,  92  Tex.  319. 

122  Street       v.       Craven       County 
Com'rs,   70   N.   C.    644;    Brothers  v. 
Currituck  County  Com'rs,  70  N.  C. 
726. 

123  Snell  v.  City  of  Ft.  Dodge,  45 
Iowa,  564. 

12*  People  v.  Macoupin  County 
Court,  54  111.  217;  People  v.  Wallace, 
70  111.  680;  People  v.  Knopf,  171  111. 
191.  Construing  Rev.  St.  111.  1874, 
c.  139,  art.  4,  §  4  and  art.  13,  §  7, 
as  affected  by  constitution,  art.  9, 
§§  9  and  10;  Wood  v.  School  Corp. 
of  Tipton,  132  Ind.  206.  Constru- 


ing Rev.  St.  Ind.,  1881,  §§  4467-4468; 
State  v.  Aitkin,  62  Neb.  428,  87  N. 
W.  153. 

125  City  of  San  Luis  Obispo  v.  Pet- 
tit,  87  Cal.  499;  O'Neil  v.  Tyler,  3 
N.  D.  47,  53  N.  W.  434.  "We  will 
first  consider  the  validity  of  the  al- 
leged tax  of  1884,  for  which  the  city 
treasurer  sold  the  property  on  1885. 
At  that  time  the  amended  charter 
of  the  city  of  Fargo,  adopted  in 
March,  1881,  was  in  force.  Among 
other  provisions  of  the  charter  were 
the  following:  'Section  five.  The 
powers  hereby  granted  shall  be  ex- 
ercised by  the  mayor  and  council  of 
the  city  of  Fargo  as  hereinafter  set 
forth.'  *  *  *  'Sec.  thirteen.  All 
ordinances  of  the  city  shall  be  pass- 
ed pursuant  to  such  rules  and  regu- 
lations as  the  mayor  and  council 
may  prescribe:  provided  that  upon 
the  passage  of  all  ordinances  the 
yeas  and  nays  shall  be  entered  upon 
the  record  of  the  city  council,'  etc. 
Section  twelve  declares  that  the 
'mayor  and  council'  of  the  city  of 
Fargo  'shall  have  power  to  levy  and 
collect  taxes  for  general  purposes.' 
Section  four  of  an  ordinance  not 
pleaded,  but  offered  in  evidence, 
also  confines  the  power  in  express 
terms  upon  the  'mayor  and  council' 


740 


PUBLIC  REVENUES. 


§  3ZO 


§  320.    Loss  of  power. 

The  authority  to  levy  taxes  may  exist  as  an  original  or  direct 
power  and  again  as  one  delegated  by  some  superior  body  or  or- 
ganization. The  power  is  then  exercised  under  authority  of 
written  law  and  when  once  given  becomes  vested  to  the  extent 
that  it  cannot  be  lost  through  its  misuse  or  abuse,  or  the  neglect 
to  exercise  it  by  the  officials  to  whom  the  right  is  given.126  Gen- 


to  'levy  the  necessary  taxes'  on  the 
'first  Monday  of  September.'  The 
answer  expressly  avers  that  the  sev- 
eral acts  pleaded  by  the  defendant 
as  constituting  the  assessment, 
equalization  and  levy  of  the  taxes 
of  1884  and  embracing  also  the  sale 
of  plaintiff's  property  by  the  city 
treasurer  in  1885  for  such  taxes, 
and  the  execution  and  delivery  of 
the  tax  certificates  and  tax  deed, 
were  all  and  singular  done  and  per- 
formed under  and  by  virtue  of 
'chapter  six  of  the  ordinances  of  the 
city  of  Fargo.'  At  the  trial  plain- 
tiff claimed  that  no  such  ordinances 
existed,  because  the  same  was  never 
legally  enacted  or  adopted  by  the 
city  council,  for  the  reason  that 
upon  the  passage  of  the  ordinance 
by  the  council  the  'yeas  and  nays 
were  not  entered  upon  the  record 
of  the  city  council'  as  was  required 
to  be  done  by  section  thirteen  of  the 
city  charter.  We  think  the  evi- 
dence fully  sustained  plaintiff's  con- 
tention on  this  point  and  the  trial 
court  found  it  to  be  true,  as  a  mat- 
ter of  fact,  that  the  yeas  and  nays 
were  not  entered  in  the  record  of 
the  city  council  upon  the  passage 
of  the  ordinance  and  that  said  rec- 
ord contains  no  entry  of  or  con- 
cerning the  passage  of  said  ordi- 
nances, except  as  follows:  'April 
19th,  1881,  council  met  pursuant  to 
adjournment.  Revised  ordinances 
were  accepted  and  old  ones  repeal- 


ed.' Upon  this  record  we  are  com- 
pelled to  hold  *  *  *  that  the  al- 
leged ordinance  was  not  legally  pass- 
ed or  adopted  and  hence  never  be- 
came a  valid  enactment.  *  *  * 
The  proof  offered  wholly  fails  to 
show  a  valid  levy  of  the  city  tax  in 
question  and  we  therefore  rule  that 
the  alleged  city  tax  for  which  the 
lots  were  sold  was  void."  State  v. 
Hoff  (Tex.  Civ.  App.)  29  S.  W.  672; 
Peoples'  Nat.  Bank  v.  City  of  Ennis 
(Tex.  Civ.  App.)  50  S.  W.  632. 

126  Himmelmann  v.  Cofran,  36  Cal. 
411;  Lappin  v.  Nemaha  County,  6 
Kan.  403;  Kansas  City,  Ft.  S.  &  G. 
R.  Co.  v.  Tontz,  29  Kan.  460.  A  tax 
not  held  invalid  because  of  a  failure 
of  the  proper  recording  officers  to 
enter  the  same  upon  the  tax  rec- 
ords. City  of  Bangor  v.  'Lancey,  21 
Me.  472;  Libby  v.  Burnham,  15  Mass. 
144;  Howell  v.  City  of  Buffalo,  15 
N.  Y.  512;  Woodruff  v.  Fisher,  17 
Barb.  (N.  Y.)  224;  People  v.  Haines, 
49  N.  Y.  587. 

People  v.  Feitner,  65  App.  Div. 
224,  72  N.  Y.  Supp.  641,  following 
same  case  in  61  N.  Y.  Supp.  432. 
In  this  case  the  petitioner  claimed 
the  board  had  lost  the  right  to  en- 
force the  assessment  as  originally 
made  because  an  officer  of  the  board 
had  made  certain  representations  to 
it  as  to  the  time  he  would  have  to 
ask  for  a  review  of  the  assessment. 
The  court  said:  "It  is  stated  by  the 
petitioner  that  the  secretary  of  the 


§  321 


TAXATION. 


741 


erally,  however,  a  single  exercise  of  the  taxing  power  is  deemed 
to  exhaust  it  for  the  time  being,  especially  when  the  power  can 
only  be  legally  exercised  at  regular  recurrent  intervals.127  No 
extended  discussion  can  be  given  within  the  limits  of  this  work 
which  will  explain  in  detail  the  powers  of  the  various  agencies 
to  whom  may  be  given  the  delegated  power  of  levying  taxes.  It 
varies  with  the  laws  of  each  state  and  in  all  cases  with  the  dis- 
similar charter  provisions  of  many  and  different  municipal  organ- 
izations.128 

§  321.    Errors  in  proceedings. 

Tax  laws  as  ordinarily  passed  and  changed  by  legislative  bod- 
ies from  session  to  ^session  are  often  incongruous,  inconsistent 


board  informed  it  that  the  assess- 
ment had  not  been  fixed  on  the  6th 
day  of  April,  1900,  and  that  the  tax 
against  the  petitioner  and  other  cor- 
porations would  not  be  made  out 
until  May  1,  1900.  The  return  of 
the  commissioners  is  conclusive 
upon  this  subject.  If  the  board  in 
fact  made  the  assessment  and  de- 
posited the  books  for  inspection  of 
the  public,  as  the  return  says  they 
did,  any  statement  made  by  the  sec- 
retary, however  erroneous,  could  not 
have  the  effect  of  invalidating  such 
act.  As  to  the  time  when  it  is  said 
that  the  secretary  stated  that  the 
assessment  would  be  finally  made 
up,  it  was  correct  as  a  statement  of 
the  law,  as,  in  effect,  it  was  saying 
that  on  May  1,  1900,  the  books  would 
be  closed  and  such  is  the  require- 
ment of  the  law."  Oliver  v.  Cars- 
ner,  39  Tex.  396.  But  the  power  as 
vested  in  certain  officials  is  exhaus- 
ted by  their  action  levying  taxes  for 
the  year.  Subsequent  officials  can- 
not relevy  the  same  tax  for  that 
same  year. 

127  Vance  v.  City  of  Little  Rock, 
30  Ark.  435;  State  v.  Van  Every,  75 
Mo.  530;  Cummings  v.  Fitch,  40  Ohio 


St.  56;  Oregon  Steam  Nav.  Co.  v. 
City  of  Portland,  2  Or.  81;  Oliver  v. 
Carsner,  39  Tex.  396;  Dean  v.  Luf- 
kin,  54  Tex.  265. 

128  City  of  Tampa  v.  Mugge,  40 
Fla.  326,  24  So.  489;  Hopkins  v. 
People,  174  111.  416,  51  N.  E.  757, 
construing  Rev.  St.  111.,  c.  139,  art. 
4,  §  3;  Fisher  v.  People,  84  111.  491. 
"The  doctrine  is  certainly  *  *  * 
that  unless  the  power  to  tax  clearly 
appears  from  the  act  it  cannot  be  ex- 
ercised; but  we  are  not  to  pervert 
language  from  its  ordinary  and 
plain  signification  and  resort  to  a 
forced  and  unnatural  interpretation 
to  come  to  the  meaning  of  the  act. 
We  are  to  presume  that  words  in 
general  use  were  understood  and 
used  in  their  ordinary  sense,  where 
nothing  to  the  contrary  expressly 
appears,  and  if,  from  an  examina- 
tion of  all  the  language  applicable 
to  the  subject,  it  is  clear  it  was  in- 
tended the  power  of  taxation  should 
be  exercised,  it  is  sufficient."  Smith 
v.  City  of  Louisville,  12  Ky.  L.  R. 
337,  14  S.  W.  349,  construing  act  of 
Kentucky  May  12,  1884;  Sprague  v. 
Abbott,  58  Vt.  331. 


742 


PUBLIC  REVENUES. 


§   321 


and  complicated,  resulting  in  many  errors  unintentionally  made 
by  officers  to  whom  is  charged  the  duty  of  administering  them. 
The  question  then  becomes  important  of  the  effect  of  such  errors 
upon  tax  proceedings.  The  general  rule  applies  that  these  pro- 
visions or  statutory  requirements  are  mandatory  in  their  nature 
and  because  as  being  the  outward  manifestation  of  the  sovereign 
power  which  in  its  result  is  a  confiscation  of  property  should  be 
construed  technically  and  strictly.129  The  error  may  be  one  im- 
material in  its  character  and  not  affecting  the  justice  of  the  tax, 
or  the  proceedings  may  substantially  follow  the  direct  provisions 
of  the  law.  They  will  then  be  held  valid  and  the  taxes  levied  ca- 
pable of  collection  or  enforcement.130 


120  Chicago  &  A.  R.  Co.  v.  People, 
171  111.  544;  People  v.  Chicago  &  N. 
W.  R.  Co.,  183  111.  311;  Cooley, 
Taxation,  p.  266.  "The  question  re- 
garding the  revenue  laws  has  gen- 
erally been  whether  or  not  they 
should  be  construed  strictly.  To  ex- 
press it  in  somewhat  different  lan- 
guage, the  question  is  whether, 
when  a  question  of  doubt  arises  in 
the  application,  of  a  statute  to  its 
subject-matter  or  supposed  subject- 
matter,  the  doubt  is  not  to  be  solved 
in  favor  of  the  citizen,  rather  than 
in  favor  of  the  state  upon  whose 
legislation  the  doubt  arises,  and 
whether  such  solution  is  not  most 
in  accord  with  the  general  prin- 
ciples applied  in  other  cases.  Strict 
construction  is  the  general  rule  in 
the  case  of  statutes  which  may  di- 
vest one  of  his  freehold  by  proceed- 
ings not  in  the  ordinary  sense  ju- 
dicial, and  to  which  he  is  only  an 
enforced  party.  It  is  thought  to  be 
only  reasonable  to  intend  that  the 
legislature,  in  making  provision  for 
such  proceedings,  would  take  un- 
usual care  to  make  use  of  terms 
which  would  plainly  express  its 
meaning,  in  order  that  ministerial 
officers  might  not  be  left  in  doubt 


in  the  exercise  of  unusual  powers, 
and  that  the  citizen  might  know  ex- 
actly what  were  his  duties  and  lia- 
bilities. A  strict  construction  in 
such  cases  seems  reasonable,  because 
presumptively  the  legislature  has 
given  in  plain  terms  all  the  power 
it  has  intended  should  be  exercised. 
It  has  been  very  generally  supposed 
that  the  like  strict  construction  was 
reasonable  in  the  case  of  tax  laws." 
iso  Chicago  &  N.  W.  R.  Co.  v.  Peo- 
ple, 174  111.  80.  Errors  or  informal- 
ities not  affecting  the  tax  itself  may, 
under  the  proper  authority,  be  cor- 
rected by  the  person  through  whose 
neglect  the  same  were  occasioned. 
City  of  Somerset  v.  Somerset  Bank- 
ing Co.,  22  Ky.  L.  R.  1129,  60  S.  W. 
5.  Where  the  authority  exists,  a 
defective  tax  levy  may  be  canceled 
and  a  proper  levy  subsequently  made 
if  done  within  the  time  fixed  by  law. 
George  v.  Inhabitants  of  Second 
School  Dist.,  47  Mass.  (6  Mete.)  497; 
City  of  Baltimore  v.  Gorter,  93  Md. 
1,  48  Atl.  445.  An  ordinance  levy- 
ing a  tax  containing  surplusage  is 
not  thereby  rendered  void.  John- 
son v.  Finley,  54  Neb.  733,  74  N.  W. 
1080.  In  this  case  the  trial  court 
held  the  tax  valid.  It  was  urged 


321 


TAXATION. 


743 


The   doctrine  of  ratification  also  applies  in  connection  with 
this  subject,  that  if  an  act  which  has  been  delegated  for  its  per- 


on  appeal  that  the  decision  should 
be  reversed  because  the  ordinance 
under  which  the  tax  was  levied  was 
not  proved  in  the  method  given  by 
the  statute.  Overruling  this  as  an 
immaterial  point,  the  court  said: 
"The  argument  of  the  appellant  is 
that  the  enactment  or  existence  of 
this  ordinance  could  be  proved  and 
proved  only,  in  the  manner  pro- 
vided by  section  124  of  said  chapter 
12a,  which  is  as  follows:  'All  ordi- 
nances of  the  city  may  be  proven  by 
the  certificate  of  the  clerk  under 
the  seal  of  the  city  and  when  print- 
ed or  published  in  a  book  or  pamph- 
let form,  and  purporting  to  be  print- 
ed or  published  by  authority  of  the 
city  council,  shall  be  read  and  re- 
ceived in  all  courts  and  places  with- 
out further  proof.'  The  ordinance 
in  question  it  appears  had  not  been 
printed  or  published  in  book  or 
pamphlet  form;  at  least  it  was  not 
attempted  to  prove  the  ordinance  by 
the  introduction  of  such  book  or 
pamphlet.  Nor  was  it  attempted  to 
prove  the  ordinance  by  the  certifi- 
cate of  the  city  clerk  under  the  seal 
of  the  city.  But  we  do  not  under- 
stand that  the  existence  or  passage 
of  an  ordinance  of  a  city  of  the 
metropolitan  class  can  be  proved 
only  in  the  method  provided  by  said 
section  124.  Certainly,  the  original 
ordinance  and  proceedings  of  the 
city  council,  showing  its  passage 
and  approval  are  as  competent  evi- 
dence that  the  ordinance  was  pass- 
ed and  approved  as  a  certificate  of 
the  city  clerk  under  the  seal  of  the 
city,  that  the  ordinance  attached  to 
the  certificate  was  a  copy  of  the 
original  ordinance  on  file  in  his 


office.  We  think  that  when  a  party 
desires  to  prove  the  existence  of  an 
ordinance  of  a  city  of  the  metro- 
politan class,  he  may  pursue  the 
method  pointed  out  by  said  section 
124,  or  he  may  resort  to  common- 
law  methods  of  proof."  Citing, 
Clough  v.  State,  7  Neb.  320;  Orford 
v.  Benton,  36  N.  H.  395;  Henderson 
v.  Hughes  County,  13  S.  D.  576,  83 
N.  W.  682;  Rhomberg  v.  McLaren,  2 
Tex.  Civ.  App.  391,  21  S.  W.  571. 

isi  Williams  v.  Albany  Sup'rs,  122 
U.  S.  154;  Shepardson  v.  Gillette, 
133  Ind.  125,  31  N.  E.  788;  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Voodcock,  18 
Kan.  20;  Crittenden  v.  Robertson, 
13  Mich.  58;  State  v.  Richards,  42 
N.  J.  Law,  497;  Squire  v.  Cart- 
wright,  67  Hun,  218,  22  N.  Y.  Supp. 
899.  "The  effect  of  the  confirmatory 
resolutions  of  September  14, 1891,  re- 
mains to  be  considered.  One  of 
these  assumed  to  confirm  as  an  en- 
tirety, the  tax  and  warrant  of  Octo- 
ber 11,  1890.  Still  the  electors  could 
not  by  way  of  ratification  do  any 
more  than  they  could  have  done  at 
the  time,  and  they,  in  October,  1890, 
had  no  right  to  say  that  certain 
items  of  expenditure  might  be  rais- 
ed by  special  tax,  in  violation  of  the 
provisions  of  the  statute,  which  re- 
quired them  to  be  raised,  if  at  all, 
by  the  annual  tax,  and  after  certain 
formalities.  The  language  of  Judge 
Denio,  in  Peterson  v.  City  of  New 
York,  17  N.  Y.  449,  is  applicable. 
At  page  454  he  says:  'No  sort  of 
ratification  can  make  good  an  act 
without  the  scope  of  the  corporate 
authority,  so,  where  a  charter  or 
a  statute  binding  upon  the  corpora- 
tion has  committed  a  class  of  acts 


744  PUBLIC  REVENUES.  §  322 

formance  to  some  other  person  or  body  is  improperly  done,  that 
body  or  organization  possessing  the  original  power  can,  in  the 
proper  manner,  ratify  its  irregular  performance.  The  ratification 
relates  back  and  renders  the  act  of  equal  force  and  legal  effect 
as  though  done  at  the  proper  time  and  in  the  proper  manner.131 

§  322.    The  power;  when  exercised. 

In  delegating  to  subordinate  bodies  or  officials  the  right  to  ex- 
ercise the  power  of  taxation,  a  time  is  usually  fixed  within  which 
certain  acts  shall  be  done.  The  failure  to  perform  these  within 
or  at  the  prescribed  time  is  generally  held  to  result  in  a  loss  by 
that  subordinate  official  or  organization  of  the  right  to  do  the  par- 
ticular act  authorized,132  or,  to  state  the  doctrine  in  another  way, 
if  the  performance  of  any  act  relating  to  or  connected  with  the 
exercise  of  the  power  of  taxation  is  limited  to  a  prescribed  time, 
the  failure  to  act  within  or  at  that  time  by  the  delegated  body 
results  in  a  loss  of  the  right.  However,  when  such  provisions  of 
the  law  are  held  to  be  directory  merely,  not  mandatory  in  their 
character,  the  failure  to  follow  their  terms  will  not  render  invalid 
proceedings  based  upon  such  action.133 

to  particular  officers  or  agents  other  111.  241;  Wabash,  St.  L.  &  P.  R.  Co. 
than  the  general  governing  body,  or  v.  Binkert,  106  111.  298;  Keokuk  & 
where  it  has  prescribed  certain  for-  H.  Bridge  Co.  v.  People,  161  111.  132; 
malities  as  conditions  to  the  per-  Town  of  Williamsport  v.  Kent,  14 
formance  of  any  description  of  cor-  Ind.  306;  Huntsman  v.  City  of  La 
porate  business,  the  proper  func-  Porte,  15  Ind.  357;  Clark  v.  Town 
tionaries  must  act,  and  the  desig-  of  Noblesville,  44  Ind.  83;  Fahlor  v. 
nated  forms  must  be  observed,  and  Wells  County  Com'rs,  101  Ind.  167; 
generally  no  act  of  recognition  can  Standard  Coal  Co.  v.  Independent 
supply  a  defect  in  these  respects.'  "  Dist.  of  Angus,  73  Iowa,  304,  34  N. 
East  Tennessee,  V.  &  G.  R.  Co.  v.  W.  870;  Dollar  Sav.  Bank  v.  Ridge, 
City  of  Morristown  (Tenn.  Ch.  App.)  79  Mo.  App.  26;  Walker  v.  Edmonds, 
35  S.  W.  771.  The  rule  also  applies  197  Pa.  645,  47  Atl.  867.  If,  how- 
to  the  right  to  correct  a  defective  ever,  the  provision  requiring  action 
assessment  and  levy.  to  be  taken  within  or  at  a  certain 
132  Board  of  Education  of  San  time  is  directory  merely,  such  ac- 
Diego  v.  Common  Council  of  San  tion  may  be  then  taken  later. 
Diego,  128  Cal.  369;  Harper  v.  El-  isa  Tousey  v.  Bell,  23  Ind.  423. 
berton  Com'rs,  23  Ga.  566.  Where  "The  ground  upon  which  it  is 
no  time  limit  is  fixed,  the  power  sought  to  reverse  the  ruling  of  the 
may  be  exercised  upon  any  day.  court,  so  far  as  the  same  relates  to 
Gage  v.  Nichols,  135  111.  128,  25  N.  the  individual  taxes  of  Tousey,  is 
E.  672,  following  Mix  v.  People,  72  that  the  assessment  was  not  rcadf 


§  323  TAXATION.  745 

§  323.    The  duty  obligatory 

The  use  of  the  power  as  well  as  its  mode  of  exercise  is  usually 
considered  obligatory  when  delegated  to  subordinate  officials  or 


until  the  4th  day  of  June.  The 
21st  section  of  'the  act  for  the  in- 
corporation of  cities,'  etc.,  provides 
that  'the  assessor  shall,  before  the 
first  Monday  in  May  in  each  year, 
unless  otherwise  directed  by  the 
common  council,  make  out,  etc. 
Said  assessment  shall  be  completed 
at  the  time  above  indicated  and  re- 
turn made  thereof  to  the  clerk  of 
the  city,  unless  by  an  order  of  the 
common  council,  further  time  be 
given  him.'  The  council  on  the  7th 
of  May  passed  an  order  extending 
the  time  for  completing  the  assess- 
ment. It  is  insisted,  however,  that 
such  action  could  only  be  taken  by 
the  council  before  the  first  Monday 
in  May  and  that  any  order  made 
after  the  time  fixed  by  law  for  the 
return  was  void.  In  considering 
this  question  we  will  be  aided  in  de- 
termining what  power  the  legisla- 
ture has  conferred  upon  the  com- 
mon council  in  the  section  by  look- 
ing at  the  intent  and  purpose  of 
the  enactment.  The  first  object 
plainly  was  to  fix 'the  date  before 
which  the  assessment  should,  as  a 
rule,  be  completed.  The  second  ob- 
ject was  to  place  a  discretionary 
power  somewhere  to  extend  that 
limit  when  circumstances  might  re- 
quire it.  Keeping  these  objects  in 
view,  of  what  moment  is  it  whether 
this  discretionary  power  is  exer- 
cised before  or  after  the  first  Mon- 
day in  May?  The  legal  presump- 
tion would  be  that  the  assessor 
would  comply  with  the  direction 
contained  in  the  section,  and  com- 
plete his  list  by  the  day  named;  and 


until  the  limit  has  been  passed, 
the  council  may  not  be  able  to  de- 
termine as  to  the  necessity  of  such 
further  grant  of  time.  This  power 
is  to  be  exercised  or  not,  at  the  dis- 
cretion of  the  common  council,  and 
the  court  should  grant  the  latest 
moment  of  time  within  the  liberal 
spirit  and  intent  of  the  act,  to  en- 
able full  information  to  be  had,  and 
indeed  absolute  certainty  attained 
of  the  necessity  requiring  its  exer- 
cise. This  power  is  clearly  granted 
to  the  council  for  remedial  pur- 
poses. It  places  within  their  hands 
the  power  to  grant  relief  when 
from  any  cause  the  officer  cannot 
comply  with  the  direction  given  in 
the  statute.  Such  a  grant  should  be 
construed  largely  and  beneficially, 
so  as  to  advance  the  remedy.  But 
the  provision  of  the  statute  itself 
fixing  the  time  would  be  but  di- 
rectory, were  it  not  that  it  requires 
action  on  the  part  of  the  council  to 
extend  the  time;  and  certainly 
when  they  have  attempted  to  exer- 
cise that  power  a  more  strict  rule 
should  not  be  applied  than  would 
have  prevailed  in  the  absence  of 
any  grant  of  power  to  enlarge  the 
time."  Citing  Gale  v.  Mead,  2  De- 
nio  (N.  Y.)  160. 

Perrin  v.  Benson,  49  Iowa,  325; 
Fay  v.  Wood,  65  Mich.  390,  32  N.  W. 
614;  Nixon  v.  City  of  Biloxi,  76 
Miss.  810,  25  So.  664.  Action  may 
be  taken  at  an  adjourned  meeting 
concerning  tax  matters  which  were 
properly  before  the  regular  meeting 
though  no  express  provision  is  made 
in  the  statute  for  a  recess  or  ad- 


PUBLIC  REVENUES.  §   324 

organizations;  it  is  to  be  exercised  not  at  the  will  or  discretion 
of  such  delegated  agent  but  in  the  manner  and  at  the  time  set 
by  law.134  The  performance  of  the  duty  can  be  required  and  com- 
pelled. Officers  cannot  through  a  failure  to  perform  acts  com- 
manded by  law,  either  deprive  the  organization  which  they  repre- 
sent of  the  right  to  exercise  the  power  of  taxation  or  affect  in- 
dividuals whose  contract  or  other  obligations  would  be  defeated, 
impaired  or  destroyed  by  a  failure  to  levy  taxes.135 

§  324.    Equalization  of  tax  levies. 

In  each  of  the  states  will  be  found  constitutional  provisions  re- 
lating to  and  limiting  the  exercise  of  the  power  of  taxation.  The 
clause  as  found  in  the  constitution  of  the  state  of  Minnesota  is 
illustrative  in  its  character.130  The  burden  of  these  constitutional 
provisions  is  equality  and  uniformity.  Taxation  to  be  valid  must 
be  exercised  upon  this  principle.  To  secure  this  result,  we  have 
boards  of  equalization  or  review  for  the  correction  and  equaliza- 
tion of  assessments  and  of  taxes  levied  and  assessed  either  as 
against  specific  individuals  or  property.  The  powers  of  such 
board  within  their  authority  are  generally  plenary  and  in  the  ab- 
sence of  fraud  not  subject  to  review  by  the  courts  except  as  pro- 

journment.     Hayes  v.  Hanson,  12  N.  Sup'rs,   49   Hun,  32,   1   N.   Y.  Supp. 

H.   284;    Scammon  v.   Scammon,   28  460. 

N.  H.  429.  ise  Minnesota   Const,   art.    9,    §    1. 

is*  State  v.    Sullivan,   51   111.   486.  The  constitutional  provision  of  Min- 

"This  was  an  application  for  judg-  nesota  is  in  part  as  follows:     "All 

ment  for   taxes.     *     *     *     Having  taxes  to  be  raised  in  this  state  shall 

been  properly  levied,  so  far  as  ap-  be  as  nearly  equal  as  may  be,  and 

pears,    In    both    towns,    it    was    tne  all  property  on  which  taxes  are  to 

duty   of   each   to   proceed    with   the  be  levied   shall   have  a  cash   valua- 

collection.     If  Saunamin   has  failed  tion  and  be  equalized  and  uniform 

to   perform   its   duty,   parties   inter-  throughout  the  state;  provided,  that 

ested    can    have    their   remedy,    but  the  legislature  may,  by  general  law 

its  failure  is  no  reason  why  the  au-  or  special  act,   authorize  municipal 

thorities    of    the    town    of    Sullivan  corporations  to  levy  assessments  for 

should   not  be   permitted   to   collect  local   improvements  upon  the   prop- 

the   tax  in   that  town."     People   v.  erty    fronting    upon    such    improve- 

Lockport  Sup'rs,   49   Hun,   32,  1  N.  ments,  or  upon  the  property  to  be 

Y.  Supp.  460.  benefited  by  such  improvements,  or 

iss  Hart  Tp.  v.  Oceana  County,  44  both,  without  regard  to  a  cash  val- 

Mich.     417;     People     v.     'Lockport  uation,   and   in   such    a   manner   as 

the   legislature   may   prescribe." 


§  325 


TAXATION. 


747 


vided  by  law.137  Taxes  are  void  which  are  levied  without,  either 
as  to  the  assessment  or  the  tax  proceedings  proper,  being  brought 
before  the  proper  body  for  the  purpose  of  equalization  and  cor- 
rection. 

§  325.    Taxpayers'  rights. 

To  protect,  however,  the  individual  from  the  exercise  of  the 
power  in  an  arbitrary  or  fraudulent  manner,  the  right  is  given 
to  appeal  to  the  courts  for  the  correction  of  abuses  and  a  satis- 
faction of  the  injuries  he  may  have  suffered.138  The  right  to 


137  City  of  Tampa  v.  Mugge,  40 
Fla.  326,  24  So.  489;  Stewart  v. 
Collier,  91  Ga.  117,  17  S.  E.  279; 
People  v.  Chicago,  B.  &  Q.  R.  Co., 
164  111.  506;  Kinsey  v.  Sweeney,  63 
Iowa,  254;  Fonda  v.  City  of  Louis- 
ville, 20  Ky.  L.  R.  1652,  49  S.  W. 
785;  Wakeley  v.  City  of  Omaha,  58 
Neb.  245,  78  N.  W.  511.  If  notice 
of  a  meeting  of  such  a  board  is  re- 
quired by  law  to  be  published,  this 
is  an  indispensable  prerequisite  to 
legal  action. 

Streight  v.  Durham,  10  Okl.  361, 
61  Pac.  1096.  Taxpayers  are  char- 
ged with  knowledge  of  statutory 
provisions  fixing  a  time  of  meeting 
for  such  boards  of  equalization  and 
correction.  Scollard  v.  City  of  Dal- 
las, 16  Tex.  Civ.  App.  620,  42  S.  W. 
640;  Board  of  Education  of  City 
of  Ogden  v.  Brown,  12  Utah,  251, 
42  Pac.  1109;  Pierce  County  v.  Spike, 
19  Wash.  652. 

iss  Drake  v.  Phillips,  40  111.  388. 
Where  an  injunction  has  been  grant- 
ed restraining  a  tax  collector  from 
collecting  an  illegal  tax,  the  town 
which  he  represents  is  liable  for 
the  costs  in  the  case;  there  is  no 
personal  liability  on  the  part  of 
the  collector. 

Newton  v.  Roper,  150  Ind.  630; 
Meyer  v.  Dubuque  County,  43  Iowa, 


592.  The  remedy  for  an  erroneous 
assessment  is  by  application  to  the 
board  of  equalization,  not  by  man- 
damus, to  compel  county  officials 
to  correct  errors  alleged. 

Johnson  v.  City  of  New  Orleans, 
105  La.  149,  29  So.  355.  Such  a 
proceeding,  however,  must  be 
brought  in  good  faith  to  entitle  a 
taxpayer  to  relief. 

New  Orleans,  M.  &  C.  R.  Co.  v. 
Dunn,  51  Ala.  128.  A  threatened 
usurpation  of  power  by  corporate 
authorities  or  the  violation  of  the 
duty  imposed  by  law  whereby  the 
burden  of  taxation  will  be  increased 
may  be  prevented  by  a  court  of 
equity  upon  application  of  a  tax- 
payer within  the  district. 

Shaw  v.  Inhabitants  of  Becket,  61 
Mass.  (7  Cush.)  442;  Parsons  v. 
City  of  Northampton,  154  Mass.  410, 
28  N.  E.  350;  Welch  v.  City  of  Bos- 
ton, 126  Mass.  442,  following  Ban- 
croft v.  City  of  Cambridge,  126 
Mass.  438;  Barnstable  Sav.  Bank  v. 
City  of  Boston,  127  Mass.  254;  Chau- 
venet  v.  Arundel  County  Com'rs,  3 
Md.  259;  Steffes  v.  Moran,  68  Mich. 
291,  36  N.  W.  76.  The  interest  of 
a  taxpayer  in  a  tax  improperly  lev- 
ied may  be  so  small  as  to  defeat 
his  right  to  maintain  a  bill  re- 
straining the  payment  of  the  ex- 


748  PUBLIC  REVENUES.  §   325 

review  the  levy  and  assessment  of  taxes  for  the  purpose  of  cor- 
recting such  errors  or  irregularities  may  be  vested  in  a  court 
legally  authorized  in  this  respect  but  performing  in  addition 
to  such  duties  others  of  an  administrative  or  executive  char- 
acter. This  body  is  generally  considered  quasi  judicial  in  its 
character  and  in  the  performance  of  its  duties  requiring  the  ex- 
ercise of  judgment  and  discretion.139  The  usual  rules  which  ap- 

penditufe  to  pay  which  the  tax  was  tion  is  void  because  it  deprives  him 

levied.  of  his  property  without  due  process 

State    v.   Weyerhauser,    68    Minn,  of    law    in    violation    of    the    14th 

353;    State  v.  Hannibal  &  St.  J.  R.  amendment    of   the   constitution   of 

Co.,  135  Mo.  618.    The  fixing  of  too  the  United  States, 
low  a  rate  is  not  a  valid  objection        Town   of  Grand   Isle  v.  Town   of 

to  the  validity  of  a  local  school  tax.  Milton,   68   Vt.   234,   35  Atl.   71.     A 

Normand  v.  Otoe  County  Com'rs,  judgment     entered     by     stipulation 

8  Neb.  18;  Kip  v.  City  of  Paterson,  does    not   necessarily    preclude    one 

26  N.  J.  Law   (2  Dutch.)  298;  In  re  of    the    parties    from    subsequently 

Wood,  24  Misc.  561,  54  N.  Y.  Supp.  raising   the    question    of    the    legal- 

30;    Middleton  v.  Robbins,  54  N.  J.  ity  of  the  tax  levied  as  the  result 

Law,  566;  Benson  v.  Inhabitants  of  of  a  judgment. 

Bloomfield  Tp.,  58  N.  J.  Law,  491;        "9  St.  Louis  Bridge  &  T.  R.  Co. 

Haley  v.  Whitney,  53  Hun   (N.  Y.)  T.    People,    127    111.    627;    People    v. 

119;   People  v.  Hatch,  60  Barb.   (N.  Cook   County  Com'rs,   176   111.    576; 

Y.)    228.      An    appeal   will    not    lie  Collins  v.  Davis,  57  Iowa,  256;  Hud- 

to   the    county  judge   from    the   re-  son  v.  Police  Jury  of  Claiborne  Par- 

fusal  of  a  school  district  meeting  to  ish,  107  La.  387,  31   So.   868;   State 

vote  a  tax  requested  for  the  reim-  v.  Byers,  67  Mo.  706;   State  v.  Kan- 

bursement  of  a  trustee.  sas  City,  St.  J.  &  C.  B.  R.  Co.,  149 

City    of    Columbia   v.    Beasly,    20  Mo.  635.     The  power  vested  in  the 

Tenn.    (1   Humph.)    232;    Smith    v.  county   court   by   Rev.   St.    1889,    §§ 

City  of  Nashville,   88   Tenn.   464,   7  7732,    7731,    to    ascertain    the    levy, 

L.  R.  A.  469;   Berry  v.  City  of  San  amount  and  rate  of  taxation  for  dif- 

Antonio   (Tex.  Civ.  *App.)    46  S.  W.  ferent  purposes  is  exclusive  and  can- 

273.     The  presumption  exists  in  all  not  be  exercised  by  any  other  other 

cases  where  the  validity  of  tax  lev-  tribunal;    the   circuit   court   in   the 

ies  is  raised  that  all  prior  proceed-  proper    proceeding    may    determine 

ings  have  been  regular  and  that  au-  such  a  tax  illegal  but  it  cannot  re- 

thority  exists  for  the  levy.  vise    the    rate.      State    v.    Ormsby 

Board   of  Education   of  Ogden  v.  County  Com'rs,  6  Nev.  95.     Such  a 

Brown,  12  Utah,  251;    Heth  v.  City  body   in   granting   relief   cannot   go 

of    Radford,    96    Va.    272.      A    city  beyond  the  application  made.     Peo- 

charter  containing  no   provision  by  pie  v.  Schoonover,  47  App.  Div.  278, 

which   the   owner  of   property  may  62    N.    Y.    Supp.    180;    Huntingdon 

have  its  assessed  valuation  reviewed  County  v.  Kauffman,  126  Pa.  305. 
,and  corrected  for  purposes  of  taxa- 


§  325 


TAXATION. 


749 


ply  to  the  performance  of  duties  of  such  a  character  would  ap- 
ply here.  The  power  to  review  and  correct  may  not  be  vested 
in  any  particular  court  but  one  possessed  by  the  ordinary  judicial 
organizations  of  the  state  to  be  exercised  when  brought  within 
their  jurisdiction  upon  the  proper  pleadings  and  in  the  manner 
provided  by  law.140  In  proceedings  brought  by  the  taxpayer  to 
restrain  the  collection  of  a  tax  which  he  deems  illegal  or  unjust, 
it  is  necessary  to  bring  in  as  parties  defendant  either  the  official 
representatives141  or  the  corporation  itself,142  as  required  by  law. 
Where  officers  are  to  be  made  parties  defendant,  a  defect  of  par- 
ties through  the  failure  to  name  all  the  necessary  officials  does 


1*0  pence  v.  City  of  Frankfort,  19 
Ky.  L.  R.  721,  41  S.  W.  1011;  Greene 
v.  Mumford,  5  R.  I.  472.  An  in- 
junction will  not  be  issued  by  a 
court  of  equity  to  restrain  the  col- 
lection of  general  taxes  based  upon 
an  improper  assessment  of  property 
when  a  remedy  at  law  is  sufficiently 
adequate.  Wells  v.  Lincoln  Board 
of  Education,  20  W.  Va.  157.  The 
petition  should  be  filed  within  forty 
days  as  required  by  law  from  the 
time  of  making  an  illegal  levy. 

State  v.  Cornwall,  91  Wis.  565,  73 
N.  W.  63.  "It  is  the  contention  of 
the  appellant  that  all  the  towns, 
villages  and  cities  affected  by  the 
determination  of  the  commissioners 
are  necessary  parties  plaintiff  and 
should  all  be  joined  with  the  rela- 
tor,  or  at  least  that  the  relator 
should  expressly  state  that  it  is 
made  in  their  behalf.  A  moment's 
reflection  will  convince  that  this 
cannot  be  the  true  solution  of  this 
question;  for  no  town,  village  or 
city  is  in  the  least  affected  by  the 
determination  of  the  commissioners. 
It  does  not  in  the  least  affect  the 
'revenues  of  the  town,  nor  impose  a 
debt  upon  it,  as  a  political  organi- 
zation. But  it  does  immediately 
and  directly  affect  each  taxpayer  in 
the  amount  of  his  tax.  The  gen- 
eral tax  is  not  a  debt  against  the 


town  but  is  a  direct  charge  upon 
the  taxpayer.  And  the  determina- 
tion of  the  commissioners  but  de- 
termines the  relative  proportion  of 
the  general  tax  which  shall  be  char- 
ged upon  the  taxpayers  of  each 
town.  So,  the  town  not  being  the 
real  party  in  interest,  the  relation 
should  not  be  in  its  name  nor  in 
its  behalf.  Any  citizen  was  compe- 
tent to  bring  the  action;  for  it  is 
the  settled  rule  of  this  state,  and 
is  in  accord  with  the  great  weight 
of  American  authority,  that  where 
the  relief  sought  is  a  matter  of  pub- 
lic right,  the  people  at  large  is 
the  real  party  and  any  citizen  is 
entitled  to  a  writ  of  mandamus  to 
enforce  the  performance  of  such 
public  duty.  It  is  sufficient  if  he  is 
a  citizen  and  as  such,  interested  in 
the  execution  of  the  law." 

i*1  City  of  Richmond  v.  Crenshaw, 
76  Va.  936;  Newcomb  v.  Horton,  18 
Wis.  566.  This  case  also  holds  that 
one  taxpayer  cannot  sue  in  behalf 
of  himself  and  all  other  taxpayers 
entitled  to  the  same  relief;  each 
must  bring  his  several  action. 

i*2jarvis  v.  Robertson,  126  Ind. 
281.  An  action  naming  as  defend- 
ant a  person  representing  in  his  of- 
ficial capacity  several  distinct  and 
separate  public  corporations  should 
correctly  state  the  corporation 


750 


PUBLIC  REVENUES. 


§  325 


not  ordinarily  warrant  the  dismissal  of  the  proceedings  or  a  dis- 
solution of  a  temporary  injunction  which  may  have  been  grant- 
ed.143 In  such  a  proceeding  where  the  taxpayer  is  the  moving 
party,  all  questions  that  may  determine  or  affect  the  legality  of 
the  tax  can  be  considered,  such  as  a  proposed  use  of  the  tax 
levy;144  the  question  of  whether  the  tax  levy  is  in  excess  of  the 


against  which  the  action  is  brought. 
See  note  on  Taxpayers'  Actions,  22 
Abbott's  New  Cases,  86. 

"3  pickett  v.  Russell,  42  Fla.  116, 
28  So.  764;  Wall  v.  Eastman,  1 
Mich.  268.  There  is  no  personal 
liability  on  the  part  of  the  public 
official  made  defendant  in  such  case. 
"By  reason  of  the  refusal  of  the  de- 
fendant below  to  issue  his  warrant 
for  the  collecting  of  the  rate  bill, 
the  district  lost  the  amount  which 
would  have  been  collected  from  the 
individuals  sending  pupils  to  the 
district  school,  for  the  payment  of 
the  teacher;  and  was  obliged  to 
collect  by  a  tax  on  the  property 
within  the  district  the  amount  re- 
quired; in  consequence  of  which  the 
plaintiff  below,  being  an  inhabitant 
of  the  district,  owning  taxable  prop- 
erty therein,  was  compelled  to  pay 
a  tax  of  eight  dollars,  for  the  re- 
covery of  which  this  suit  is  brought. 
If  any  right  of  action  accrued,  it  was 
in  favor  of  the  corporation  of 
which  the  plaintiff  below  was  a 
member,  and  not  to  him  individ- 
ually. If  the  plaintiff  below  could 
sustain  this  action,  every  person 
who  paid  any  portion  of  the  judg- 
ment in  favor  of  the  teacher  against 
the  district  might  also  sustain  a 
separate  action  for  the  amount  paid 
by  him;  and  upon  the  same  prin- 
ciple, in  case  of  the  default  of  a 
county  treasurer,  every  individual 
in  the  county  who  should  be  com- 
pelled to  pay  a  tax  to  make  good 
the  fund  lost  might  also  maintain 


a  separate  action  against  the  treas- 
urer for  the  amount  paid  by  him. 
No  such  principle  it  is  believed, 
has  ever  been  sanctioned  or  recog- 
nized by  any  judicial  tribunal  whose 
decisions  have  been  reported  in  the 
books." 

it*  Seligman  v.  City  of  Santa 
Rosa,  81  Fed.  524.  A  taxpayer  has, 
however,  no  right  of  intervention 
to  prevent  the  expenditure  of  money 
already  collected  for  the  reason  that 
the  tax  was  invalid. 

Mutual  Life  Ins.  Co.  v.  Powell,  89 
Fed.  437;  Russell  v.  Tate,  52  Ark. 
541,  7  L.  R.  A.  180;  Smith  v.  Omaha 
&  C.  B.  R.  &  Bridge  Co.,  97  Iowa, 
545,  66  N.  W.  1041.  Where  public 
aid  has  been  granted  a  bridge  com- 
pany, taxpayers  may  sue  to  recov- 
er payments  made  to  it  where  there 
has  been  a  failure  to  comply  with 
the  required  conditions.  Gray  v. 
Bourgeois,  107  La.  671,  32  So.  42. 
Moneys  raised  by  taxation  for  one 
purpose  cannot  be  used  for  another 
and  such  attempted  use  can  be  re- 
strained by  a  taxpayer. 

Prince  v.  Crocker,  166  Mass.  347, 
32  L.  R.  A.  610;  Morton  v.  Carlin, 
51  Neb.  202,  70  N.  W.  966;  Blood  v. 
Manchester  Elec.  Light  Co.,  68  N. 
H.  340,  39  Atl.  335;  Clarke  v.  Shel- 
don, 57  Hun,  586,  10  N.  Y.  Supp.  357. 
A  taxpayer  can  maintain  an  action 
in  a  town's  behalf  to  compel  the  use 
of  tax  moneys  for  the  purpose  au- 
thorized. 

Calhoun  v.  Millard,  121  N.  Y.  69, 
24  N.  E.  27,  8  L.  R.  A.  248.  A  tax 


325 


TAXATION. 


751 


limit  prescribed  by  law;1*5  the  right  of  the  corporation  in  ques- 
tion to  levy  and  collect  the  tax  ;146  or  the  legality  of  the  meeting 
at  which  the  taxes  were  voted.147  The  court  may  apply  the  doc- 
trine of  estoppel,  however,  to  the  one  raising  or  attempting  to 
raise  the  last  ~s  well  as  ether  questions.1*8  If  the  use  to  which 
the  monej-s  proposed  to  be  raised  is  legal  and  within  the  limit 
prescribed  by  law  it  cannot  ordinarily  be  questioned  by  the  tax- 
payer149 unless  there  is  an  attempted  diversion  of  the  funds  raised 
for  a  specific  purpose  from  their  proper  use.150 


levy  for  the  payment  of  railroad  aid 
bonds  lawfully  issued  will  not  be 
enjoined  because  neither  "an  ille- 
gal act"  nor  a  "waste"  within  the 
meaning  of  the  New  York  laws  1881, 
c.  531,  §  1. 

City  of  Ft.  Worth  v.  Boulware,  26 
Tex.  Civ.  App.  76,  62  S.  W.  928.  The 
burden  of  proof  is  upon  the  taxing 
district  to  establish  its  lien  by  show- 
ing that  the  property  was  actually 
in  existence  and  subject  to  it. 

1*5  Davis  v.  Petrinovich,  112  Ala, 
654,  36  L.  R.  A.  615;  Spilman  v. 
City  of  Parkersburg,  35  W.  Va.  605. 

1*6  Town  of  Douglasville  v.  Johns, 
62  Ga.  423;  City  of  Grand  Rapids 
v.  Blakely,  40  Mich.  367;  East  Riv- 
er Bank  v.  Butterworth,  51  N.  Y. 
637. 

1*7  Kentucky  Union  R.  Co.  v.  Bour- 
bon County,  8  Ky.  L.  R.  881,  2  S. 
W.  687;  Guillory  v.  Avoyelles  R.  Co., 
104  La.  11,  28  So.  899;  Sentell  v. 
Police  Jury  of  Parish  of  Avoyelles, 
48  La.  Ann.  96. 

i**  City  of  Evansville  v.  Pfister- 
er,  34  Ind.  36;  Sleeper  v.  Bullen,  6 
Kan.  300;  Vicksburg  S.  &  P.  R.  Co. 
v.  Scott,  52  La.  Ann.  512;  Motz  v. 
City  of  Detroit,  18  Mich.  495;  Kel- 
logg v.  Ely,  15  Ohio  St.  64;  State  v. 
Bader,  56  Ohio  St.  718,  47  N.  E. 
564.  A  voluntary  payment  of  taxes 
assessed  against  a  taxpayer  may  es- 
top him  from  bringing  an  action  to 


enjoin  the  levy  and  collection  of 
the  tax. 

i*»  Casey  v.  Independent  School 
Dist,  64  Iowa,  659.  Where  the  use 
is  lawful  and  the  tax  has  been  le- 
gally levied,  irregularities  cannot 
be  made  the  basis  of  an  action  to 
enjoin  the  payment  of  a  tax  in 
connection  with  the  making  of  the 
contract  to  pay  the  obligation  of 
which  the  tax  is  levied. 

Anderson  v.  City  of  Mayfield,  14 
Ky.  L.  R.  370,  19  S.  W.  598.  The 
collection  of  taxes  will  not  be  en- 
joined for  the  reason  that  moneys 
raised  are  being  improperly  expend- 
ed by  the  authorities.  The  court 
say:  "The  charter  of  the  City  of 
Mayfield  provides  that  the  assessor 
shall  make  his  assessment  and  re- 
turn his  lists  to  the  proper  office  by 
a  certain  time.  This  was  not  done. 
The  assessment  was  made  after  the 
prescribed  period.  This  provision 
is  not,  however,  for  the  benefit  of 
the  taxpayer.  It  is  not  important 
to  him.  Its  object  is  to  secure  for 
the  city  order  and  dispatch  in  the 
collection  of  its  taxes  and  the  trans- 
action of  its  business.  Such  provi- 
sions are  not  regarded  as  manda- 
tory, in  the  absence  of  words  im- 
porting that  the  required  act  shall 
not  be  done  at  any  other  time  than 
that  designated.  No  such  negative 
words  are  contained  in  the  charter. 


752                                           PUBLIC  REVENUES.  §   326 

§  326.    Lien  and  priority. 

Both  taxes  and  special  assessments  have  a  lien  paramount,  prior 
and  superior  on  the  property  subject  to  them151  which  cannot  be 

lost  by  the  laches  or  neglect  of  public  officials  charged  with  en- 
forcing tax  laws.152  This  lien  need  not  be  expressly  given  that 
it  may  exist,153  and  attaches  usually  from  the  time  that  the  taxes 

A  person  should  not  be  allowed  to  *  *  *  If  the  rule  were  otherwise, 
rely  upon  the  mere  nonfeasance  of  the  machinery  of  government  would 
an  officer  when  it  is  not  important  be  liable  to  interruption.  The  na- 
to  that  person,  and  thus  escape  the  ture  of  a  municipal  tax — the  pur- 
performance  of  his  own  duty.  Even  pose  of  it — forbids  the  assertion  of 
the  omission  of  property  in  making  a  demand  as  a  set-off  unless  ex- 
an  assessment,  either  through  neg-  pressly  authorized  by  statute.  This 
ligence  or  default  of  the  assessing  rule  is  necessary  to  the  continuance 
officer,  or  where  it  occurs  through  of  the  government."  Central  R.  Co. 
mistake  of  law,  does  not  vitiate  the  v.  Mutchler,  41  N.  J.  Law,  96. 
tax.  If  so,  as  all  men  are  fallible,  iso  state  v.  Jersey  City,  54  N.  J. 
no  tax  could  ever  be  collected  and  Law,  49,  22  Atl.  1052. 
the  government  would  fail.  The  re-  151  Parker  v.  City  of  Jacksonville, 
quirement  being  merely  directory,  37  Fla.  342,  20  So.  538.  A  lien, 
the  making  of  an  assessment  at  a  however,  exists  only  against  the 
later  period  did  not  render  it  and  specific  property  upon  which  the  de- 
the  proceedings  based  upon  it  void,  linquent  taxes  are  levied.  Bothwell 
Even  if  the  taxes  were  being  im-  v.  Millikan,  104  Ind.  162;  City  of 
properly  expended,  yet  the  taxpayer  Middlesboro  v.  Coal  &  Iron  Bank,  22 
cannot,  therefore,  refuse  to  pay  his  Ky.  L.  R.  380,  57  S.  W.  497;  Hohen- 
tax.  He  cannot  have  relief  in  this  statt  v.  City  of  Bridgeton,  62  N.  J. 
way.  He  must  do  his  duty  and  look  Law,  169,  40  Atl.  649;  Burnet  v. 
to  the  law  to  compel  a  proper  ex-  Dean,  60  N.  J.  Eq.  9,  46  Atl.  532. 
penditure.  The  tax  in  question  was  An  act,  however,  which  provides 
authorized  by  the  city  charter;  and,  that  "in  villages  and  other  munici- 
in  such  a  case,  whether  its  impo-  pal  corporations"  taxes  shall  be  a 
sition  be  necessary  is  a  matter  for  lien  on  real  estate  until  paid  is  in 
the  determination  of  the  taxing  contravention  of  constitutional  pro- 
power.  It  was  attempted  in  one  of  vision  art.  4,  §  7,  paragraph  11, 
these  cases  to  prevent  the  collection  which  prohibits  the  legislature  from 
of  the  tax,  provided  it  was  legal,  passing  private  or  local  or  special 
by  the  assertion  of  an  alleged  in-  laws  regulating  the  internal  affairs 
debtedness  of  the  city  to  the  tax-  of  towns  and  counties, 
payer.  This  cannot  be  done  unless  152  justice  v.  City  of  Logansport, 
expressly  authorized  by  statute.  A  101  Ind.  326;  Eschbach  v.  Pitts,  6 
tax  grows  out  of  a  duty  and  not  Md.  71. 

out  of  contract.     It  is  not  collect!-  iss  Kansas  City  v.   Payne,  71   Mo. 

ble  by  suit  unless  expressly  author-  159;    City   of   Jefferson   v.   Whipple, 

ized.     It  is  not  a   demand   founded  71  Mo.  519.    The  lien,  however,  must 

upon    a    contract    or    a    judgment,  be  given  through  some  provision  of 


§  327 


TAXATION. 


are  entered  in  the  records  kept  for  such  purpose  after  their  as- 
sessment and  levy.154  The  lien  of  special  assessments,  however, 
may  vary  with  different  provisions  as  found  in  the  charters  of 
various  municipal  corporations  which  must  be  consulted  to  de- 
termine questions  raised  in  individual  cases.155  The  statute  of 
limitations  may,  by  law,  run  against  such  lien  and  after  the  time 
thus  prescribed  it  cannot  be  enforced.168 

§  327.     Collection  of  taxes. 

When  the  right  to  levy  and  collect  taxes  has  been  once  granted 
to  a  subordinate  agent  by  the  sovereign,  it  then  becomes,  to  the 
extent  of  taxes  levied  under  such  authority,  one  which  cannot 
be  taken  away  by  subsequent  action  of  the  legislature.157  Its  ex- 
ercise can  be  invoked  either  by  the  corporation  itself  or  some  of 


the  city  charter.  O'Neill  v.  Dringer, 
31  N.  J.  Eq.  (4  Stew.)  507;  Howell 
v.  City  of  Philadelphia,  38  Pa.  471; 
Allegheny  City's  Appeal,  41  Pa.  60; 
People's  Nat.  Bank  v.  City  of  Ennis 
(Tex.  Civ.  App.)  50  S.  W.  632. 

is*  Eaton  v.  Chesebrough,  82  Mich. 
214.  Taxes  become  a  lien  from  the 
time  when  the  assessment  roll  and 
warrants  for  collection  come  into 
the  hands  of  the  receiver  of  taxes. 
Selby  v.  Levee  Com'rs,  14  La.  Ann. 
434;  Matter  of  Drainage  Com'rs,  28 
La.  Ann.  513;  McQuiddy  v.  Gates,  69 
Mo.  App.  156;  City  of  Port  Town- 
send  v.  Eisenbeis,  28  Wash.  533,  68 
Pac.  1045. 

155  City  of  Philadelphia  v.  Greble, 
39  Pa.  339. 

iss  Peoples'  Homestead  Ass'n  v. 
Garland,  107  La.  476,  31  So.  892. 

is?  City  of  Dubuque  v.  Illinois 
Cent.  R.  Co.,  39  Iowa,  56.  "It  is  ar- 
gued by  defendant's  counsel  that,  as 
the  city  of  Dubuque  is  a  municipal 
corporation  organized  for  political 
purposes,  its  corporate  powers  may 
be  abridged  or  entirely  taken  away, 
being  in  no  sense  vested  rights  as 
against  the  state.  It  is,  therefore, 
insisted  that  the  city  may  be  law- 
Abb.  Corp. — 48. 


fully  deprived  of  the  right  to  col- 
lect taxes  legally  levied.  Without 
contesting  the  correctness  of  coun- 
sel's premises,  it  is  very  plainly  to 
be  seen  that  their  conclusion  is  a 
non-sequitur.  It  must  be  remem- 
bered that  a  municipal  corporation 
though  a  public  and  political  insti- 
tution, deriving  its  life  and  powers 
from  the  state,  possesses  a  private 
and  proprietary  character  and,  as 
such,  may  acquire  and  hold  prop- 
erty and  make  contracts.  It  is  pro- 
tected in  its  property  by  the  same 
constitutional  guarantees  that  ex- 
tend over  natural  persons  and  the 
restriction  upon  legislative  action 
impairing  the  obligation  of  con- 
tracts preserves  those  made  with  it. 
Rights  held  by  it  in  its  last  named 
character  are  beyond  legislative  con- 
trol and  interference."  Citing,  Bow- 
doinham  v.  Town  of  Richmond  (6 
Greenl.)  6  Me.  112;  Benson  v.  City 
of  New  York,  10  Barb.  (N.  Y.)  223; 
Trustees  of  Aberdeen  Female  Acad- 
emy v.  City  of  Aberdeen,  21  Miss. 
(13  Smedes  &  M.)  645;  Town  of 
Milwaukee  v.  City  of  Milwaukee,  12 
Wis.  93;  State  v.  Haben,  22  Wis. 
660. 


754 


PUBLIC  REVENUES. 


327 


its  creditors  who  have  become  such  upon  the  faith  of  the  au- 
thority and  because  of  the  resulting  tax  levy.158 

The  grant  of  a  right  ever  carries  with  it  the  implied  power  to 
use  all  proper,  necessary  or  reasonable  means  and  agencies  for 
carrying  it  into  effect.159  The  right  to  levy  taxes  implies  the  pow- 
er to  enforce  or  collect  either  in  an  action160  brought  by  the  cor- 
poration against  the  party  delinquent  in  their  payment  or  through 
summary  proceedings  against  persons  or  property  subject  to 


issTrafton  v.  Inhabitants  of  Al- 
fred, 15  Me.  258.  No  such  right  can 
be  based,  however,  upon  an  illegal 
tax. 

159  Amite  City  v.  Clements,  24  La- 
Ann.  27.  The  grant  of  a  power  to 
levy  taxes  carries  with  it  the  im- 
plied right  to  enforce  their  payment 
through  judicial  proceedings.  City 
of  Aurora  v.  McGannon,  138  Mo.  38, 
39  S.  W.  469;  Stifel  v.  MacManus,  74 
Mo.  App.  55S;  Davis  v.  Simpson,  25 
Nev.  123,  58  Pac.  146;  Torrey  v. 
Willard,  55  Hun,  78,  8  N.  Y.  Supp. 
392;  Clark  v.  Locke,  56  Hun,  643,  9 
N.  Y.  Supp.  918.  A  city  having 
general  powers  may  accept  a  mort- 
gage on  real  estate  as  security  for 
taxes  which  had  accrued  tfiereon. 
City  of  Wilmington  v.  Sprunt,  114 
N.  C.  348,  19  S.  W.  348. 

i«o  Appanoose  County  v.  Vermil- 
ion, 70  Iowa,  365,  30  N.  W.  616. 
There  must  exist  statutory  or  con- 
stitutional /authority  to  enable  a 
county  to  maintain  an  action  to  re- 
cover delinquent  taxes. 

City  of  Burlington  v.  Burlington 
&  M.  R.  Co.,  41  Iowa,  134.  A  mu- 
nicipality may,  at  its  election,  avail 
itself  of  a  special  remedy  provided 
by  law  for  the  collection  of  taxes  or 
its  general  right  to  sue. 

City  of  Covington  v.  Covington 
Gas  Light  Co.,  8  Ky.  L.  R.  515,  2  S. 
W.  326;  City  of  Somerset  v.  Somer- 
set Banking  Co..  22  Ky.  L.  R.  1129, 


60  S.  W.  5;  Vanceburg  &  S.  L.  Turn- 
pike Road  Co.  v.  Maysville  &  B.  S. 
R.  Co.  (Ky.)  63  S.  W.  749;  Louis- 
ville Bridge  Co.  v.  City  of  Louis- 
ville, 23  Ky.  L.  R.  1655,  65  S.  W. 
814;  Greer  v.  City  of  Covington,  83 
Ky.  410;  Brown  v.  City  of  Cape 
Girardeau,  90  Mo.  377,  2  S.  W.  302; 
State  v.  Edwards,  162  Mo.  660,  63  S. 
W.  388.  A  delinquent  tax  bill  certi- 
fied by  the  collector  of  taxes  admis- 
sible in  such  an  action  brought  to 
collect  taxes  under  Rev.  St.  1889,  § 
7626. 

State  v.  Rainey,  74  Mo.  229.  A 
judgment  in  a  tax  case  rendered  by 
a  court  of  competent  jurisdiction 
and  with  no  defect  of  parties  is  not 
open  to  collateral  attack.  Eyerman 
v.  Blaksley,  78  Mo.  145.  In  such  an 
action  that  provision  of  the  city  pro- 
vision of  the  city  charter  making 
special  tax  bills  prima  facie  evi- 
dence of  liability  is  not  unconstitu- 
tional as  changing  "the  rules  of  ev- 
idence in  any  judicial  proceeding" 
contrary  to  Missouri  constitution, 
art.  4,  §  53. 

City  of  St.  Joseph  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  118  Mo.  671; 
City  of  San  Antonio  v.  Berry,  92 
Tex.  319,  48  S.  W.  496;  Dallas  Title 
&  Trust  Co.  v.  City  of  Oak  Cliff,  8 
Tex.  Civ.  App.  217,  27  S.  W.  1036; 
City  of  Seattle  r.  Doran,  5  Wash. 
482;  Albany  Mut.  Bldg.  Ass'n  v. 
Laramie,  10  Wyo.  54,  65  Pac.  1011. 


327 


TAXATION. 


755 


the  lien.161  The  party  plaintiff  to  such  an  action  is  usually  the 
corporation  represented  by  the  officers  or  agents  to  whom,  by  law, 
has  been  given  the  exercise  of  such  duty.162  The  true  owner 
should  be  made  a  party  defendant.  Proceedings  brought  against 
one  who  is  not  the  owner  of  property  cannot  result  in  an  enforce- 
able judgment  against  such  true  owner.163  The  question  of  sum- 
mary proceedings  will  be  considered  in  a  succeeding  section.164 
A  subsequent  purchaser  of  property  upon  which  illegal  taxes  have 
been  levied  is  substituted  for  the  owner  at  the  time  of  their  as- 
sessment and  levy  so  far  as  proceedings  to  restrain  their  col- 
lection is  concerned.185 


lei  McKay  v.  Batchellor,  2  Colo. 
591.  In  such  an  action  tax  officials 
have  no  authority  to  distrain  prop- 
erty outside  of  the  taxing  district. 
Doggett  v.  Walter,  15  Fla.  355;  Par- 
ker v.  City  of  Jacksonville,  37  Fla. 
342,  20  So.  538;  Smith  v.  Jones,  40 
Ga.  39;  Johnson  v.  Boske,  23  Ky.  L. 
R.  1845,  66  S.  W.  400,  following 
Richardson  v.  Boske,  23  Ky.  L.  R. 
1209,  64  S.  W.  919;  City  of  Jeffer- 
son v.  Curry,  77  Mo.  230;  McCrary 
v.  City  of  Comanche  (Tex.)  34  S. 
W.  679. 

162  School  Dist.  of  Ft.  Smith  v. 
Board  of  Improvement,  65  Ark.  343, 
46  S.  W.  418.  An  attorney's  fee  can 
be  included  as  a  part  of  the  penalty, 
"costs,"  etc. 

Parker  v.  City  of  Jacksonville,  37 
Fla.  342,  20  So.  538;  Webster  v.  Chi- 
cago, 62  111.  302;  People  v.  Brislin, 
80  111.  423;  Trustees  of  Elizabeth- 
town  Dist.  Public  School  v.  Louis- 
ville &  N.  R.  Co.,  17  Ky.  L.  R.  160, 
30  S.  W.  620;  Board  of  Education  of 
Hawesville  v.  Louisville  H.  &  St.  L. 
R.  Co.,  23  Ky.  L,  R.  376,  62  S.  W. 
1125;  Danforth  v.  Williams,  9  Mass. 
324;  Port  Huron  Tp.  v.  Potts,  78 
Mich.  435,  44  N.  W.  289;  Auditor 
General  v.  Maier,  95  Mich.  127,  54 
N.  W.  640;  Bangor  Tp.  v.  Smith 
Transp.  Co.,  112  Mich.  601.  71  N.  W. 
143.  A  township  under  How. 


St.  §  737,  can  collect  a  tax  due  in 
a  suit  authorized  by  its  supervisors. 

State  v.  Robyn,  93  Mo.  395,  6  S. 
W.  243;  City  of  Aurora  v.  Lindsay, 
146  Mo.  509,  48  S.  W.  642;  Chrig- 
strom  v.  McGregor,  74  Hun,  343,  26 
N.  Y.  Supp.  517;  City  of  Wilming- 
ton v.  Stolter,  122  N.  C.  395;  Mc- 
Combs  v.  City  of  Rockport,  14  Tex. 
Civ.  App.  560,  37  S.  W.  988. 

lea  Keating  v.  Craig,  73  Mo.  507. 
The  trustee  named  in  a  deed,  by 
which  land  subject  to  a  specific  tax 
has  been  conveyed,  held  not  a  neces- 
sary party  under  the  charter  of  the 
city  of  Kansas  City,  Missouri.  City 
of  St.  Joseph  v.  Baker,  86  Mo.  App. 
310. 

16*  See  post,  §  334. 

165  Vesta  Mills  v.  City  Council  of 
Charleston,  60  S.  C.  1.  This  was  a 
suit  for  an  injunction  to  restrain 
the  city  of  Charleston  from  collect- 
ing a  tax  from  the  Vesta  Mills.  The 
court  said:  "'We  now  come  to  the 
main  question  and  that  is  whether 
the  plaintiff,  the  Vesta  Mills,  is  lia- 
ble for  the  city  taxes.  •  •  * 
And  the  answer  depends  upon  a 
proper  construction  of  an  ordinance 
of  the  city  of  Charleston  passed  by 
its  officers  on  the  24th  day  of  March, 
1896.'  *  *  *  In  construing  this 
ordinance,  it  becomes  important  to 
into  the  intention,  purpose 


756 


PUBLIC  REVENUES. 


§  32S 


Personal  liability.  It  is  seldom  that  there  exists  a  personal 
liability  on  the  part  of  the  taxpayer  for  delinquent  and  un- 
paid taxes  levied  upon  real  property.  The  property  itself  can  be 
seized  and  taken  for  the  taxes  but  the  liability  of  the  owner  goes 
no  further,  and  personal  property  not  subject  to  such  a  tax  cannot 
be  reached  unless  there  exists  statutory  authority  for  such  a  lia- 
bility and  for  the  proceedings  necessary  to  enforce  it.168 

§  328.     Actions;  questions  raised. 

In  an  action  brought  by  a  public  corporation  against  the  proper 
party  to  enforce  the  collection  of  taxes  or  in  actions  brought  by 
a  taxpayer  to  defeat  or  restrain  the  collection  of  alleged  invalid 
taxes,  all  questions  which  go  to  a  determination  of  the  justice  and 
legality  of  the  tax  may  be  considered.167  These  arise  either  from 


and  object  of  this  ordinance, — what 
was  the  object  of  the  city  of  Charles- 
ton in  favoring  certain  manufac- 
tories, with  an  exemption  from  tax- 
ation, except  for  school  purposes? 
Such  industries  were  encouraged 
and  favored  as  a  means  and  for  the 
purposes  of  bringing  and  keeping 
within  the  borders  of  the  city  cap- 
ital and  labor  to  be  used  and  em- 
ployed in  the  manufacture  of  the 
staples  of  her  commerce.  Now,  upon 
the  facts,  we  find  an  old  abandoned 
plant  within  the  city  limits,  never 
entitled  to  claim  and,  as  a  fact,  nev- 
er claiming  any  exemption  from  tax- 
ation under  such  ordinance.  Both 
the  Charleston  Cotton  Mills  and  the 
Charleston  Mills  were  doomed  to 
failure  and  both  ceased  operations 
and  went  out  of  business.  While 
this  state  of  affairs  existed,  the 
plaintiff  purchased  its  plant  at  a 
forced  sale,  paying  $100,000  tor  its 
purchase,  organized  and  equipped  a 
cotton  mill,  put  blood,  life  and 
money  into  it,  and  is,  presumably  in 
a  prosperous  condition.  This,  in  my 
judgment,  is  within  the  very  letter 
and  spirit  of  the  ordinance  and  this 
company  is  just  as  much  entitled  to 


the  exemption  given  in  such  ordi- 
nance as  if  it  had  purchased  instead 
of  this  property,  some  old  abandoned 
warehouse  *  *  *  now  idle  in  the 
city.  It  is  contended  that  this  plain- 
tiff has  not  increased  the  taxable 
property  of  the  city;  that  the  prop- 
erty it  operates  was  already  on  the 
tax  books,  in  short,  that  it  has  erect- 
ed nothing.  This  position  cannot 
be  successfully  maintained,  for  the 
reason  that  the  premises  are  untrue. 
The  plaintiff  paid  out  at  the  start 
$100,000  for  this  property,  that  is 
subject  to  taxation.  It  employs 
hands,  creates  and  supplies  a  mar- 
ket in  trade,  and,  to  all  intents  and 
purposes,  is  a  new  factory  estab- 
lished within  the  city  limits,  and  is 
entitled  to  the  exemption  as  such." 

lee  City  of  Grand  Rapids  v.  Lake 
Shore  &  M.  S.  R.  Co.,  130  Mich.  238, 
89  N.  W.  932;  Berry  v.  City  of  San 
Antonio  (Tex.  Civ.  App.)  46  S.  W. 
273;  McCrowell  v.  City  of  Bristol, 
89  Va.  652,  16  S.  E.  867. 

IB?  Cloutman  v.  Pike,  7  N.  H.  209; 
Wright  v.  City  of  San  Antonio  (Tex. 
Civ.  App.)  50  S.  W.  406.  The  bur- 
den  of  proof  is  upon  one  attacking 
the  validity  of  a  tax. 


§  328 


TAXATION. 


757 


a  proposed  use  of  the  tax  levy,168  the  question  of  whether  it 
is  in  excess  of  the  limit  prescribed  by  law,169  or  the  right  of  the 
corporation  itself  to  levy  and  collect  the  tax.170  That  a  tax  levy 
be  valid  it  is  necessary  to  show  at  least  the  existence  of  a  de  facto 
organization171  although  the  party  may  be  estopped  from  ques- 


ts Pittsburgh,  C.,  C.  &  St.  L.  R. 
Co.  v.  Harden,  137  Ind.  486,  37  N. 
E.  324.  The  collection  of  a  railway 
tax  cannot  be  enjoined  because  of  a 
failure  to  comply  with  the  condi- 
tions accompanying  the  aid  when 
the  officers  having  charge  of  the  tax 
levy  may  withhold  a  payment  of  the 
same  unil  a  proper  compliance  by 
the  railroad  company  wih  such  con- 
ditions. Meader  v.  Lowry,  45  Iowa, 
684;  Hull  v.  Kearney  County 
Com'rs,  13  Neb.  539.  A  collection 
will  not  be  enjoined  of  a  tax  levy 
to  meet  a  contract  obligation  where 
the  contract  as  executed  was  in  ex- 
cess of  legal  authority. 

i69Dollahon  v.  Whittaker,  187  111. 
84;  French  v.  City  of  Burlington,  42 
Iowa,  614.  "The  constitutional  pro- 
vision is  as  follows:  'No  municipal 
corporation  shall  be  allowed  to  be- 
come indebted  in  any  manner  or  for 
any  purpose  to  an  amount  in  the 
aggregate  exceeding  five  per  cent 
on  the  value  of  the  taxable  property 
within  such  corporation — to  be  as- 
certained by  the  last  state  and  coun- 
ty tax  lists  previous  to  the  incur- 
ring of  such  indebtedness.'  *  *  * 
If  the  indebtedness  is  created  for 
any  purpose  it  is  within  the  consti- 
tutional inhibition.  Certainly  those 
words  include  the  necessary  as  well 
as  convenient  improvement  of  the 
streets  as  well  as  all  other  things 
deemed  necessary  and  proper  for  the 
comfort  or  health  of  the  people  of 
the  city.  It  matters  not  how,  or  for 
what  purpose  the  indebtedness  is 
incurred,  it  is  prohibited  unless  it 
can  be  shown  to  be  reasonably  cer- 


tain such  indebtedness  can  be  liqui- 
dated and  paid  from  the  ordinary 
current  revenues  of  the  city.  And 
he  who  contracts  with  a  city,  where- 
by an  indebtedness  is  created,  must 
at  his  peril,  take  notice  of  the  finan- 
cial standing  and  condition  of  the 
city  and  whether  the  proposed  in- 
debtedness is  in  excess  of  the  con- 
stitutional limitation.  Any  other 
rule  leaves  the  taxpayer  at  the  mer- 
cy of  the  officers  of  the  city  and 
contractor  and  would  render  the 
constitutional  provision  nugatory. 
Such  a  result  cannot  be  contem- 
plated or  allowed  to  prevail." 

State  v.  McLaughlin,  15  Kan.  228; 
Catron  v.  Santa  Fe  County  Com'rs, 
5  N.  M.  203,  21  Pac.  60.  The  same 
question  can  be  raised  in  an  action 
brought  by  a  taxpayer  to  enjoin  a 
tax  levy.  Flock  v.  Smith,  65  N.  J. 
•Law,  224,  47  Atl.  442;  Snyder  v. 
Kantner,  190  Pa.  440;  Tygart's  Val. 
Bank  v.  Town  of  Philippi,  38  W. 
Va.  219. 

i™  McCormac  v.  Robeson  County 
Com'rs,  90  N.  C.  441;  Devor  v.  Mc- 
Clintock,  9  Watts  &  S.  (Pa.)  80; 
Lowe  v.  Hardy,  7  Utah,  368,  26  Pac. 
982. 

171  Hamilton  v.  San  Diego  Coun- 
ty, 108  Gal.  273;  Trumbo  v.  People, 
75  111.  561.  The  question  of  the  le- 
gality of  a  corporate  organization 
cannot  be  inquired  into  in  an  action 
brought  to  restrain  the  collection 
of  taxes. 

Louisville  &  N.  R.  Co.  v.  Trustees 
of  Elizabethtown,  23  Ky.  L.  R.  1169, 
64  S.  W.  974.  After  the  lapse  of 
twenty  years  It  will  be  presumed 


758 


PUBLIC  REVENUES. 


§  328 


tioning  the  right  of  an  organization  to  levy  taxes.172    The  legality 
of  the  meeting  at  which  the  taxes  were  voted  may  be  raised173  and 


that  all  the  requirements  of  the 
statute  were  complied  with  in  es- 
tablishing a  corporate  organization. 
Holmes  v.  Baker,  82  Mass.  (16 
Gray)  259;  Green  Mountain  Stock- 
Ranching  Co.  v.  Savage,  15  Mont. 
189;  Grace  v.  City  of  Bonham,  26 
Tex.  Civ.  App.  161,  63  S.  W.  158. 

172  Stamper  v.  Roberts,  DO  Mo. 
683,  3  S.  W.  214.  The  plaintiff  may 
be  refused  relief  on  the  ground  of 
laches.  A  delay  of  four  years  in 
raising  questions  affecting  the  regu- 
larity of  the  proceedings  for  the  for- 
mation of  a  school  district  held  suf- 
ficient grounds  in  this  case  to  apply 
the  rule.  The  court  say:  "It  is 
contended  by  counsel  that  under 
sections  7023  and  7031  Rev.  St.,  the 
voters,  when  assembled  at  the  an- 
nual meeting  were  confined  to  the 
proposition  of  creating  the  new  dis- 
trict out  of  the  exact  territory  as 
described  in  the  petition  and  no- 
tices; and  that  as  they  did  not  do 
so,  but  changed  the  boundary  in 
the  particulars  above  stated,  the 
whole  proceeding  is  void.  Accord- 
ing to  the  petition  and  notices  it 
was  proposed  to  include  164  acres 
of  plaintiff's  fend  in  the  new  dis- 
trict. According  to  the  change  or 
amendment  made,  all  of  the  land 
was  not  included,  but  only  seven 
acres  of  it  and  it  is  the  change  thus 
made  upon  which  the  above  conten- 
tion is  based.  Conceding  for  the 
purposes  of  this  case,  without  deter- 
mining the  question  that  the  change 
thus  made  was  irregular,  and  in  ex- 
cess of  the  power  conferred,  the 
question  still  remains  whether,  un- 
der the  facts  of  the  case,  a  court  of 
equity  should  interpose  its  injunc- 
ttve  and  restraining  process.  The 


proceedings  to  establish  this  new 
district  occurred  in  April,  1880. 
This  suit,  assailing  its  validity,  was 
brought  in  1884.  In  the  meantime 
the  new  district  was,  in  fact,  organ- 
ized, and  has  remained  so  organ- 
ized, unchallenged  by  plaintiff,  ex- 
cept so  far  as  his  protest,  when  pay- 
ing school  taxes  assessed  against 
him,  may  be  regarded  as  challen- 
ging it  in  view  of  these  facts,  and 
the  further  fact  that  during  an  in- 
terval of  four  years  the  de  facto  ex- 
istence of  the  district  was  recog- 
nized, and  parties  interested  have 
adapted  themselves  to  the  changed 
conditions  of  things,  presumably, 
for  school  purposes,  and  incurred 
expenses  necessarily  incidental  to 
conducting  a  school,  we  are  fully 
justified  in  affirming  the  judgment 
of  the  Circuit  Court,  on  the  ground, 
if  on  no  other  that  plaintiff  by  his 
laches  has  allowed  a  condition  of 
things  to  exist  for  four  years  which 
would  make  it  inequitable  to  grant 
the  relief  prayed  for." 

iTsvieley  v.  Thompson,  44  111.  9. 
"The  only  law  to  which  we  have 
been  referred  under  which  authority 
to  issue  these  bonds  can  be  claimed 
is  the  act  of  1865.  By  the  first  sec- 
tion of  that  act,  the  various  towns 
of  the  several  counties  named  are 
authorized  to  levy  a  tax  of  not  more 
than  three  per  cent  on  the  taxable 
property  to  pay  bounties  to  volun- 
teers, substitutes  and  drafted  men, 
who  might  thereafter  enlist  or  be 
drafted  into  the  army.  The  second 
section  declares  that,  when  any  ten 
legal  voters  of  any  town  shall  make 
a  request  in  writing,  it  shall  be 
the  duty  of  the  supervisor  to  call 
a  special  election  within  five  days 


328 


TAXATION. 


759 


the  doctrine  of  estoppel  is  also  applicable.174  The  use,  if  legal,  to 
which  moneys  proposed  to  be  raised  by  taxation,  if  within  the 
limit  prescribed  by  law,  cannot  ordinarily  be  questioned  by  a  tax- 
payer.176 Irregularities  in  the  preliminary  proceedings,  the  actual 


after  the  request,  to  determine 
whether  such  tax  shall  be  levied  by 
posting  notices  in  three  of  the  most 
public  places  in  the  town  at  least 
ten  days  next  previous  to  the  elec- 
tion. The  notices  are  required  to 
state  the  object  of  the  election. 

*  *     *     This  being  so  before  they 
could   act,   in  returning   the  certifi- 
cate  to    the  county   clerk,   the   law 
has  declared,  that  they  shall  be  au- 
thorized by  a  majority  of  the  voters 
of   the  town.     It  is  from   the  con- 
sent of  the  voters  alone  that  their 
authority  is   derived;    until  that   is 
had,  they  aTe  powerless  to  act  and 
their  consent  must  be  obtained    in 
the  mode  prescribed  by  law,  and  it 
has  required  that  it  shall  be  by  a 
vote  for  and  against  the  imposition 
of  the  tax,  and  for  the  purpose  of 
having  a  fair  expression  of  the  will 
of    the    taxpayers,    an    opportunity 
was  intended  by  the  law  makers  to 
be   given   to   the   voters   to   express 
their   wishes.      Hence,   the    require- 
ment that  a  notice  should  be  given 
by  the  persons  and  in  the  manner 
prescribed.     This  notice  was  intend- 
ed  to   be,   and   is,   essential   to   the 
validity  of  the  election.     It  was  in- 
dispensable to  the  legal   exercise  of 
the   power   of   levying  the   tax.     It 
was  important  to  prevent  fraud  and 
oppression  and  was  therefore  made 
indispensable.     Without    the   notice, 
an  election  could  not  be  legally  held, 
and  without  a  legal  election  result- 
ing in  favor  of  the  tax,  no  power 
was   conferred   on  the  town  officers 
to  levy  the  tax."    Stowe  v.  Town  of 
Stowe,  70  Vt.  609,  41  Atl.  1024. 

*  Irvin  v.   Gregory,   86  Ga.  605; 


Thatcher  v.  People,  98  111.  632. 
"Nevertheless,  under  the  circum- 
stances of  this  case,  we  do  not  think 
appellant  is  in  a  position  to  ques- 
tion the  regularity  or  validity  of 
the  election  in  question  or  the  sub- 
sequent proceedings  of  the  directors 
had  upon  the  faith  of  it  in  borrow- 
ing the  money  and  issuing  the 
bonds  for  the  payment  of  which  the 
tax  in  controversy  was  levied.  The 
evidence  shows  that  he  was  present 
and  participated  in  the  proceedings 
of  the  meeting  or  election  held  in 
pursuance  of  these  notices,  and 
which  authorized  the  raising  of  the 
money  for  which  the  bonds  in  ques- 
tion were  issued,  and  so  far  from 
objecting  to  the  action  of  the  meet- 
ing in  that  respect,  he,  in  person, 
seconded  the  motion  to  raise  the 
money  in  the  manner  and  for  the 
purpose  we  have  stated.  The  money 
having  been  thus  obtained  in  part, 
through  his  own  instrumentality 
and  the  district  to  which  he  be- 
longed having  had  the  benefit  of  it, 
we  hold  that,  under  these  circum- 
stances, he  is  estopped  from  ques- 
tioning the  regularity  or  validity 
of  what  was  done  under  the  author- 
ity of  those  proceedings." 

Attorney  General  v.  Burrell,  31 
Mich.  25;  T.  B.  Scott  Lumber  Co. 
v.  Oneida  County,  72  Wis.  158,  39 
N.  W.  343. 

ITS  Dyer  v.  Erwin,  106  Ga.  845; 
Lawrence  v.  Trainer  (111.)  27  N.  E. 
197;  Town  of  Lemont  v.  Singer  6 
T.  Stone  Co.,  98  111.  94.  "A  court 
of  equity  is  not  vested  with  juris- 
diction to  conduct  the  affairs  of  a 
township  or  to  supervise  and  con- 


760 


PUBLIC  REVENUES. 


§  328 


levy  and  assessment,  or  in  tax  returns176  as  well  as  irregularities 
in  connection  with  the  assessment  proper,  may  be  raised.177  The 
fact  of  an  irregularity  or  an  informality  does  not  necessarily,  how- 
ever, invalidate  the  tax  where  such  irregularity  or  defect  operates 
without  prejudice  to  the  taxpayer.178 

The  same  subject.  The  validity  of  tax  laws  may  also  be 
determined  in  actions  brought  to  collect  or  enforce  tax  levies. 
The  act  under  which  the  tax  is  attempted  to  be  raised  or  its  collec- 
tion enforced  may  be  special  legislation  within  the  meaning  of 
a  constitutional  provision  prohibiting  the  passage  of  special  or 
local  laws,179  or  it  may  lack  the  conditions  prescribed  by  the  con- 
stitution requiring  uniformity  and  equality  of  taxation,  either  as 
to  the  subject  or  the  rate  of  taxation.180  Other  questions  con- 
cerning the  constitutionality  of  tax  laws  as  applied  to  the  legis- 
lation itself  may  be  also  raised.  The  subject  of  the  act  should  be 


trol  the  action  of  its  officers  or  the 
people  so  long  as  they  confine  them- 
selves to  the  powers  conferred  by 
the  statute.  So  long  as  they  keep 
within  the  powers  conferred,  they 
are  amenable  to  no  control  By  the 
courts.  It  is  only  when  they  tran- 
scend their  powers  that  a  court  of 
chancery  can  intervene  to  restrain 
their  action.  It  has  no  power  to 
regulate  and  control  their  action  so 
long  as  they  perform  no  function 
outside  of  the  grant  of  power  by  the 
General  Assembly.  The  courts 
have  no  right  to  say  that  although 
the  officers  and  people  have  only  ex- 
ercised legitimate  power,  the  action 
is  unwise  or  is  not  for  the  best  in- 
terests of  the  people  of  the  munici- 
pality and  the  act  should  be  re- 
strained. That  belongs  alone  to  the 
officers  and  the  people.  Here  the 
tax  was  voted  by  the  people  and 
certified  by  the  town  clerk  to  the 
county  clerk  for  extension  against 
the  taxable  property  of  the  town,  as 
required  by  law.  In  all  of  this  we 
are  unable  to  discover  anything  il- 
legal, or  in  the  slightest  degree 
irregular,  and  if  it  has  been  legally 


done,   equity   has    no   power   to    en- 
join the  tax." 

People  v.  Sisson,  98  111.  335;  Free- 
land  v.  Hastings,  92  Mass.  (10  Al- 
len) 570;  Lee  v.  Mehew,  8  Okl.  136, 
56  Pac.  1046.  See,  however,  as  hold- 
ing to  the  contrary,  Conner's  Ap- 
peal. 103  Pa.  356. 

176  Hersey      v.      Barren      County 
Sup'rs,  37  Wis.  75;   Marsh  v.  Clark 
County    Sup'rs,    42    Wis.    502;     Sal- 
scheider  v.  City  of  Ft.  Howard,  45 
Wis.  519. 

177  Taylor  v.  McFadden,  84  Iowa, 
262,  50  N.  W.  1070;  Hundley  v.  Sin- 
gleton, 23  Ky.  L.  R.  2006,  66  S.  W. 
279;   City  of  Rockland  v.  Ulmer,  84 
Me.   503;    State  v.  Chicago  &  A.  R. 
Co.,  165  Mo.  597,  65  S.  W.  989. 

ITS  Brady  v.  Burke,  90  Cal.  1;  De 
Koven  v.  City  of  Lake  View,  129  111. 
399;  Morrison  v.  Hershire,  32  Iowa, 
276;  Galbreath  v.  Newton,  45  Mo. 
App.  312. 

179  Duluth  Banking  Co.  v.  Koon, 
81  Minn.  486. 

iso  Gage  v.  Graham,  57  111.  144; 
Knowlton  v.  Rock  County  Sup'rs,  9 
Wis.  410. 


328 


TAXATION. 


761 


expressed  in  the  title.181  It  should  not  include  more  than  one 
subject  and  that  contained  in  its  title,  and  other  principles  of 
constitutional  law  may  be  invoked.182  The  doctrine  of  res  ad- 
judicata  may  apply  to  the  parties  concerned  in  such  litigation.183 


isi  City  of  Knoxville  v.  Lewis,  80 
Tenn.  (12  Lea)  180. 

iss  state  v.  City  of  New  Orleans, 
42  La.  Ann.  92,  7  So.  674.  "The  op- 
position of  the  city  to  the  consti- 
tutionality of  the  act  may  be  sum- 
marized as  follows:  (1)  It  em- 
braces two  objects;  (2)  it  attempts 
to  amend  the  city  charter  in  a  pro- 
hibited manner;  (3)  it  is  a  local  or 
special  enactment  which  was  adopt- 
ed without  previous  publication  of 
intention,  etc.;  (4)  it  requires  the 
city  to  pay  through  the  board  of 
directors,  a  debt  which  it  does  not 
owe;  (5)  it  requires  the  city  to 
make  an  appropriation  for  school 
purposes  which  the  city  cannot  be 
compelled  to  raise  by  a  school  tax. 

*  *     *    The  books  are  full  of  cases 
in  which  political  corporations  have 
been  recognized  the  privilege  of  set- 
ting  up   the   unconstitutionality   of 
law   under  which   some  unwarrant- 
able right  against  their  revenue  and 
property  was  sought  to  be  enforced 
and   in  which   the  legality  of  such 
defenses  has  been  sanctioned.    When, 
therefore,   the   courts  have   said,  in 
cases  of  that  category  that  such  cor- 
porations   cannot    resist    legislation 
affecting    them,    they    would    mean, 
and  meant  only,  constitutional,  and 
in  no  way  unconstitutional   legisla- 
tion for  the  glaring  reason  that  to 
have    meant   and    said    the    reverse 
would  have  been  to  have  held  that 
municipal   corporations  must  in  all 
contingencies    accept,    and    further 
unconstitutional    legislation    which 
would   be   a  monstrous   proposition. 

*  *    *    Here  the  controverted  ques- 


tion involves  the  right  of  the  legis- 
lature to  dispose  without  warrant 
and  in  spite  of  constitutional  inhi- 
bition, of  a  large  portion  of  the 
city's  revenue  for  a  specific  purpose, 
injuriously,  it  is  claimed,  to  other 
superior  purposes;  in  other  words 
the  power  of  that  body  to  divert  a 
part  of  the  alimony  of  the  city  for 
an  object  for  which  it  could  not 
be  forced  to  provide,  which  is  not 
one  of  her  essential  wants  and  ne- 
cessities and  which  in  amount  is 
larger  than  that  which  the  city  can 
concentrate  to  that  end.  In  sup- 
port of  her  resistance,  the  city  in- 
vokes the  organic  law  which  pre- 
vents the  legislature  from  enacting, 
and  which  has  vested  it  with  a  dis- 
cretion which  cannot  be  coerced  and 
which  she  had  reasonably  exercised. 
It  would  be  strange  indeed,  if  after 
the  defendants  have  been  command- 
ed to  show  cause  why  the  relief 
sought  against  them  should  not  be 
granted,  they  could  be  met,  when 
they  appear  in  response  with  the  ob- 
jection that  they  have  no  standing 
in  court." 

iss  City  of  New  Orleans  v.  Citi- 
zens' Bank  of  Louisiana,  167  U.  S. 
371;  Stone  v.  Bank  of  Commerce, 
174  U.  S.  412.  But  if  certain  public 
officials  have  no  authority  to  make 
contracts  concerning  the  payment 
of  a  tax,  the  city  will  not  be  bound 
by  it. 

James  v.  City  of  Louisville,  19 
Ky.  L.  R.  447,  40  S.  W.  912.  The 
rights  of  individuals  cannot  be  af- 
fected by  a  suit  to  which  they  were 
not  made  parties.  Stone  v.  Bank  of 


762 


PUBLIC  REVENUES. 


§  329 


§  329.    Use  of  proper  remedy  by  taxpayers  to  prevent  collection 
of  illegal  taxes. 

The  levy  and  collection  of  taxes  is  ordinarily  a  complicated 
matter  and  involves  the  granting  of  the  original  authority,  the 
assessment  of  property  by  the  proper  officials  as  a  basis  of  taxa- 
tion, the  preliminary  acts  necessary  to  the  actual  levy,  the  levy 
and  apportionment  of  taxes,  their  collection  by  the  public  officials 
and  in  the  case  of  delinquency  by  the  taxpayer,  the  enforcement 
by  the  legal  remedies.  That  a  taxpayer  who  deems  a  tax  illegal 
raise  the  question  he  deems  involved,  it  is  necessary  that 
this  be  done  at  the  time  and  in  the  manner  prescribed  by  law.184 
He  may  be  given  the  right  to  appeal  from  the  action  of  the  assess- 
ing board  or  body  from  an  erroneous  or  unjust  assessment  and 
failing  this  he  may  be  refused  the  right  to  raise  subsequently  in 
an  action  brought  against  him  by  the  proper  authorities  ques- 
tions relating  to  the  validity  of  the  tax  which  the  law  intended 
should  be  corrected  in  the  prior  application  for  abatement,  pro- 
ceeding or  appeal.185  The  use  of  an  improper  remedy  or  the  fail- 


Kentucky,  174  U.  S.  799,  affirming 
88  Fed.  383;  Taxpayers  v.  O'Kelly, 
49  La.  Ann.  1039. 

is*  Morgan  v.  Graham,  1  Woods, 
124,  Fed.  Gas.  No.  9,801.  A  private 
suit  against  state  officials,  however, 
cannot  be  maintained  by  a  taxpayer 
to  prevent  them  from  issuing  bonfls 
authorized  and  required  to  be  is- 
sued. 

Kansas  City  v.  Cullinan,  65  Kan. 
68,  68  Pac.  1099;  Guillory  v.  Avoy- 
elles  R.  Co.,  104  La.  11,  28  So.  899; 
Black  v.  Common  Council  of  De- 
troit, 119  Mich.  571,  78  N.  W.  660. 
Where  a  taxpayer's  rights  depend 
upon  a  resolution  passed  by  the 
city  council,  laches  cannot  be  at- 
tributed to  him  unless  based  on  act- 
ual notice  of  the  passage  of  such 
resolution.  The  court  say:  "Coun- 
sel for  defendants  contend  that  the 
complainants  were  guilty  of  laches 
in  not  filing  their  bill  sooner  as  it 
appears  that  the  common  council  as 


early  as  June  12th  adopted  a  reso- 
lution ordering  the  controller  to 
transfer  this  $5,000  to  the  entertain- 
ment fund  and  that  fifteen  days 
elapsed  from  that'  time  before  de- 
fendant Smith  had  his  material  on 
the  ground  and  nineteen  days  be- 
fore the  bill  was  filed.  It  is  not 
claimed  that  complainants  had  act- 
ual notice  of  these  matters  but  coun- 
sel contend  that  the  council  pro- 
ceedings being  regularly  published, 
this  was  sufficient  notice.  We 
think,  however,  that  actual  notice 
or  knowledge  of  a  proceeding  com- 
plained of  is  necessary  to  take 
away  the  right  to  object  thereto  on 
the  score  of  laches."  Richter  v. 
Merrill,  84  Mo.  App.  150. 

IBS  Petaluma  Pav.  Co.  v.  Singley, 
136  Gal.  616,  69  Pac.  426;  Tackett 
v.  Stevenson,  155  Ind.  407,  58  N.  E. 
534;  Macklot  v.  City  of  Davenport, 
17  Iowa.  379.  Where  a  city  council 
have  the  power  to  "correct  or  equal- 


330 


TAXATION. 


763 


nre  to  use  it  at  the  right  time  a  proper  remedy  will  result  in  a 
defeat  of  his  effort  to  set  aside  the  tax.186 


§  330.     Compromise  of  taxes. 

The  levy  and  collection  of  taxes  is  an  inextinguishable  and  un- 
abatable  right  and  usually  such  a  claim  urged  either  by  the  sov- 
ereign or  a  delegated  agency  cannot  be  compromised.  Any  agree- 
ment or  contract  effecting  such  a  result  is  incapable  of  enforce- 
ment.187 If,  however,  the  right  to  compromise  is  expressly  grant- 
ed by  law,  this  rule  will  not  apply.188 


ize  any  erroneous  or  unjust"  assess- 
ment of  taxes,  a  court  of  equity 
cannot  interfere  by  injunction  to 
restrain  the  collection  of  taxes  er- 
roneously assessed  where  the  right 
afforded  by  the  charter  was  not  in- 
voked by  the  taxpayer.  Howe  T. 
City  of  Boston,  61  Mass.  (7  Gush.) 
273;  School  Dist.  No.  6  v.  Select- 
men of  Orford,  63  N.  H.  277;  State 
v.  Cappeller,  39  Ohio  St.  455. 

186  EX  parte  Howard-Harrison 
Iron  Co.,  130  Ala.  185,  30  So.  400; 
Burnham  v.  Rogers,  167  Mo.  17,  66 
S.  W.  970;  Devine  v.  Franks  (N.  J. 
Bq.)  47  Atl.  228;  Clark  v.  Board  of 
Education  of  Starr  Tp.,  44  Ohio  St. 
595,  9  N.  E.  790;  Seabury  v.  How- 
land,  15  R.  I.  446,  8  Atl.  341. 

IST  Stone  v.  Bank  of  Commerce, 
174  U.  S.  412;  City  of  Louisville  v. 
Louisville  R.  Co.,  23  Ky.  L.  R.  390, 
63  S.  W.  14.  There  is  no  question 
as  to  the  application  of  the  rule 
stated  in  the  text  where  by  statu- 
tory enactment  or  constitutional 
provision  a  public  corporation  di- 
rectly or  indirectly  is  prohibited 
f^om  releasing  or  authorizing  the 
release  either  wholly  or  in  part  of 
the  indebtedness  or  liability  of  any 
person  to  such  corporation. 

City  of  New  Orleans  v.  New  Or- 


leans Sugar  Shed  Co.,  35  La.  Ann. 
548.  The  rule  also  applies  to  a 
contract  for  a  commutation  of  tax- 
ation. City  of  Kansas  v.  Hannibal 
&  St.  J.  R.  Co.,  81  Mo.  285.  See, 
however,  to  the  contrary,  the  case 
of  Hintrager  v.  Richter,  85  Iowa, 
222,  52  N.  W.  188. 

iss  City  Item  Co-Operative  Print- 
ing Co.  v.  City  of  New  Orleans,  51 
'La.  Ann.  713.  A  taxpayer  may 
bring  an  action  to  test  the  validity 
of  a  compromise  of  delinquent  taxes 
made  by  a  municipal  corporation  of 
which  he  is  a  taxpayer. 

Essex  Public  Road  Board  v. 
Skinkle,  49  N.  J.  Law,  641.  A  road 
board  is  a  public  quasi  corporation 
and  the  legislative  branch  of  the 
government,  therefore,  can  provide 
for  the  re-adjustment  of  road  taxes 
levied  by  it  without  impairing  the 
obligation  of  any  contract  with  such 
road  board.  This  case  further  holds 
that  considering  the  character  of 
the  corporation,  a  contract  between 
the  two  would  be  impossible.  The 
road  board  holding  its  powers  en- 
tirely at  the  will  of  the  legislature. 
Essex  Public  Road  Board  v.  Skinkle, 
49  N.  J.  Law,  65;  City  of  San  An- 
tonio v.  Raley  (Tex.  Civ.  App.)  32 
S.  W.  180. 


764 


PUBLIC  REVENUES. 


§   332 


§  331.    Right  to  prescribe  and  collect  penalties. 

Where  the  right  is  given  to  levy  and  enforce  the  collection  of 
taxes  or  license  fees,  the  public  corporation  has  the  power  to 
prescribe  penalties  that  may  accrue  upon  a  failure  to  pay  the 
tax  or  fee  at  the  time  fixed  by  law.  A  delinquent  taxpayer  then 
becomes  liable  either  personally  or  through  his  property  not  only 
for  the  amount  of  the  tax  levy  as  originally  made  but,  in  addition, 
the  penalties  prescribed.189  These  consist  either  of  a  specific 
amount  or  of  interest  to  be  added  at  a  certain  rate  with  possibly 
an  increased  rate  after  the  lapse  of  additional  time.190 

§  332.    Irregularities. 
Ordinarily  injunctions  or  restraining  orders  will  not  be  granted 


iss  Denver  City  R.  Co.  v.  City  of 
Denver,  21  Colo.  350,  41  Pac.  826, 
19  L.  R.  A.  608;  City  of  Burlington 
v.  Burlington  &  M.  R.  R.  Co.,  41 
Iowa,  134;  Augustine  v.  Jennings, 
42  Iowa,  198;  Hintrager  v.  McEl- 
hinny,  112  Iowa,  325,  83  N.  W.  1063, 
modifying  82  N.  W.  1008;  State  v. 
Consolidated  V.  Min.  Co.,  16  Nev. 
432;  City  of  San  Antonio  v.  Raley 
(Tex.  Civ.  App.)  32  S.  W.  180.  The 
right  to  prescribe  a  penalty  for  neg- 
lect to  pay  taxes  promptly  must  be 
expressly  given  a  subordinate  cor- 
poration. City  of  Seattle  v.  Whit- 
tlesey,  17  Wash.  292,  49  Pac.  489. 
Laws  of  1897,  c.  71,  §  118,  remitting 
certain  penalties  from  unpaid  taxes 
does  not  apply  to  assessments  lev- 
ied for  local  improvements. 

iso  City  of  New  Orleans  v.  Fisher, 
180  U.  S.  185;  Weber  v.  City  of  San 
Francisco,  1  Cal.  455;  State  v.  Nor- 
ton, 63  Minn.  497,  65  N.  W.  935. 
"It  is  also  claimed  by  the  defend- 
ants that  in  no  event  should  penal- 
ties be  added  to  the  assessment. 
Gen.  St.  1894,  §  1345,  provides  that 
any  owner  or  any  party  interested 
In  any  piece  or  parcel  of  land 
against  which  an  assessment  is  lev- 


ied may  pay  the  full  amount,  or 
any  part,  with  interest  thereon  at 
the  rate  of  eight  per  cent  per  annum 
to  the  date  of  payment,  to  the  vil- 
lage treasurer  at  any  time  before 
the  roll  is  delivered  to  the  county 
treasurer,  but  after  that  the  assess- 
ment roll  is  delivered  to  the  county 
treasurer,  the  assessment  or  any 
part  thereof  as  has  been  certified  to 
the  county  auditor  must  be  paid  to 
the  county  treasurer,  with  interest, 
and  subject  to  all  penalties  allowed 
by  law;  and  such  treasurer  is  re- 
quired to  report  all  such  payments 
to  the  county  auditor  and  village 
treasurer,  giving  items  of  assess- 
ment, interest  and  penalty  thereon. 
This  assessment  is  a  special  tax 
but  the  county  auditor  is  required 
to  put  it  upon  the  proper  tax  list, 
to  be  collected  the  same  as  other 
taxes  are  to  be  collected.  The  gen- 
eral tax  law  of  the  state  also  re- 
quires the  county  auditor  to  enter 
the  amount  of  all  special  taxes  in 
the  proper  column  after  all  the  tax 
lists  are  delivered  to  the  county 
treasurer.  It  is  his  duty  to  collect 
all  taxes  upon  the  tax  list  and  it 
they  are  unpaid  after  June  1st,  a 


§  334  TAXATION.  765 

on  the  application  of  a  taxpayer  because  of  mere  irregularities, 
informalities  or  defects  in  the  proper  proceedings  leading  to  the 
entering  of  the  tax  in  the  proper  records.191  The  rule  is  applied 
so  long  as  such  irregularities  or  defects  do  not  affect  the  jus- 
tice or  the  validity  of  the  tax  nor  of  acts  comitted  or  omitted 
based  upon  some  provision  of  the  statute  which  is  held  to  be 
of  a  directory  nature.  It  applies  not  only  to  proceedings  by  vari- 
ous bodies  who  act  upon  and  in  the  levy  and  assessment  of  taxes, 
but  also  to  all  papers  or  documents  required  by  law  or  custom 
to  be  drawn  and  filed  by  such  officials  or  official  bodies.192 

§  333.    Enforcement  of  lien. 

Although  the  lien  for  taxes  as  a  rule  is  a  prior,  paramount  and 
superior  one,  yet  the  state  or  its  delegated  agencies  must,  in  the 
enforcement  and  collection  of  the  taxes,  proceed  in  the  manner 
required  by  law  of  other  lienholders  of  record  on  property  upon 
which  the  state  seeks  to  attach  its  superior  lien.193  The  neglect 
to  do  this  may  result  in  a  failure  of  the  proceedings  as  to  other 
lienholders.  In  the  collection  of  taxes  by  action  under  the  stat- 
ute, the  statutory  provisions  relating  to  practice  apply  to  the 
state. 

§  334.    Summary  proceedings. 

The  power  may  be  given  a  public  corporation  to  collect  a  delin- 
quent tax  through  what  might  be  termed  a  summary  proceeding, 
namely,  the  arbitrary  taking  of  the  property  subject  to  tax  upon 
the  performance  of  certain  acts  required  by  law.194  The  proper- 
ten  per  cent  penalty  is  added,  and  proper  officials  and  at  the  proper 
after  January  1st  an  additional  pen-  time;  if  this  is  not  done  it  cannot 
alty  of  five  per  cent.  Taking  all  of  be  the  basis  of  a  legal  special  tax 
the  provisions  of  the  statute  into  levy  for  school  purposes.  Mussey 
consideration  the  penalties  added  v.  White,  3  Me.  (3  Greenl.)  290; 
to  these  unpaid  taxes  were  fully  au-  State  v.  Edwards,  162  Mo.  660,  63 
thorized  by  law."  S.  W.  388. 

isi  Le  Roy  v.  City  of  New  York,  i»s  City  of  Newport  v.  Masonic 
4  Johns.  Ch.  (N.  Y.)  352.  Temple  Ass'n,  20  Ky.  L.  R.  266,  45 

i»2  Hoover  v.  People,  171  111.  182;     S.  W.  881,  46  S.  W.  697;   Smith  v. 
People  v.  Chicago  &  N.  W.  R.  Co.,    Gatewood,  3  S.  C.  333. 
183   111.   311.     A  certificate  required        l^*  Merriam   v.   Moody's   Ex'rs,   25 
by    school   law,   art.    8,    §    2,    Laws    Iowa,   163.     The  power  to  tax  real 
1889,  p.  316,  must  be  signed  by  the    property  does  not  necessarily  imply 


766  PUBLIC  REVENUES.  §   334 

ty  owner  not  having  the  same  rights  as  when  the  state  attempts 
to  collect  such  delinquent  taxes  in  an  ordinary  action  governed 
by  the  usual  rules  of  practice.  Statutes  conferring  such  sum- 
mary power  must  be  strictly  followed  since  to  a  large  degree 
they  partake  of  the  nature  of  a  forfeiture.185  In  these  proceed- 
ings the  rule  is  different  from  that  applied  to  the  enforcement 
of  the  right  under  general  laws.  There  irregularities  or  informali- 
ties may  be  cured  through  amendment  or  otherwise  without  de- 
feating the  right.  In  summary  proceedings  each  and  every  act 
prescribed  by  law  granting  the  right  must  be  strictly  done,  both 
in  the  manner  and  at  the  time  provided.  A  failure  or  neglect 
in  this  respect  may  result  in  a  loss  of  the  power.199  The  validity 

the  right  to  sell  such  property  for  uing  its  existence  and  performing 
the  nonpayment  of  the  taxes  lev-  its  regular  functions  until  a  reve- 
led, nue  could  be  collected  by  the  pro- 
Bigger  v.  Ryker,  62  Kan.  482,  63  cesses  provided  for  the  enforcement 
Pac.  740.  An  act  authorizing  the  of  debts  owing  to  individuals,  it 
sale  of  real  estate  for  delinquent  would  be  continually  at  the  mercy 
taxes  does  not  conflict  with  the  con-  of  factions  and  discontented  par- 
stitutional  provision  that  a  person  ties." 

cannot  be  deprived  of  his  property  195  Hays  v.  Hogan,  5  Cal.  241 ;  But- 

without  his  consent  except  by  due  ler  v.  Nevin,  88  111.  575;  City  of  St. 

process  of  law.  Louis   v.   Russell,   9   Mo.   507.     The 

Edwards    v.    Taliafero,    34    Mich,  grant  of  the  power  to  tax  does  not 

13;  'Loose  v.  Navarre,  95  Mich.  603,  of    itself    imply    the    right    to    sell 

55  N.  W.  435.     If  the  tax  be  void,  property   for  the  nonpayment  of   a 

the  whole  proceeding  for  their  col-  tax  levy;  where,  however,  the  grant 

lection  necessarily  fails.     Bergen  v.  provides  for  a  redemption  of  prop- 

Clarkson,   6   N.   J.   Law    (1   Halst.)  erty  sold,  the  right  to  sell  is  then 

352;   Bole  v.  McKelvy,  189  Pa.  505.  clearly  implied. 

Cooley,     Taxation,     p.     432.      "Very  Doe   v.    Whitlock,    1   Tyler    (Vt.) 

summary    remedies    have    been    al-  305;    Lane    v.    James,    25    Vt.    481; 

lowed,    in    every   age   and    country,  City    of    Alexandria    v.    Hunter,    2 

for    the    collection    by    the    govern-  Munf.   (Va.)   228.     In  summary  pro- 

ment   of    its   revenues.     They   have  ceedings   nothing  will  be  presumed 

been   considered   a   matter   of   state  in  favor  of  the  plaintiff, 

necessity.     Without  them,  it  might  iss  state  v.  Mayhew,  2  Gill.  (Md.) 

be  possible  for  a  party  which  had  *87;   Collamer  v.  Drury,  16  Vt.  574. 

been   defeated   in   its   efforts   to   ob-  "The   question   how   far   a   tax   bill 

tain   possession   of  the   government  and  warrant  regular  upon  their  face 

in  the  constitutional   way,   to   crip-  are  a  justification  to  the  collector, 

pie  the  government  for  the  time  be-  is  presented  for  adjudication.     The 

ing,  and  possibly  to  break  it  up  al-  words  of  the  present  statute  are  'No 

together.     If  the  state  might  be  de-  collector  shall  be  liable  to  any  ac- 

prived  of  the  resources  for   contin-  tion   which    shall    accrue    in    conse- 


§  334 


TAXATION. 


767 


of  the  tax  is  necessarily  the  basis  of  all  subsequent  legal  pro- 
ceedings and  if  its  character  be  established  as  invalid  they  will 
necessarily  fail  and  tax  leases,  deeds  or  other  conveyances  given 
in  execution  of  a  summary  power,  will  be  void.197 

These  proceedings  usually  provide,  in  connection  with  the  col- 
lection of  delinquent  taxes,  for  a  sale  of  the  property  subject  to 
the  tax198  upon  the  publication  of  a  delinquent  tax  list;  this  list 


quence  of  any  mistake,  mischarge 
or  overcharge  in  the  tax  bill  com- 
mitted to  him  for  collection.'  This 
provision  is  substantially  the  same 
with  that  contained  in  the  statute 
of  1797  and  which  has  been  in  force 
ever  since  that  time.  It  has  never 
been  considered  in  this  state,  that 
the  tax  bill  and  warrant  were,  of 
themselves,  any  sufficient  justifica- 
tion to  the  officer.  Neither  the  vote 
of  the  town,  nor  the  assessment  of 
the  tax  by  the  selectmen,  is  in  the 
nature  of  the  proceedings  of  a  court 
either  of  general  or  special  jurisdic- 
tion. The  legality  of  all  the  pre- 
vious proceedings  must  be  shown 
by  the  collector.  The  'mistake,  mis- 
charge  or  overcharge'  alluded  to  in 
the  statute  cited,  doubtless  refer 
solely  to  the  writing  out  the  assess- 
ment, and  the  little  mistakes  which 
might  always  be  liable  to  occur,  if 
strict  mathematical  accuracy  were 
required." 

197  Haines  v.  Young,  132  Cal.  512, 
64  Pac.  1079.  A  tax  deed  issued 
upon  the  nonpayment  of  assess- 
ments for  local  improvements  is  not 
prima  facie  evidence  of  the  validity 
of  all  preceding  steps. 

Ansley  v.  Wilson,  50  Ga.  418; 
Packard  v.  Inhabitants  of  New  Lim- 
erick, 34  Me.  266.  A  town  does  not 
warrant  a  title  to  property  conveyed 
by  it  under  a  tax  deed  and  is  not 
liable  to  the  purchaser  on  a  failure 
of  title.  Edwards  v.  Taliafero,  34 
Mich.  13;  Loose  T.  Navarre,  95  Mich. 


603,  55  N.  W.  435;  City  of  St.  Louis 
v.  Gorman,  29  Mo.  593.  A  city  is 
not  estopped  to  claim  property  as  its 
own  by  the  action  of  its  officers  in 
taxing  by  mistake  property  belong- 
ing to  the  city  which  is  subsequent- 
ly sold  upon  a  failure  to  pay  the 
taxes  levied  and  conveyed  to  third 
parties  by  the  city. 

Leavitt  v.  Bell,  55  Neb.  57,  75  N. 
W.  524.  The  burden  of  showing  the 
validity  of  the  tax  lien  is  upon  the 
one  seeking  to  enforce  it.  Lane  v. 
James,  25  Vt.  481;  Howe  v.  Barto, 
12  Wash.  627.  A  provision  in  a 
city  charter  that  the  tax  deed 
should  be  prima  facie  evidence  of 
the  regularity  of  all  prior  proceed- 
ings is  not  objectionable  as  pre- 
scribing a  rule  of  evidence  for  the 
state  courts.  Phelps  r.  City  of  Ta- 
coma,  15  Wash.  367;  Whiton  v.  Rock 
County,  16  Wis.  44. 

i98Worthen  v.  Badgett,  32  Ark. 
496;  Shaw  v.  Lockett,  14  Colo.  App. 
413,  60  Pac.  363.  Where  a  tract  of 
land  is  partly  within  and  partly 
without  the  jurisdiction  of  a  tax- 
ing district,  that  part  only  within 
can  be  taxed,  and  in  case  of  non- 
payment of  the  tax  levied,  sold. 

Deason  v.  Dixon,  54  Miss.  585. 
The  land  attempted  to  be  sold  must 
be  within  the  jurisdiction  of  the 
taxing  district,  a  change  of  bound- 
aries will  result  in  the  loss  of  the 
right  of  a  municipal  corporation  to 
sell  lands  formerly  within  its 


768 


PUBLIC  REVENUES. 


§   334 


should  be  in  the  form  and  the  proceedings  leading  to  the  sale  per- 
formed in  the  manner  prescribed  by  the  statute.159  The  form  of 
the  list,  the  description  of  the  property,  must  be  accurate,200  and 
the  sale  must  be  had  at  the  time  and  place  fixed  by  law.201 


boundaries  but  by  the  change  placed 
outside  of  them. 

Lockey  v.  Walker,  12  Mont.  577. 
The  laws  authorizing  such  proceed- 
ings must  not  be  repugnant  to  con- 
stitutional provisions. 

Landis  v.  Borough  of  Sea  Isle 
City,  66  N.  J.  Law,  558,  49  Atl.  685. 
A  public  corporation  may  have  a 
choice  of  proceedings  for  the  col- 
lection of  delinquent  taxes. 

Harned  v.  City  of  Camden,  66  N. 
J.  Law,  520,  49  Atl.  1082;  City  of 
Philadelphia  v.  Philadelphia  &  R. 
R.  Co.,  1  Pa.  Super.  Ct.  236.  Land 
of  a  railroad  company  beyond  what 
is  necessary  for  the  enjoyment  and 
exercise  of  a  corporate  franchise  is 
subject  to  a  tax  lien  and  may  be 
sold  as  the  land  of  any  other  prop- 
erty owner. 

i9»  Scheurman  v.  City  of  Colum- 
bus, 106  Ga.  34,  following  Bacon  v. 
City  of  Savannah,  86  Ga.  301;  Mat- 
ter of  tax  sale  of  lot  No.  172,  42  Md. 
196.  A  notice  of  sale  which  is  not 
certain  either  as  to  time  or  place 
is  fatally  defective.  Nelson  v. 
Pierce,  6  N.  H.  194. 

aoopoillon  v.  Borough  of  Ruther- 
ford, 58  N.  J.  Law,  113;  Jordan  v. 
Hyatt,  3  Barb.  (N.  Y.)  275.  The  un- 
divided half  of  land  subject  to  a  tax 
cannot  be  sold  for  the  payment  of 
the  taxes  upon  all  the  land. 

Erschler  v.  Lennox,  11  App.  Div. 
511,  42  N.  Y.  Supp.  805.  "Without 
considering  the  question  whether 
the  tax  sale  made  by  the  common 
council  of  the  city  should  be  deem- 
ed invalid  by  reason  of  the  fact  of 
omission  of  the  assessors  to  state  in 
the  assessment  roll  the  quantit*- 


land  assessed,  we  are  of  the  opinion 
that  before  the  common  council  was 
authorized  to  sell  the  land  of  the 
defendant,  Lucy  Lennox,  in  conse- 
quence of  her  failure  to  pay  the  tax 
assessed  against  her,  they  were  com- 
pelled to  make  an  order  of  sale  con- 
taining a  particular  description  of 
the  premises.  The  statute  express- 
ly provides  that,  before  a  sale,  such 
order  containing  such  description 
shall  be  made.  It  will  not  be  doubt- 
ed that  the  description  to  conform 
to  the  statute  must  be  substantially 
correct.  The  description  covering 
the  lot  of  the  defendant  to  be  as- 
sessed and  another  larger  lot  which 
she  did  not  own,  and  describing  both 
as  the  premises  of  the  defendant 
Lennox,  was  not  the  particular  de- 
scription of  her  lot  required  by  the 
statute.  The  error  of  the  common 
council  of  the  city  in  the  descrip- 
tion of  the  lot  of  tne  defendant  Len- 
nox contained  in  the  order  cannot 
be  deemed  immaterial."  Citing 
Tallman  v.  White,  2  N.  Y.  66;  Dike 
v.  Lewis,  4  Denio  (N.  Y.)  237; 
Oakley  v.  Healey,  38  Hun  (N.  Y.) 
244;  In  re  New  York  Cent.  &  H.  R. 
R.  Co.,  90  N.  Y.  348;  Zink  v.  Mc- 
Manus,  121  N.  Y.  259;  and  May  v. 
Traphagen,  139  N.  Y.  478. 

Grace  v.  City  of  Bonham,  26  Tex. 
Civ.  App.  161,  63  S.  W.  158.  A  de- 
scription sufficient  to  identify  the 
land  and  which  does  not  mislead  the 
owner  is  not  defective.  Potter  v. 
Black,  15  Wash.  186. 

201  Montford  v.  Allen,  111  Ga.  18. 

An  officer  without  authority  cannot 

postpone  a  tax  sale.     Veit  v.  Graff, 

'    d.  253;  Nixon  v.  City  of  Biloxi. 


§/>  ^  r- 
000 


TAXATION. 


769 


Such  proceedings  are  in  the  nature  not  only  of  a  forfeiture  but 
a  judgment  and  all  of  the  rules  of  law  which  relate  to  and  affect 
the  entry  of  judgments  must  be  applied.  Laws  giving  these  rights 
are  construed  even  more  strictly  than  those  relating  to  judgments, 
since  a  judgment  is  the  result  of  a  proceeding  where  all  parties 
have  been  brought  within  the  jurisdiction  of  a  competent  court. 
Irregularities  and  informalities  will  not  be  considered  lightly  nor 
will  a  failure  to  do  that  which  the  law  requires  although  trivial 
in  its  nature  be  regarded  as  unessential  or  unimportant.202  Those 
provisions  in  statutes  or  ordinances  authorizing  the  seizure  and 
•sale  of  property  for  the  payment  of  taxes  permitting  a  redemp- 
tion by  the  owner  are  liberally  construed  in  his  favor.203 

§  335.    The  payment  of  taxes. 

The  levy,  collection  and  payment  of  taxes  is  a  political  and  gov- 
ernmental act  and  the  medium  of  payment  may  be  designated. 
Unless  special  provision  is  made  for  the  acceptance  of  certain 
evidences  of  indebtedness,  a  valid  tender  of  taxes  can  only  be 
made  by  an  offer  of  specie  or  legal  tender  as  established  by  the 
United  States.204  Tax  officials  cannot  be  compelled  to  accept  in 


76     Miss.     810;     Brown     v.     Sharp 
(Miss.)   31  So.  712. 

202Bannon  v.  Burnes,  39  Fed.  892. 
"And  while  the  courts  should  treat 
with  great  respect  the  enactments 
of  the  legislative  department  of  gov- 
ernment, yet  the  courts  which  stand 
as  the  last  resort  of  the  citizen,  and 
the  sworn  guardian  of  his  property 
rights,  cannot  fail  to  recognize  that 
there  are  some  things  which  even 
the  legislature  cannot  do.  It  cannot 
take  the  citizen's  private  property, 
even  for  public  use,  without  due 
process  of  law.  It  cannot  prescribe 
a  method  by,  and  the  conditions  on 
which,  property  may  be  sold  for 
taxes  and  by  the  same  act  declare 
that  when  sold,  the  deed  shall  be 
good,  although  the  prescribed  meth- 
od was  not  pursued  and  the  re- 
quired conditions  of  sale  were  not 
regarded;  especially  where  such 
conditions  are  precedent  facts  es- 

Abb.  Corp.— 49. 


sential  to  confer  jurisdiction  on  the 
body  or  person  undertaking  to  sell. 
*  *  *  The  city  charter  prescribes 
that  certain  facts  shall  exist  to  au- 
thorize the  city  collector  to  adver- 
tise and  sell,  as  has  already  been 
stated.  It  is  a  well-established  prin- 
ciple of  law  that  in  proceedings  in 
invitum  looking  to  the  seizure  and 
appropriation  of  private  property 
for  public  uses,  every  fact  which  in 
its  nature  is  jurisdictional  must  ex- 
ist before  jurisdiction  attaches  to 
the  tribunal  attempting  the  seizure 
and  appropriation." 

203  Crawford  v.  Liddle,   101   Iowa, 
148;    Merchants'  Realty  Co.  v.  City 
of  St.  Paul,  77  Minn.  343,  79  N.  W. 
1040;   Devine  v.  Franks  (N.  J.  Eq.) 
47  Atl.  228;  Goodman  v.  Sanger,  85 
Pa.  37;  City  of  San  Antonio  v.  Ber- 
ry, 92  Tex.  319. 

204  Dickson    v.    Gamble,    16    Fla. 
GST;   Richards  v.  Stogsdell,  21  Ind. 


770  PUBLIC  REVENUES.  §  335 

payment  of  taxes  coupons  cut  from  valid  state  or  municipal 
bonds.205  A  debt  due  and  owing  from  a  public  corporation  to 
an  individual  cannot  be  off-set  by  him  in  payment  of  a  portion 
of  his  taxes,  nor,208  under  a  constitutional  provision  requiring 
the  payment  of  taxes  in  legal  tender,  can  a  contract  be  made 
between  a  contractor  and  a  municipality  by  which  a  part  of 
the  contract  obligation  assumed  on  part  of  the  municipality  is  to 
be  paid  by  a  credit  on  account  of  taxes  levied  or  to  be  levied 
through  a  series  of  years  upon  property  of  the  contractor.207 

On  the  contrary,  however,  where  the  statutes  provide  that  state, 
city  or  county  warrants,  as  well  as  other  evidences  of  indebted- 
ness issued  by  a  corporation  to  whom  taxes  may  be  due  shall  be 
a  legal  tender  in  payment  of  such  taxes,  then  officials  cannot  re- 
fuse to  accept  such  obligations  when  tendered  them.208 

To  whom  and  when.  A  public  corporation  has  the  author- 
ity to  designate  officials  to  whom  taxes  shall  be  paid  or  certain 
officers  may  be  required  to  accept  all  taxes  paid  with  the  added 
duty  of  apportioning  these  in  the  manner  provided  by  law  be- 
tween the  various  funds  or  organizations  entitled  to  some  portion 
of  them.209  The  county  treasurer,  to  illustrate,  may  be  empow- 

74;  Staley  v.  Columbus  Tp.,  36  Mich,  by  action   against  the  organization 

38;   Kahl  v.  Love,  37  N.  J.  Law,  5;  receiving  such  taxes  not  by  manda- 

McLanahan  v.  City  of  Syracuse,  18  mus  against  the  officials   as  receiv- 

Hun    (N.  Y.)    259;   Wagner  v.   For-  ing     such     moneys.     McConnell     v. 

ter  (Tex.  Civ.  App.)  56  S.  W.  560.  Hamm,  16  Kan.  228;   Fremont,  E.  & 

205  Parsons  v.   Slaughter,   63  Fed.  M.   V.  R.  Co.  v.   Brown  County,   18 
876.  Neb.  516.     Upon  the  organization  of 

206  Trenholm    v.    City    Council    of  a  new  county  from  territory  former- 
Charleston,  3  S.  C.  347.  ly  embraced   in   another,   the   taxes 

207  Wagner    v.    Porter    (Tex.    Civ.  then   become   payable   to   the   treas- 
App.)  56  S.  W.  560.  urer  of  the  new  county.     Morse   v. 

208  Western  Town-Lot  Co.  v.  Lane,  Hitchcock     County,     19    Neb.     566; 
7  S.  D.  599,  65  N.  W.  17,  following  Bowyer  v.  City  of  Camden,  50  N.  J. 
Id.,  7  S.  D.  1,  62  N.  W.  982.  Law,  87,  11  Atl.  137;  Bridges  v.  Sul- 

209  Britten   v.    City   of    Clinton,    8  livan    County    Sup'rs,    27   Hun    (N. 
111.    App.   164;    People   v.    Suppiger,  Y.)   175;   Multnomah  County  Com'rs 
103  111.  434;  Peoria  &  P.  U.  R.  Co.  v.  v.  State,   1  Or.   358;    City  of  Salem 
People,   144    111.   458;    City    of   Gen-  v.  Marion  County,  25  Or.  449,  36  Pac. 
esee  v.  Latah  County,  4  Idaho,  141,  163;    Schuylkill  County  v.  Com.,  36 
36  Pac.  701;  Jefferson  School  Tp.  v.  Pa.    524.     The   taxing   district   thus 
School  Town  of  Worthington,  5  Ind.  collecting    tax    levies    to    be   appor- 
App.  586,  32  N.  E.  807.     In  case  of  tioned   between   other  districts   and 
an   improper  apportionment  of  tax-  funds    becomes    liable    to    such    for 
es   collected,   the   proper   remedy   is  their  quota. 


§  336 


TAXATION. 


771 


ered  to  receive  not  only  taxes  levied  for  county  purposes  but 
also  those  imposed  by  the  state  for  its  support  or  by  a  municipal 
organization  within  the  limits  of  the  county  the  treasurer  after- 
wards dividing  between  these  organizations  the  part  to  which 
they  are  respectively  entitled.210  The  time  of  payment  may  also 
be  fixed211  and  an  arrangement  made  which  will  authorize  the 
payment  of  taxes  in  installments  extending  over  a  series  of  years 
or  in  one,  two  or  three  installments  throughout  the  year  at  times 
most  convenient  and  designed  to  render  the  burden  of  the  tax- 
payer as  light  as  possible  by  dividing  the  payments  to  be  made. 
This  rule  is  especially  applicable  to  special  assessments.212 

§  336.    Their  refunding. 

A  tax  may  be  determined  as  invalid  after  its  payment.  If 
the  taxpayer  paid  it  under  protest  or  duress213  and  raised  the 
question  of  the  legality  of  the  tax  in  a  proceeding  within  the 


Com.  v.  City  of  Chester,  123  Pa. 
626;  Sheboygan  County  v.  City  of 
Sheboygan,  54  Wis.  415.  Unpaid 
special  assessments  for  street  im- 
provements are  included  within  the 
term  "unpaid  taxes"  as  used  in  Rev. 
Stat.  §  1114,  relating  to  settlements 
between  town  and  county  treasur- 
ers. 

210  Peoria  &  P.  U.  R.  Co.  v.  Peo- 
ple, 144  111.  458,  33  N.  E.  873. 

211  Rode  v.  Siebe,  119  Cal.  518,  39 
L.    R.    A.    342;    Town    of    Dixon    v. 
Mayes,    72    Cal.    166,    13    Pac.    471. 
Where  no  time  is  fixed  for  the  pay- 
ment   of    municipal    taxes,    such    a 
tax  cannot  become  delinquent  until 
a   date   is   determined.     Wheatly  v. 
City     of     Covington,     74     Ky.      (11 
Bush  )    18;    City  of  New  Orleans  v. 
Clark,    15    La.    Ann.    614;     City    of 
Rockland  v.  Rockland  Water  Co.,  82 
Me.    188;     O'Flinn    v.    Mclnnis,    80 
Miss.  125,  31  So.  584;  Eustis  v.  City 
of  Henrietta   (Tex.  Civ.  App.)   37  S. 
W.    632.      It  is   not   unlawful   for  a 
legislature   to   provide  that   munici- 
pal taxes   may  become  due  and  de- 


linquent at  a  different  time  from 
general  taxes. 

212  City  of  Brunswick  v.  Finney, 
54  Ga.  317;  Lightner  v.  City  of  Pe- 
oria, 150  111.  80;  English  v.  City  of 
Danville,  150  111.  92;  Latham  v.  Vil- 
lage of  Wilmette,  168  111.  153;  Gage 
v.  City  of  Chicago,  195  111.  490;  In- 
diana Bond  Co.  v.  Bruce,  13  Ind. 
App.  550,  41  N.  E.  958;  Talcott  v. 
Noel,  107  Iowa,  470;  In  re  One  Hun- 
dred and  Eighty-First  St.,  63  Hun, 
629,  17  N.  Y.  Supp.  917;  Ladd  v. 
Gambell,  35  Or.  393;  Stratton  v.  Ore- 
gon City,  35  Or.  409;  Mall  v.  City  of 
Portland,  35  Or.  89,  56  Pac.  654; 
Heath  v.  McCrea,  20  Wash.  342,  55 
Pac.  432.  An  owner  may,  however, 
if  he  desires  to,  pay  his  taxes  in  full 
at  one  time  and  not  avail  himself  of 
the  privilege  given  of  a  payment 
in  installments. 

sisHoke  v.  City  of  Atlanta,  107 
Ga.  416,  33  S.  E.  412.  A  payment 
made  to  prevent  a  levy  on  realty 
is  not  made  under  duress.  North 
Carolina  R.  Co.  v.  Alamance  Com'rs, 
77  N.  C.  4.  Where  a  part  of  the  tax 


772 


PUBLIC  REVENUES. 


time  required  by  law,214  there  is  then  a  liability  on  the  part  of  the 
corporation  for  the  refunding  of  such  taxes.215  The  right  to  a  re- 
fund may  also  exist  irrespective  of  a  payment  under  protest  in 
case  the  invalidity  of  the  tax  is  subsequently  determined.216  But 
this  right  of  the  taxpayer  may  be  lost,  after  the  lapse  of  a  certain 
prescribed  time,  through  his  failure  to  act.217  The  illegality  of 
a  tax  can  be  based  upon  any  of  the  many  grounds  that  may 
render  it  void,  either  because  of  its  being  an  excessive  levy,  the 
purpose  for  which  the  tax  levy  is  used,  irregular  or  defective  pro- 


paid  is  illegal  and  part  valid,  a  re- 
fund can  be  required  of  the  illegal 
portion.  Pell  v.  City  of  New  York, 
31  Misc.  664,  65  N.  Y.  Supp.  34.  A 
payment  made  after  a  threatened 
sale  of  property  held  an  involun- 
tary payment.  City  of  Galveston  v. 
Sydnor,  39  Tex.  236. 

214  City  of  Indianapolis  v.  Ritzing- 
er,  21  Ind.  App.  65,  56  N.  E.  141; 
Little  Rock  &  M.  R.  Co.  v.  Wil- 
liams, 101  Tenn.  146,  46  S.  W.  448; 
Raleigh  v.  Salt  Lake  City,  17  Utah, 
130. 

sis  Tippecanoe  County  Com'rs  v. 
Lucas,  93  U.  S.  108;  Montgomery  & 
W.  P.  R.  Co.  v.  Duer,  46  Ga.  272. 
In  an  action  brought  to  secure  a  re- 
fund of  taxes  paid,  the  facts  show- 
ing the  illegality  of  the  tax  should 
be  fully  set  forth. 

Grant  County  Com'rs  v.  Delaware 
County  Com'rs,  4  Blackf.  (Ind.) 
256;  Hemingway  v.  Inhabitants  of 
Machias,  33  Me.  445;  Price  v.  Lan- 
caster County,  18  Neb.  199.  A  mu- 
nicipal corporation  acting  as  a  gen- 
eral tax  collector  and  dividing  tax- 
es so  collected  among  the  different 
organizations  entitled  to  the  same 
is  not  liable  to  a  taxpayer  for  a  re- 
fund of  taxes  held  invalid  only  to 
the  extent  of  those  retained  by  it  for 
its  own  purposes. 

Cavis  v.  Robertson,  9  N.  H.  524; 
Sherman  v.  Trustees  of  Clifton 
Springs,  27  Hun  (N.  Y.)  390;  Phelps 


v.  City  of  Tacoma,  15  Wash.  367; 
State  v.  Whittlesey,  17  Wash.  447. 
A  law  requiring  the  refund  by  a 
municipality  of  void  taxes  held  val- 
id. Kellogg  v.  Winnebago  County 
Sup'rs,  42  Wis.  97. 

2ieCorbett  v.  Widber,  123  Cal. 
154;  Leonard  v.  City  of  Indianapo- 
lis, 9  Ind.  App.  262,  36  N.  E.  725; 
DePauw  Plate  Glass  Co.  v.  City  of 
Alexandria,  152  Ind.  443;  Deady  v. 
Village  of  Lyons,  39  App.  Div.  139, 
57  N.  Y.  Supp.  448;  Little  Rock  & 
M.  R.  Co.  v.  Williams,  101  Tenn. 
146;  Raleigh  v.  Salt  Lake  City,  17 
Utah,  130. 

217  Centre  Tp.  v.  Marion  County, 
70  Ind.  562.  The  syllabus  follows: 
"The  fund  in  the  hands  of  a  county 
treasurer  arising  from  a  tax  voted 
by  a  township  to  aid  in  the  con- 
struction of  a  railroad,  where  the 
railroad  company  has  forfeited  all 
right  to  the  same,  *  *  *  it  not 
having  been  diverted  into  the  town- 
ship funds,  belongs  to  the  township, 
unless  it  has  been  demanded  by  the 
taxpayers  of  the  township  within 
two  years  after  the  passage  of  the 
act  of  1872,  or  within  two  years  aft- 
er the  forfeiture  thereof  by  the  rail- 
road company;  and  such  demand 
being  matter  of  defense,  need  not  be 
negatived  in  the  complaint  in  an  ac- 
tion by  a  township,  against  a  coun- 
ty, to  recover  a  tax  voted  by  the 
township." 


§   336  SPECIAL   ASSESSMENTS.  773 

ceedings  in  the  levy  and  assessment  or  because  of  the  use  and 
character  of  the  property  against  which  the  tax  is  levied.218 

II.  SPECIAL  ASSESSMENTS. 

§  337.  Definition  and  explanation  of  the  term. 

338.  The  exercise  of  the  power  to  levy. 

339.  Limitations  upon  the  power. 

340.  Purpose  for  which  exercised. 

341.  Extent  of  exercise. 

342.  Discretionary   power   with   reference  to   locating  limits  of 

taxing  district. 

343.  Property  subject  to  local  assessments. 

344.  The  manner  of  determining  local  assessments;    conversely, 

benefits. 

345.  According  to  frontage. 

346.  Assessment  based  upon  location. 

347.  Levy  based  upon  ascertained  benefits. 

348.  What  considered  as  benefits. 

349.  Levy  based  upon  area  or  comparative  value  of  property. 

350.  Individual  liability. 

351.  Estoppel  of  taxpayer. 

352.  Place  of  assessment. 

353.  Acquiring  jurisdiction;   preliminary  proceedings. 

354.  Same  subject. 

355.  Execution  of  a  contract.  / 

356.  Preliminary  investigation  or  estimates. 

357.  Same  subject  continued. 

358.  Jurisdiction  acquired  through  the  introduction  and  passage 

of  an  ordinance. 

359.  Resolutions. 

360.  Petition  by  property  owners. 

361.  Declaration  of  necessity. 

362.  Construction  of  the  improvement. 

363.  Notice  to  property  owners. 

364.  When  given. 

218  City  of  Auburn  v.  Union  Wa-  Pick.)    75;    Turnbull  v.  Alpena  Tp., 

ter    Power   Co.,    90    Me.    71,    37   Atl.  74  Mich.  621,  42  N.  W.  114.     An  ir- 

335.      The   facts    as   to   the    insufn-  regularity    not    prejudicial    to    the 

ciency  of  the  call   of  a  meeting  of  person    taxed    is    not    a    sufficient 

the  city  council  at  which  a  tax  was  ground  for  declaring  the  tax  illegal, 

levied,   examined  and  found  insuffi-  City  of  Aurora  v.  Lindsay,  146  Mo. 

cient  to  render  a  tax  illegal.     Stick-  509;    State   v.    Montgomery    County 

ney  v.  City  of  Bangor,  30  Me.  404;  Com'rs,  31  Ohio  St.  271;   Wright  v. 

Trim  v.   Inhabitants  of  Charleston,  City    of    San    Antonio    (Tex.    Civ. 

41    Me.     504;     Williams    v.     School  App.)  50  S,  W.  406. 
,Dist.    in   Lunenburg,    38    Mass.    (21 


774  PUBLIC  REVENUES.  §   337 

365.  How  given  and  to  whom. 

366.  Result  of  a  failure  to  give  notice. 

367.  Variance  of  proceedings  from  notice  given. 

368.  Benefits  the  basis  of  assessment. 

369.  Presumption  of  validity. 

370.  Estoppel  of  public  corporations. 

371.  Form  of  reports,  assessment  rolls  and  other  necessary  pa- 

pers. 

372.  Opportunity  for  investigation  and  examination. 

373.  The  right  of  correction  and  review. 

374.  Parties  to  appeal  proceedings. 

375.  Review  by  the  courts. 

376.  Review  by  other  bodies. 

377.  The  right  of  appeal  or  review;  manner  and  time  of  exercise. 

378.  Conclusiveness  of  decision. 

379.  Review  and  correction. 

380.  What  questions  raised  on  appeal  and  review. 

381.  Estoppel  of  property  owner. 

382.  The  same  subject;  propositions  negatively  stated. 

383.  Right  of  appeal  as  based  on  omission  to  tax  other  property. 

384.  Excessive  assessment. 

385.  Judicial  confirmation  of  an  assessment  roll. 

386.  Reassessment  or  supplemental  assessment. 

387.  Curative  legislation. 

388.  Collateral  attack. 

389.  Lien  and  priority  of  special  assessments. 

390.  The  same  subject  continued. 

391.  Collection  of  special  assessments. 

392.  Manner  and  amount  of  collection. 

393.  Same  subject;   summary  proceedings. 

394.  Time  of  collection. 

395.  The  rights  of  a  property  owner. 

396.  Personal  liability. 

397.  Recovery  of  invalid  assessments. 

§  337.    Definition  and  explanation  of  the  term. 

The  word  taxation  in  its  proper  sense  is  a  generic  one  and 
designates  that  power  governmental  and  political  in  its  nature 
which  enables  a  government  to  levy  and  collect  enforced  contri- 
butions for  its  support.  Ordinarily,  the  term  is  understood  as 
referring  to  general  taxes  levied  upon  real  and  personal  proper- 
ty, the  moneys  derived  used  to  maintain  and  support  the  public 
and  general  expenses  of  the  government.  In  the  proper  use  of 
the  word  it  includes,  however,  that  species  of  taxation  termed 
"Local  or  special  assessments."  The  authorities  are  agreed  that 


g  337  SPECIAL  ASSESSMENTS.  775 

these  are  valid  because  imposed  through  the  exercise  of  the  tax- 
ing power.219  There  exists,  however,  a  clear,  well  defined  and 
well  established  difference  in  the  basis  for  the  levy  of  the  two. 
A  levy  of  taxes,  as  the  word  is  commonly  used,  is  based  upon  a 
governmental  necessity  irrespective  of  the  immediate  or  personal 
return  or  benefit  to  the  individual  paying  the  tax.  So  long  as 
the  taxes  levied  are  uniform  and  equal  and  conform  to  other 
constitutional  restrictions  or  limitations  in  their  levy  and  collec- 
tion, they  will  be  considered  legal.220  The  idea  of  uniformity 
and  equality  being  based  and  depending  upon  the  amount  of 
taxes  levied  as  proportioned  to  the  actual  value  of  the  property 
upon  which  levied ;  such  valuation  of  the  property  being  de- 
termined by  its  character  and  use.  The  idea  of  benefits  received 
does  not  in  theory  enter  into  a  determination  of  the  legality  of 
the  tax.221  A  special  or  local  assessment,  however,  involves  the 
idea  of  an  immediate  and  special  benefit  as  a  basis  for  its  levy, 
and  the  doctrine  is  well  established  that  there  can  be  a  levy  or 
imposition  of  special  assessments  or  taxes  only  in  proportion  to 
the  benefits  specially,  actually  and  physically  received  by  the 
property  taxed  as  will  be  seen  upon  an  examination  of  the  au- 
thorities considered  in  succeeding  sections.222  The  determina- 
tion of  the  extent  of  benefits  received  and  the  manner  of  ascer- 
taining them  whether  based  upon  frontage,  propinquity  or  the 
reception  of  a  special  benefit,  are  questions  of  legislative  expe- 
diency. The  legislative  body  of  each  state  possesses  the  right  to 
determine  these  questions,  subject  only  to  pertinent  restrictions 
or  provisions  found  in  organic  law.223  This  principle  is  firmly 

219  Board       of      Councilmen         f    of  Milford,   o-    Me.   315.     See,   also, 
Frankfort    v.    Scott,    19    Ky.    L.    R.    §§  300  et  seq.,  supra. 

1068,    42    S.   W.   104;    City  of   Rich-  222  See    authorities    cited    in    the 

mond   v.  Gibson,  20  Ky.   L.  R.  358,  next    following   notes:      Zehnder   v. 

46  S.  W.  702;  Hughes  v.  Carl,  21  Ky.  Barber  Asphalt    Pav.    Co..    106    Fed. 
L.   R.  6,   50   S.  W.  852;    Billiard   v.  103;   Kansas  City,  P.  &  G.  R.  Co.  r. 
City    of    Asheville,    118    N.    C.    845,  Water-works    Imp.    Dist.    No.    1,    68 
24   S.   E.   738.  Ark.  376,   59  S.  W.  248;    Thomas  v. 

220  Emery    v.    San    Francisco    Gas  Gain,  35  Mich.  155;   Richmond  &  A. 
Co.,    28   Cal.    345;    Hines  v.    City  of  R.    Co.    v.    Lynchburg,   81    Va.    473; 
Leavenworth,    3    Kan.    186;     In    re  Soule   v.   City    of    Seattle.    6    Wash. 
City    of  New   York,    11    Johns.    (N.  315;   Germond  v.  City  of  Tacoma,  6 
Y.)    77.  Wash.    365;    Yates    v.    City    of    Mil- 

221  Hagar   v.   Yolo   County  Sup'rs,  waukee,  92  Wis.  352,  66  N.  W.  248. 

47  Cal.  222;   Perkins  v.  Inhabitants        223  French  v.  Barber  Asphalt  Pav. 


776 


PUBLIC  REVENUES. 


§  337 


Co.,  181  U.  S.  324.  This  case,  both 
in  the  briefs  filed  by  the  counsel 
for  the  respective  parties  and  the 
opinion  itself,  contains  an  exhaust- 
ive citation  and  analysis  of  the  au- 
thorities upon  the  question  sug- 
gested in  the  text  as  well  as  others 
relative  to  an  authorization  by  the 
legislature  for  the  apportionment 
of  the  entire  cost  of  a  street  pave- 
ment upon  abutting  lots  according 
to  their  frontage  and  without  any 
preliminary  hearing  as  to  benefits. 
In  view  of  the  fact  that  the  reports 
of  the  supreme  court  of  the  United 
States  are  in  the  hands  of  every- 
one interested  in  this  question, 
these  authorities  will  not  be  repeat- 
ed here.  In  its  opinion  in  this  case 
by  Mr.  Justice  Shiras  the  court  said 
in  part:  "In  Mattingly  T.  District 
of  Columbia,  97  U.  S.  687,  692,  24 
Law.  Ed.  1098,  1100,  there  was  call- 
ed in  question  the  validity  of  the 
act  of  Congress  June  19,  1878  (20 
Stat.  166,  c.  309),  entitled  'An  act 
tp  provide  for  the  revision  and  cor- 
rection of  assessments  for  special 
improvements  in  the  District  of 
Columbia  and  for  other  purposes,' 
and  it  was  said  by  this  court, 
through  Mr.  Justice  Strong:  'It 
may  be  that  the  burden  laid  upon 
the  property  of  the  complainants 
is  onerous.  Special  assessments 
for  special  road  or  street  improve- 
ments very  often  are  oppressive. 
But  that  the  legislative  power  may 
authorize  them,  and  may  direct 
them  to  be  made  in  proportion  to 
the  frontage,  area,  or  market  value 
of  the  adjoining  property,  at  its  dis- 
cretion, is,  under  the  decisions,  no 
longer  an  open  question.' 

"In  Kelly  v.  City  of  Pittsburgh, 
104  U.  S.  78,  26  Law.  Ed.  658,  it 
was  urged  that  land  which  the  own- 


er had  not  laid  off  into  town  lots, 
but  occupied  for  agricultural  pur- 
poses, and  through  which  no  streets 
are  run  or  used,  cannot  be,  even  by 
the  legislature,  subjected  to  the 
taxes  of  a  city, — the  water  tax,  the 
gas  tax,  the  street  tax,  and  others 
of  similar  character.  The  reason 
for  this  was  said  to  be  that  such 
taxes  are  for  the  benefit  of  those 
in  a  city  who  own  property  within 
the  limits  of  such  improvements, 
and  who  use  or  might  use  them  if 
they  choose,  while  he  reaps  no  such 
benefit.  *  *  * 

"The  tax  in  question  was  assessed 
and  the  proper  officers  were  pro- 
ceeding to  collect  it  in  this  way. 
The  distinct  ground  on  which  this 
provision  of  the  Constitution  of  the 
United  States  is  invoked  is  that  as 
the  land  in  question  is,  and  always 
has  been,  used  as  farm  land,  for  ag- 
ricultural purposes  only,  subjecting 
it  to  taxation  for  ordinary  city  pur- 
poses deprives  the  plaintiff  in  error 
of  his  property  without  due  process 
of  law.  It  is  alleged,  and  probably 
with  truth,  that  the  estimate  of  the 
value  of  the  land  for  taxation  is 
very  greatly  in  excess  of  its  true 
value.  Whether  this  be  true  or  not 
we  cannot  here  inquire.  We  have 
so  often  decided  that  we  cannot  re- 
view and  correct  the  errors  and 
mistakes  of  the  state  tribunals  on 
that  subject  that  it  is  only  neces- 
sary to  refer  to  those  decisions, 
without  a  restatement  of  the  argu- 
ment on  which  they  rest. 

"In  Spencer  v.  Merchant,  125  U. 
S.  345,  a  judgment  of  the  court  of 
appeals  of  the  state  of  New  York, 
upholding  the  validity  of  an  assess- 
ment upon  lands  to  cover  the  ex- 
pense of  a  local  improvement,  was 
brought  to  this  court  for  review 


§  337 


SPECIAL  ASSESSMENTS. 


777 


established  and  the  further  one  that  a  special  assessment  to  be 
valid  must  not  be  levied  in  substantial  excess  of  the  benefits  con- 


tipon  the  allegation  that  the  state 
statute  was  unconstitutional.  In 
the  opinion  of  this  court,  delivered 
by  Mr.  Justice  Gray,  the  following 
extract  was  given  from  the  opinion 
of  the  court  of  appeals: 

'The  act  of  1881  determines  abso- 
lutely and  conclusively  the  amount 
of  the  tax  to  be  raised,  and  the 
property  to  be  assessed,  and  upon 
which  is  to  be  apportioned.  Each 
of  these  things  was  in  the  power  of 
the  legislature,  whose  action  can- 
not be  reviewed  in  the  courts  upon 
the  ground  that  it  acted  unjustly 
or  without  appropriate  and  adequate 
reason.  The  legislature  may  com- 
mit the  ascertainment  of  the  sum 
to  be  raised  and  of  the  benefited  dis- 
trict to  commissioners;  but  it  is  not 
bound  to  do  so,  and  may  settle  both 
questions  for  itself;  and  when  it 
does  so,  its  action  is  necessarily  con- 
clusive and  beyond  review. 

'In  the  absence  of  any  more  spe- 
cific constitutional  restriction  than 
the  general  prohibition  against  tak- 
ing property  without  due  process  of 
law,  the  legislature  of  the  state  hav- 
ing the  power  to  fix  the  sum  nec- 
essary to  be  levied  for  the  expense 
of  a  public  improvement,  and  to 
order  it  to  be  assessed,  either,  like 
other  taxes,  upon  property  general- 
ly, or  only  upon  the  lands  benefited 
by  the  improvement,  is  authorized 
to  determine  both  the  amount  of 
the  whole  tax  and  the  class  of  lands 
which  will  receive  the  benefit  and 
should,  therefore,  bear  the  burden, 
although  it  may,  if  it  sees  fit,  com- 
mit the  ascertainment  of  either  or 
both  of  these  facts  to  the  judgment 
of  commissioners.  When  the  deter- 
mination of  the  lands  to  be  bene- 


fited is  entrusted  to  commissioners, 
the  owners  may  be  entitled  to  no- 
tice and  hearing  upon  the  question 
whether  their  lands  are  benefited 
and  how  much.  But  the  legislature 
has  the  power  to  determine  by  the 
statute  imposing  the  tax,  what 
lands  which  might  be  benefited  by 
the  improvement  are  in  fact  bene- 
fited; and  if  it  does  so,  its  deter- 
mination is  conclusive  upon  the 
owners  and  the  courts,  and  the  own- 
ers have  no  right  to  be  heard  upon 
the  question  whether  their  lands  are 
benefited  or  not,  but  only  upon  the 
validity  of  the  assessment  and  its 
apportionment  among  the  different 
parcels  of  the  class  which  the  leg- 
islature has  conclusively  determined 
to  be  benefited.  In  determining 
what  lands  are  benefited  by  the  im- 
provement, the  legislature  may 
avail  itself  of  such  information  as 
it  deems  sufficient,  either  through 
investigations  by  its  committees  or 
by  adopting  as  its  own  the  esti- 
mates or  conclusions  of  others, 
whether  those  estimates  or  conclu- 
sions previously  had  or  had  not  any 
legal  sanction.'  *  *  * 

"This  array  of  authority  was  con- 
fronted, in  the  courts  below,  with 
the  decision  of  this  court  in  the 
case  of  Norwood  v.  Baker,  172  U.  S. 
269,  which  was  claimed  to  overrule 
our  previous  cases,  and  to  establish 
the  principle  that  the  cost  of  a  local 
improvement  cannot  be  assessed 
against  abutting  property  according 
to  frontage,  unless  the  law  under 
which  the  improvement  is  made  pro- 
vides for  a  preliminary  hearing  as 
to  the  benefits  to  be  derived  by  the 
property  to  be  assessed. 

"But  we  agree  with  the  Supreme 


778                                            PUBLIC  REVENUES.  §   337 

ferred  by  the  local  improvement  for  the  making  of  which  the 
tax  is  levied.-2*  "Where  the  legislature  fixes  a  liability  for  local 

court   of  Missouri  in  its  view  that  United  States,  courts  should  declare 

such  is  not  the  necessary  legal  im-  them  void. 

port  of  the  decision  in  Norwood  v.  Kelly  v.  Luning,  76  Cal.  309,  18 
Baker,  172  U.  S.  269.  That  was  a  Pac.  335.  A  legislature  has  no 
case  where,  by  a  village  ordinance  right,  however,  after  the  commence- 
apparently  aimed  at  a  single  person  ment  of  work  on  a  local  improve- 
a  portion  of  whose  property  was  ment  to  change  the  method  of  raak- 
condemned  for  a  street,  the  entire  ing  assessments  to  pay  its  cost  im- 
cost  of  opening  the  street,  including  posing  a  liability  under  the  new 
not  only  the  full  amount  paid  for  method  on  property  which  did  not 
the  strip  condemned,  but  the  cost  exist  at  the  time  the  work  was  com- 
and  expenses  of  the  condemnation  menced. 

proceedings,  was  thrown  upon  the  English  v.  City  of  Wilmington,  2 
abutting  property  of  the  person  Marv.  (Del.)  63,  37  Atl.  158;  Ba- 
whose  land  was  condemned.  This  ap-  con  v.  City  of  Savannah,  86  Ga. 
peared,  both  to  the  court  below  and  301;  Murphy  v.  People,  120  111.  234, 
a  majority  of  the  judges  of  this  court,  11  N.  E.  202;  City  of  Peoria  v.  Kid- 
to  be  an  abuse  of  the  law,  an  act  der,  26  111.  351;  Job  v.  City  of  Al- 
of  confiscation,  and  not  a  valid  ex-  ton,  189  111.  256;  Ft.  Dodge  Elec. 
ercise  of  the  taxing  power.  Light  &  Power  Co.  v.  City  of  Ft. 

"That  this  decision  did  not  go  to  Dodge,  115  Iowa,  568,  89  N.  W.  7; 
the  extent  claimed  by  the  plaintiff  Brooks  v.  City  of  Baltimore,  48  Md. 
in  error  in  this  case  is  evident,  be-  265;  Nickerson  v.  City  of  Boston, 
cause  in  the  opinion  of  the  majority  131  Mass.  306;  Inhabitants  of  Leo- 
it  is  expressly  said  that  the  decision  minster  v.  Conant,  139  Mass.  384; 
was  not  inconsistent  with  our  de-  Carpenter  v.  City  of  St.  Paul,  23 
cisions  in  Parsons  v.  District  of  Co-  Minn.  232;  City  of  St.  Joseph  v. 
lumbia,  170  U.  S.  45,  and  in  Spencer  Anthony,  30  Mo.  537;  State  v.  Dodge 
v.  Merchant,  125  U.  S.  345,  357."  County  Com'rs,  8  Neb.  124;  Hoetzel 

Town  of  Tonawanda  v.  Lyon,  181  v.  East  Orange,  50   N.  J.  Law,  354, 

U.   S.  389;    Cass  Farm   Co.   v.   City  12  Atl.   911;    Wilson  v.   Inhabitants 

of  Detroit,  181  U.   S.   396,  affirming  of   Trenton,    55   N.   J.  Law,   220,    26 

124  Mich.   433,   83  N.   W.   108;    City  Atl.    83;    J.   &  A.    McKechnie  Brew- 

of  Detroit  v.  Parker,  181  U.  S.  399,  ing  Co.  v.  Trustees  of  Canandaigua, 

reversing  Parker  v.  City  of  Detroit,  162  N.  Y.  631,  57  N.  E.  1113,  affirm- 

103  Fed.    357;    Goodrich  v.    City   of  ing    15    App.    Div.    139,    44    N.    Y. 

Detroit,  184  U.  S.  432.     In  White  v.  Supp.  317;   People  v.  Pitt,  169  N.  Y. 

City    of    Tacoma,    109    Fed.    32,    it  521,  58  L.  R.  A.  372. 

is  held  that  where  local  assessments  Webster  v.  City  of  Fargo,  9  N.  D. 

made  in  accordance  with  the  front-  208,   56  L.    R.   A.   156.     The   benefit 

foot  rule   practically   confiscate   the  received  by  the  making  of  a   locaT 

property  against  which  they  are  di-  improvement     is     not     necessarily 

rected  contrary  to  the  14th  amend-  measured  by  its  increase  in  market- 

ment    of    the    Constitution    of    the  able  value  therefrom. 


§337 


SPECIAL   ASSESSMENTS. 


779 


assessments  on  abutting  property,  it  will  be  presumed  it  has  de- 
termined that  the  cost  of  the  local  improvement  will  not  exceed 


Rolph  v.  City  of  Fargo,  7  N.  D. 
640;  Hill  v.  Higdon,  5  Ohio  St.  243. 
It  is  competent  for  the  legislature 
to  authorize  municipal  corporations 
to  levy  special  assessments  for  lo- 
cal improvements  upon  real  estate 
peculiarly  and  specially  benefited  and 
in  proportion  to  such  benefit. 

Northern  Indiana  R.  Co.  v.  Con- 
nelly, 10  Ohio  St.  159;  Maloy  v. 
Marietta,  11  Ohio  St.  636;  Bonsall 
v.  Town  of  Lebanon,  19  Ohio,  413; 
Cleveland  v.  Tripp,  13  R.  I.  50; 
Johnson  v.  City  of  Milwaukee,  40 
Wis.  315. 

224  Norwood  v.  Baker,  172  U.  S. 
269.  In  its  opinion  in  this  case  the 
court  say:  "It  is  one  thing  for  the 
legislature  to  prescribe  it  as  a  gen- 
eral rule  that  property  abutting  on 
a  street  opened  by  the  public  shall 
be  deemed  to  have  been  specially 
benefited  by  such  improvement,  and 
therefore  should  specially  contribute 
to  the  cost  incurred  by  the  public. 
It  is  quite  a  different  thing  to  lay 
it  down  as  an  absolute  rule  that 
such  property,  whether  it  is  in  fact 
benefited  or  not  by  opening  of  the 
street,  may  be  assessed  by  the  front 
foot  for  a  fixed  sum  representing 
the  whole  cost  of  the  improvement, 
and  without  any  right  in  the  prop- 
erty owner  to  show,  when  an  assess- 
ment of  that  kind  is  made  or  is 
about  to  be  made,  that  the  sum  so 
fixed  is  in  excess  of  the  benefits  re- 
ceived. In  our  judgment,  the  exac- 
tion from  the  owner  of  private 
property  of  the  cost  of  a  public  im- 
provement in  substantial  excess  of 
the  special  benefits  accruing  to  him 
is,  to  the  extent  of  such  excess,  a 
taking,  under  the  guise  of  taxation, 


of  private  property  for  public  use 
without  compensation.  We  say 
'substantial  excess,'  because  exact 
equality  of  taxation  is  not  always  at- 
tainable, and  for  that  reason  ine  ex- 
cess of  cost  over  special  benefits,  un- 
less it  be  of  a  material  character, 
ought  not  to  be  regarded  by  a  court 
of  equity  when  its  aid  is  invoked 
to  restrain  the  enforcement  of  a 
special  assessment."  Further  in  the 
same  case  the  court  also  said:  "The 
decree  does  not  prevent  the  village, 
if  it  has  or  obtains  power  to  that 
end,  from  proceeding  to  make  an 
assessment  in  conformity  with  the 
view  indicated  in  this  opinion; 
namely:  That  while  abutting  prop- 
erty may  be  specially  assessed  on 
account  of  the  expense  attending 
the  opening  of  a  public  street  in 
front  of  it,  such  assessment  must  be 
measured  or  limited  by  the  special 
benefits  accruing  to  it,  that  is,  by 
benefits  that  are  not  shared  by  the 
general  public;  and  that  taxation  of 
the  abutting  property  for  any  sub- 
stantial excess  of  such  expense  over 
special  benefits  will,  to  the  extent  of 
such  excess,  be  a  taking  of  private 
property  for  public  use  without  com- 
pensation." See,  also,  the  authori- 
ties cited  and  discussed  in  this  case 
as  well  as  in  the  case  of  French  v. 
Barber  Asphalt  Pav.  Co.,  181  U.  S. 
324,  including  dissenting  opinion. 

Loeb  v.  Columbia  Tp.,  91  Fed.  37; 
Fay  v.  City  of  Springfield,  94  Fed. 
409;  Charles  v.  City  of  Marion,  98 
Fed.  166;  Cowley  v.  City  of  Spo- 
kane, 99  Fed.  840;  White  v.  City  of 
Tacoma,  109  Fed.  32. 

Davidson  v.  Wight,  16  App.  D.  C. 
371.  An  act  which  provides  arbi- 


780 


PUBLIC  REVENUES. 


337 


trarily  a  minimum  assessment  with- 
out considering  the  question  of  spe- 
cial benefits  is  unconstitutional  and 
void.  The  assessment  cannot  ex- 
ceed the  special  benefit  which  has 
accrued  to  it  from  the  public  im- 
provement adjacent  to  it.  Kelly  v. 
Chadwick,  104  La.  719,  29  So.  295; 
City  of  Atlanta  v.  Hamlein,  96  Ga. 
381.  A  special  assessment  to  the 
extent  of  $721  upon  a  lot  valued  at 
the  highest  estimate  at  $260  held 
prima  facie  invalid. 

Bedard  v.  Hall,  44  111.  91;  Gree- 
ley  v.  People,  60  111.  19;  Newman  v. 
City  of  Chicago,  153  111.  469;  Byram 
v.  Marion  County  Com'rs,  145  Ind. 
240,  44  N.  E.  357,  33  L.  R.  A.  476; 
Adams  v.  City  of  Shelbyville,  154 
Ind.  467,  49  L.  R.  A.  797;  McKee  v. 
Town  of  Pendleton,  154  Ind.  652; 
Wray  v.  Fry,  158  Ind.  92,  62  N.  E. 
1004. 

Allen  v.  City  of  Davenport,  107 
Iowa,  90,  77  N.  W.  532.  The  court 
held  in  this  case  that  the  front- 
foot  rule  applied  although  the  local 
assessment  exceeded  the  benefits  re- 
ceived from  the  construction  of  the 
local  improvement.  Keith  v.  City 
of  Boston,  120  Mass.  108;  City  of 
Boston  v.  Boston  &  A.  R.  Co.,  170 
Mass.  95. 

Sears  v.  City  of  Boston,  173  Mass. 
71,  43  L.  R.  A.  834.  The  special  as- 
sessment in  this  case  was  levied  to 
meet  the  coct  of  watering  streets 
and  the  court  said:  "It  is  now  es- 
tablished by  the  highest  judicial  au- 
thority that  such  assessments  can- 
not be  so  laid  upon  any  estate  as  to 
be  in  substantial  excess  of  the  ben- 
efit received.  The  case  of  Norwood 
v.  Baker,  172  U.  S.  269,  43  Law. 
Ed.  443,  19  Sup.  Ct.  187,  contains  an 
elaborate  discussion  of  the  subject, 
•with  a  citation  of  authorities  from 
many  of  the  states,  and  holds  that  a 


local  assessment  for  an  amount  in 
substantial  excess  of  the  benefit  re- 
ceived is  in  violation  of  the  14th 
Amendment  to  the  Constitution  of 
the  United  States,  in  as  much  as  it 
would  deprive  one  of  his  property 
without  compensation,  and  so  with- 
out due  process  of  law.  The  au- 
thority of  this  case  is  controlling  in 
all  state  courts,  and  if  it  were  not, 
it  is  in  accordance  with  sound  prin- 
ciples, and  with  the  great  weight 
of  authority  in  other  courts.  The 
principles  which  have  often  been 
stated  by  this  court  lead  to  the 
same  result.  City  of  Boston  v.  Bos- 
ton &  A.  R.  Co.,  170  Mass.  95,  101, 
49  N.  E.  95,  and  cases  cited."  In 
the  case  of  Sears  v.  City  of  Boston, 
173  Mass.  71,  43  L.  R.  A.  834;  Sears 
v.  Street  Com'rs  of  Boston,  173 
Mass.  350,  Mr.  Justice  Knowlton 
said:  "If  we  treat  the  determina- 
tion of  these  charges  as  a  local  and 
special  assessment  upon  particular 
estates,  we  have  to  consider  the  prin- 
ciples on  which  such  taxation  is 
founded.  It  is  well  established  that 
taxation  of  this  kind  is  permissible 
under  the  Constitution  of  this  Com- 
monwealth and  under  the  Constitu- 
tion of  the  United  States,  only  when 
founded  upon  special  and  peculiar 
benefits  to  the  property  from  the  ex- 
penditure on  account  of  which  the 
tax  is  laid,  and  then  only  to  an 
amount  not  exceeding  such  special 
and  peculiar  benefits.  *  *  *  The 
fact  that  the  charges  to  be  deter- 
mined are  for  the  construction, 
maintenance,  and  operation  of  the 
sewerage  works  of  the  whole  city, 
gives  some  force  to  the  possibility 
of  a  construction  which  includes  all 
benefits;  but  whether  this  construc- 
tion should  be  adopted  or  not,  the 
charges  may  be  determined  on  any 
grounds  which  the  street  commis- 


g  337 


SPECIAL  ASSESSMENTS. 


781 


the  benefits.225    Under  any  method  if  there  is  an  excess  of  cost 
which  may  be  charged  against  property  liable  over  the  benefits 


sioners  deem  just  and  proper,  and 
may  not  be  founded  in  any  great  de- 
gree, if  at  all,  upon  special  and  pe- 
culiar benefits,  and  may  in  any  par- 
ticular case  largely  exceed  such  ben- 
efits. This  fact  in  itself  is  enough 
to  bring  the  statute  within  the  pro- 
hibition of  the  Constitution,  inas- 
much as  it  purports  to  authorize  a 
taking  of  property  to  pay  a  charge 
which  is  not  founded  on  a  special 
benefit  or  equivalent  received  by  the 
estate  or  its  owner.  Such  a  taking 
would  be  without  due  process  of 
law." 

Dexter  v.  City  of  Boston,  176 
Mass.  247.  The  court  here  said: 
"It  is  now  settled  law  in  this  court 
as  it  is  in  the  Supreme  court  of  the 
United  States  and  in  many  other 
courts  that  after  the  construction 
of  a  public  improvement,  a  local 
assessment  for  the  cost  of  it  cannot 
be  laid  upon  real  estate  in  substan- 
tial excess  of  the  benefit  received 
by  the  property.  Such  assessments 
must  be  founded  on  the  benefits  and 
be  proportional  to  the  benefits." 

Motz  v.  City  of  Detroit,  18  Mich. 
495;  Thomas  v.  Gain,  35  Mich.  155; 
Rogers  v.  City  of  St.  Paul,  22  Minn. 
494.  "The  principle  of  local  assess- 
ments is  that  the  special  benefits 
which  will  accrue  to  a  property 
owner  from  a  proposed  local  im- 
provement will  be,  at  least,  equal  to 
the  tax  assessed  upon  his  property 
on  account  of  such  improvement." 
The  court  also  held  in  this  case  that 
"taxation  exceeding  special  bene- 
fits" would,  therefore,  be  invalid. 

State  v.  Robert  P.  Lewis  Co.,  82 
Minn.  390,  86  N.  W.  611,  53  L.  R.  A. 
421.  Sp.  Laws  Minn.  1885,  c.  110. 
§§  26,  27,  is  constitutional  not  tak- 


ing property  without  due  process  of 
law  and  without  just  compensation. 
Reversing  82  Minn.  390,  85  N.  W. 
207.  This  act,  the  City  charter  of 
St.  Paul,  provides  for  an  assess- 
ment of  ten  cents  per  lineal  foot 
of  frontage  against  all  lots  in  front 
of  which  water  pipes  are  laid. 

Simpson  v.  Kansas  City,  46  Kan. 
638,  26  Pac.  721.  The  cost  of  the 
improvement  as  a  whole  should  be 
considered  and  th/e  proportionate 
part  according  to  the  measure 
adopted  assessed  upon  property  sub- 
ject to  the  assessment  for  the  pay- 
ment of  its  construction.  It  is  im- 
proper to  assess  against  abutting 
property  the  cost  of  the  construction 
of  the  improvement  for  that  par- 
ticular part  in  front  of  such  abut- 
ting property. 

New  Brunswick  Rubber  Co.  v. 
New  Brunswick  Sewer  Com'rs,  38 
N.  J.  Law,  190;  People  v.  City  of 
Brooklyn,  23  Barb.  (N.  Y.)  166; 
Dyker  Meadow  Land  &  Imp.  Co.  v. 
Cook,  3  App.  Div.  164,  38  N.  Y.  Supp. 
222.  The  legislature  has  the  power 
to  exempt  property  from  the  pay- 
ment not  only  of  general  taxes  but 
also  of  special  assessments.  Steb- 
bins  v.  Kay,  51  Hun  (N.  Y.)  589; 
Walsh  v.  Barren,  61  Ohio  St.  15; 
City  of  Dayton  v.  Bauman,  66  Ohio 
St.  379,  64  N.  E.  433;  Hutcheson  v. 
Storrie,  92  Tex.  688. 

225  Chicago  &  A.  R.  Co.  v.  City  of 
Joliet,  153  111.  649.  This  case,  as 
well  as  the  one  mentioned  above, 
supra,  held  that  under  lawful  au- 
thority, the  action  of  a  city  council 
levying  a  special  tax  on  property  is 
conclusive  that  it  has  been  benefited 
to  the  extent  of  the  assessment. 
Davis  v.  City  of  Litchfield,  155  111. 


782 


PUBLIC  REVENUES. 


§   337 


received,  such  excess  must  be  provided  for  from  the  general  cor- 
porate revenues,226  and  it  is  also  within  the  province  of  legis- 
lative discretion  to  provide  that  an  arbitrary  proportion  of  the 
cost  shall  be  borne  by  the  general  revenues  and  a  part  of  it  by 
private  property  liable  in  the  manner  fixed  ;227  but  the  assessment 
levied  upon  property  under  any  basis  cannot  exceed  the  cost  of 
the  improvement.228 


384;  Sigler  v.  Fuller,  34  N.  J.  Law, 
227;  In  re  Roberts,  81  N.  Y.  62; 
Northern  Indiana  R.  Co.  v.  Connelly, 
10  Ohio  St.  159;  Schenley  v.  Com., 
36  Pa.  29. 

226  St.   John   v.   City   of   East   St. 
Louis,  50  111.  92;  Adams  v.  City  of 
Shelbyville,  154  Ind.  467,  49  L.  R.  A. 
797;    Hoboken  Land  &  Imp.   Co.   v. 
City  of  Hoboken,  36  N.  J.  Law,  291; 
Frevert  v.   City  of  Bayonne,  63  N. 
J.    Law,    202,    42    Atl.    773;     In    re 
Beechwood    Ave,    194    Pa.    86.     The 
fact  that  property  will  also  pay  its 
portion  of  the  general  taxes  under 
such  a  rule  in  addition  to  the  spe- 
cial assessments  levied  does  not  ren- 
der the  special  assessments  illegal. 

227  city    Council    of    Montgomery 
v.    Birdsong,    126    Ala.    632,    28    So. 
522;    City  of   Galesburg  v.    Searles, 
114  111.  217;   Watson  v.  City  of  Chi- 
cago, 115  111.  78;  City  of  Sterliug  v. 
Gait,   117   111.   11;    City  of  Jackson- 
ville v.  Hamill,  178  111.  235.     Birket 
v.  City  of  Peoria,  185  111.  369,  citing 
Bigelow  v.   City  of  Chicago,  90  111. 
49,  and  Fagan  v.  City  of  Chicago,  84 
111.  227. 

Garden  City  v.  Trigg,  57  Kan.  632, 
47  Pac.  524.  A  stipulation  for  the 
same  result  will  also  be  held  valid. 
Maddux  v.  City  of  Newport,  12  Ky. 
L.  R.  657,  14  S.  W.  957;  Cassidy  v. 
City  of  Covington,  12  Ky.  L.  R.  980, 
16  S.  W.  93;  Barber  Asphalt  Pav. 
Co.  v.  Gogreve,  41  La.  Ann.  251;  Kel- 
ly v.  Chadwick,  104  La.  719,  29  So. 
295;  Alberger  v.  City  of  Baltimore, 


64  Md.  1;  Weed  v.  City  of  Boston, 
172  Mass.  28,  51  N.  E.  204,  42  L.  R. 
A.  642.  But  if  such  arbitrary 
amount  as  assessed  on  abutting 
property  owners  is  unreliable  and 
disproportionate  as  compared  by 
benefits,  such  legislation  may  be  held 
invalid.  Copeland  v.  City  of  Spring- 
field, 166  Mass.  498;  Hutchinson  v. 
City  of  Omaha,  52  Neb.  345,  72  N. 
W.  218;  In  re  Opening  of  One  Hun- 
dred &  Sixty-Seventh  St.,  68  Hun, 
158,  22  N.  Y.  Supp.  604;  In  re  Turf- 
ler,  44  Barb.  (N.  Y.)  46;  People  v. 
Molloy,  161  N.  Y.  621,  55  N.  E. 
1099,  affirming  35  App.  Div.  136,  54 
N.  Y.  Supp.  1084;  Hilliard  v.  City 
of  Asheville,  118  N.  C.  845;  Ken- 
sington Com'rs  v.  Keith,  2  Pa.  218; 
Allen  v.  City  of  Galveston,  51  Tex. 
302.  Legislation,  however,  whicb. 
does  not  take  into  consideration  the 
benefits  to  be  received  by  the  prop- 
erty holder  is  unconstitutional. 
City  of  El  Paso  v.  Mundy,  85  Tex. 
316;  City  of  Parkersburg  v.  Taven- 
ner,  42  W.  Va.  486. 

228  Davis  v.  City  of  Litchfield,  145 
111.  313,  33  N.  E.  888,  21  L.  R.  A. 
563.  The  rule  is  applied  here  that 
an  ordinance  based  upon  the  prin- 
ciple of  charging  abutting  property 
with  the  cost  of  the  improvement 
Immediately  fronting  is  illegal  as 
imposing  the  burden  unequally  and 
without  consideration  of  the  ques- 
tion of  benefits  received. 

Jackson  v.  Smith,  120  Ind.  520: 
Lorden  v.  Coffey,  178  Mass.  489,  60 


§337 


SPECIAL   ASSESSMENTS. 


783 


The  justice  of  this  method  of  taxation  is  universally  conceded. 
At  one  time  the  attempt  was  made  to  establish  the  right  to  make 
a  local  assessment  as  an  exercise  of  the  police  power  rather  than 
the  power  of  taxation  but  this  has  been  abandoned;  there  is  no 
doubt  but  that  the  right  to  levy  special  assessments  is  a  part 
of  the  power  of  taxation.2-9  All  the  principles  which  control  the 


N.  E.  124.  St.  of  Mass.  1892,  c. 
418,  §  8,  which  provides  that  the  cost 
of  a  local  improvement  shall  be  a  lien 
upon  the  land  without  personal  lia- 
bility is  void  since  the  benefit  may 
be  less  than  the  cost,  the  act  fur- 
ther providing  that  the  cost  should 
be  assessed  proportionately  against 
the  property  receiving  benefits. 

Thayer  v.  City  of  Grand  Rapids, 
82  Mich.  298,  46  N.  W.  228.  If  there 
is  a  surplus  in  excess  of  the  cost  of 
moneys  collected  from  assessments, 
it  shall  be  apportioned  and  repaid 
on  demand  to  those  originally  con- 
tributing it.  An  action  in  assump- 
sit  by  a  taxpayer  will  lie  against 
the  city  to  recover  the  amount  to 
which  he  is  entitled. 

State  v.  Pillsbury,  82  Minn.  359. 
The  authorities  fully  collated  and 
reviewed  in  this  case.  Ex  parte 
City  of  Albany,  23  Wend.  (N.  Y.) 
277.  An  assessment  based  upon  ben- 
efits is  valid  though  it  exceed  the 
actual  cost  of  constructing  the  local 
improvement  adjacent. 

Spangler  v.  City  of  Cleveland,  35 
Ohio  St.  469;  City  of  Dallas  v.  Em- 
erson (Tex.  Civ.  App.)  36  S.  W. 
304;  Yesler  v.  City  of  Seattle,  1 
Wash.  St.  308;  City  of  Seattle  v. 
Yesler,  1  Wash.  T.  571;  State  v.  City 
of  Portage,  12  Wis.  562.  But  see 
Parsons  v.  District  of  Columbia,  170 
U.  S.  45,  which  holds  a  special  as- 
sessment in  excess  of  the  cost  of  the 
improvement  valid  when  it  is  the 
purpose  in  levying  such  assessment 
to  pay  not  only  the  original  cost  of 


the  improvement  but  also  to  create 
and  maintain  a  fund  for  its  repair. 

229  in  Keese  V.  City  of  Denver,  10 
Colo.  112,  it  is  held,  however,  that  a 
local  assessment  levied  according  to 
the  front-foot  rule  for  the  building 
of  a  sewer  is  a  valid  exercise  of  the 
police  power.  In  City  of  Peoria  v. 
Kidder,  26  111.  351,  and  City  of  Chi- 
cago v.  Lamed,  34  111.  203,  it  is 
held  that  assessments  for  street  im- 
provements are  not  taxes  within  the 
meaning  of  the  Illinois  constitution 
in  force  at  that  time  and  could  only 
be  made  through  the  exercise  of  the 
power  of  eminent  domain. 

Bradley  v.  McAtee,  70  Ky.  (7 
Bush)  667;  Motz  v.  City  of  Detroit, 
18  Mich.  495;  McComb  v.  Bell,  2 
Minn.  295  (Gil.  256).  The  making 
of  a  local  assessment  to  pay  the  cost 
of  an  improvement  is  an  exercise  of 
the  power  of  taxation,  not  that  of 
eminent  domain.  Striker  v.  Kelly, 
7  Hill  (N.  Y.)  9;  Brewster  v.  City 
of  Syracuse,  19  N.  Y.  116;  J.  &  A. 
McKechnie  Brewing  Co.  v.  Village 
of  Canandaigua,  162  N.  Y.  631,  57 
N.  E.  1113,  affirming  15  App.  Div. 
139,  44  N.  Y.  Supp.  317;  In  re  Open- 
ing of  Whitlock  Ave.,  51  App.  Div. 
436,  64  N.  Y.  Supp.  717;  City  of 
Raleigh  v.  Peace,  110  N.  C.  32,  14 
S.  E.  521,  17  L.  R.  A.  330.  Merri- 
man,  C.  J.,  and  Davis,  J.,  dissent- 
ing. 

King  v.  City  of  Portland,  2  Or. 
146;  In  re  Vacation  of  Centre  St., 
115  Pa.  247,  8  Atl.  56;  Allen  v.  Drew, 
44  Vt.  174.  The  court  in  this  case 


784 


PUBLIC  REVENUES. 


§   337 


making,  the  levy  or  the  collection  of  special  assessments,  are 
those  which  control  and  regulate  the  making,  levying  and  collect- 
ing of  governmental  taxes;  and  constitutional  provisions  also  ap- 
ply.230 That  constitutional  limitation  requiring  all  taxes  to  be 
uniform  and  equal  applies  equally  to  the  making  of  local  assess- 
ments; but  uniformity  and  equality  as  applied  to  general  taxa- 
tion involves  the  idea  of  valuation.  The  legality  of  a  local  as- 
sessment as  determined  by  this  same  principle  of  uniformity  and 
equality  depends  upon  the  relative  benefit  received  by  the  prop- 
erty assessed.231  There  axe  many  local  improvements  such  as 


said  that  the  levy  of  local  assess- 
ments for  the  building  of  sewers, 
sidewalks,  drains  and  other  local 
improvements  and  the  apportion- 
ment of  the  expense  in  a  ratio  of  the 
benefits  received  was  an  exercise  of 
the  right  of  taxation  inherent  in 
every  sovereign  state.  It  was  not  a 
taking  of  private  property  for  pub- 
lic use  under  the  right  of  eminent 
domain. 

230  Noonan  v.    City   of   Stillwater, 
33  Minn.  198. 

231  The    following    cases    consider 
constitutional     or   other   provisions 
relative  to  uniformity  and  equality 
of  taxation  as   applied   to   local   as- 
sessments.   An  examination  of  them 
proves  the  rule  stated  in  the  text; 
even    those    which    hold    that    such 
constitutional  provisions  do  not  ap- 
ply to  local  assessments  sustain  the 
principle   that  they   must  be  levied 
in   an    equal    and   uniform    manner 
in  proportion  to  the  benefits  receiv- 
ed.    People  v.   Lynch,    51   Cal.    15; 
Violett  v.   City   Council   of  Alexan- 
dria,  92  Va.   561,  31  L.   R.  A.   382; 
Bedard  v.  Hall,  44  111.  91;   Hundley 
v.  Lincoln  Park  Com'rs,  67  111.  559; 
Gilcrest  v.  McCartney,  97  Iowa,  138, 
"6  N.  W.  103;  Hines  v.  City  of  Leav- 

nworth,  3  Kan.  186;  Holzhauer  v. 
"Mty  of  Newport,  94  Ky.  396;  Gos- 
aell  v.  City  of  Louisville,  20  Ky.  L. 


R.  519,  46  S.  W.  722;  Sears  v.  Street 
Com'rs  of  Boston,  173  Mass.  350,  53 
N.  E.  876;  Jones  v.  Water  Com'rs  of 
Detroit,  34  Mich.  273;  In  re  Willis 
Ave.,  56  Mich.  244;  State  v.  St. 
Louis  County  Dist.  Ct.,  66  Minn. 
161;  Adams  v.  Lindell,  5  Mo.  App. 
197,  72  Mo.  198;  McGuire  v.  Brock- 
man,  58  Mo.  App.  307;  Farrar  v. 
City  of  St.  Louis,  80  Mo.  379;  Kit- 
tle v.  Shervin,  11  Neb.  65. 

Jones  v.  Holzapfel,  11  Okl.  405,  68 
Pac.  511.  But  special  assessments 
are  not  taxes  within  the  meaning  of 
the  organic  act  declaring  that  all 
property  shall  be  taxed  in  propor- 
tion to  its  value.  Ladd  v.  Gambell, 
35  Or.  393;  Appeal  of  Protestant 
Orphan  Asylum,  111  Pa.  135;  Wi- 
nona  &  St.  P.  R.  Co.  v.  City  of  Wa- 
tertown,  1  S.  D.  46;  Mauldin  v.  City 
Council  of  Greenville,  42  S.  C.  293, 
27  L.  R.  A.  284;  Lovenberg  v.  City 
of  Galveston,  17  Tex.  Civ.  App.  162, 
42  S.  W.  1024. 

In  Taylor  v.  Boyd,  63  Tex.  533,  it 
is  held  that  assessments  for  local 
improvements  are  not  taxes  within 
the  constitutional  provision  requir- 
ing regularity  and  uniformity.  City 
of  Norfolk  v.  Chamberlain,  89  Va. 
196;  City  of  Spokane  Falls  v. 
Browne,  3  Wash.  St.  84;  Hansen  v. 
Hammer,  15  Wash.  315. 

The  following  cases  hold  constitu- 


§  337 


SPECIAL  ASSESSMENTS. 


•785 


the  construction  and  improvement  of  highways,  the  laying  of 
water  mains  and  sewers  which  result  in  a  benefit  or  advantage 
to  the  community  at  large,  yet  that  benefit  or  advantage  is  re- 
mote in  its  character  and  trivial  in  its  extent.  The  immediate 
advantage  and  benefit  resulting  from  the  construction  of  such 
improvement  accrues  to  the  property  immediately  adjacent  013 
adjoining  it.  That  the  property  thus  specially  benefited  should 
meet  the  burden  created  is  everywhere  conceded.23* 


tional  provisions  that  all  taxes  shall 
be  equal  and  uniform  do  not  apply 
to  assessments  for  local  improve- 
ments: Burnett  v.  City  of  Sacra- 
mento, 12  Cal.  76;  Emery  v.  San 
Francisco  Gas  Co.,  28  Cal.  345;  City 
of  Denver  v.  Knowles,  17  Colo.  204, 
17  L.  R.  A.  135;  Edgerton  v.  Town 
of  Green  Cove  Springs,  19  Fla.  140; 
Speer  v.  City  of  Athens,  85  Ga.  49, 
9  L.  R.  A.  402;  Murphy  v.  People, 
120  111.  234;  Reinken  v.  Fuehring, 
130  Ind.  382,  15  L.  R.  A.  624;  War- 
ren v.  Henly,  31  Iowa,  31;  Mines 
v.  City  of  Leavenworth,  3  Kan.  186 ; 
Ottawa  County  Com'rs  v.  Nelson,  19 
Kan.  234;  City  of  New  Orleans  v. 
Elliott,  10  La,  Ann.  59;  In  re  City 
of  New  Orleans,  20  La.  Ann.  497; 
State  v.  St.  Louis  County  Dist.  Ct., 
61  Minn.  542;  Daily  v.  Swope,  47 
Miss.  367;  Cain  v.  Davie  County 
Com'rs,  86  N.  C.  8;  City  of  Raleigh 
v.  Peace,  110  N.  C.  32,  17  L.  R.  A. 
330;  Milliard  v.  City  of  Asheville. 
118  N.  C.  845;  Bonsall  v.  Town  of 
Lebanon,  19  Ohio,  418;  Gest  v.  City 
of  Cincinnati,  26  Ohio  St.  275;  King 
v.  City  of  Portland,  2  Or.  146;  Cook 
v.  Port  of  Portland,  20  Or.  580,  13 
L.  R.  A.  533;  Huidekoper  v.  City  of 
Meadville,  83  Pa.  156;  Shoemaker  v. 
City  of  Harrisburg,  122  Pa.  285; 
City  of  Chester  v.  Black,  132  Pa. 
568,  6  L.  R.  A.  802;  Beaumont  v. 
Wilkes-Barre  City,  142  Pa.  198; 
Bishop  v.  Tripp,  15  R.  I.  466;  Wash- 
Abb.  Corp.— 50. 


ington  v.  City  of  Nashville,  31  Tenn. 
(1  Swan)  177;  Roundtree  v.  City  of 
Galveston,  42  Tex.  612;  Taylor  v. 
Boyd,  63  Tex.  533;  Richmond  &  A. 
R.  Co.  v.  City  of  Lynchburg,  81  Va. 
473;  Violett  v.  City  Council  of  Alex- 
andria, 92  Va.  561;  Austin  v.  City 
of  Seattle,  2  Wash.  St.  667;  City  of 
Spokane  Falls  v.  Browne,  3  Wash. 
St.  84;  Lumsden  v.  Cross,  10  Wis. 
282;  Bond  v.  City  of  Kenosha,  17 
Wis.  284. 

232  city  of  Little  Rock  v.  Katzen- 
stein,  52  Ark.  107,  12  S.  W.  198; 
Bacon  v.  City  of  Savannah,  105  Ga. 
62,  31  S.  E.  127;  Lowe  v.  White 
County  Com'rs,  156  Ind.  163,  59  N. 
E.  466;  In  re  City  of  New  Orleans, 
20  La.  Ann.  497;  Minnesota  Lin- 
seed Oil  Co.  v.  Palmer,  20  Minn. 
468  (Gil.  424). 

Rogers  v.  City  of  St.  Paul,  22 
Minn.  494.  In  this  case  the  court 
in  its  opinion  by  Berry,  J.,  defined 
local  improvements  in  the  follow- 
ing language: 

"By  common  usage,  especially  as 
evidenced  by  the  practice  of  courts 
and  text  writers,  the  term  'local  im- 
provements' is  employed  as  signi- 
fying improvements  made  in  a  par- 
ticular locality  by  which  the  real 
property  adjoining  or  near  such  lo- 
cality is  specially  benefited.  *  *  * 
The  fact  that  the  street  to  be  im- 
proved is  the  most  public  thorough- 
fare in  the  city  does  not  prevent 


786  PUBLIC  REVENUES.  §   333 

In  addition  to  this  reason  there  also  exists  another  which  courts 
have  given  as  of  equal  weight  in  sustaining  the  principle  that 
property  benefited  should  pay  the  cost  of  a  local  improvement. 
The  cost  of  all  public  improvements  is  paid  through  the  levy  and 
collection  of  taxes  of  one  species  or  another.  In  the  absence  of  a 
limitation  upon  the  tax  rate,  in  case  this  principle  did  not  apply, 
there  would  exist  beyond  question  the  inclination  on  the  part  of 
public  officials  to  engage  in  the  construction  of  extravagant  un- 
necessary and  costly  improvements  to  be  paid  by  general  taxation 
of  property  more  or  less  remote  from  the  place  where  such  im- 
provements are  constructed.233  If  the  principle  of  general  taxa- 
tion were  permitted  to  pay  the  cost  of  local  improvements,  it 
would  result  in  a  large  increase  of  the  burden  of  taxation  on  tax- 
payers. The  personal  payment  of  a  tax  by  an  individual  tends 
to  restrict  him  in  an  expenditure  of  public  moneys  and  the  fact 
that  the  construction  of  expensive  and  unnecessary  improve- 
ments increases  largely  the  tax  which  the  public  official  personal- 
ly pays  makes  him  conservative  in  such  matters.23* 

§  338.    The  exercise  of  the  power  to  levy. 

Since  the  levy  of  special  assessments  is  a  species  of  taxation,  it 
follows  that  the  right  to  exercise  the  power  by  a  public  corpora- 
tion must  be  granted  by  the  sovereign.  The  grant  of  power  as 
in  the  case  of  ordinary  taxation  must  be  expressly  given  in  clear 
and  unmistakable  terms  and  cannot  be  implied  from  a  general 
grant  of  power  to  a  corporation.233  There  cannot  be  implied, 

the    improvement    from    being    'lo-  sioners  of  assessment  in  apportion- 

caT;     but    the    local    character    of  ing   the   tax   should   take   into   con- 

the  improvement  depends  upon  the  sideration  all  the  property  benefited 

special  benefit  which  will  result  to  although  some  may  be  exempt  from 

the  real  property  adjoining  or  near  assessment. 

the  locality  in  which   the  improve-  223  Municipality    No.    2    v.    Dunn, 

ment  is  to  be  made."  10  La.  Ann.    57;    Lockwood  v.  City 

In  re  Report  of  Com'rs,  49  N.  J.  of  St.  Louis,  24  Mo.  20. 

Law,    488,    10   Atl.   363.     A   change  234  Municipality  No.  2  v.  Dunn,  10 

in    ownership    of    land    subject    to  La.  Ann.   57. 

local  assessment  does  not  defeat  the  235  O'Brien   v.   Wheelock,    95   Fed. 

right  of  a  state  to  subsequently  au-  883.     Under  the  111.  Const,  of  1870, 

thorize    assessments    and    reassess-  art.  9,  §  9,  providing  that  "The  gen- 

ments.     Watrous   v.    City   of   Eliza-  eral  assembly  may  vest  the  corpor- 

beth,   40  N.  J.  Law,  278.     Comrnis-  ate  authorities  of  cities,  towns  and 


§     338 


SPECIAL  ASSESSMENTS. 


787 


from  a  general- welfare  clause  so  often  found  in  municipal  char- 
ters, a  power  to  levy  special  assessments  for  the  making  of  locaJ 


villages  with  power  to   make  local 
improvements  by    special  assessment 
or    by    special    taxation   of   contigu- 
ous property  or  otherwise,"  the  leg- 
islature  is   prohibited   from   confer- 
ring power  to  make  special  assess- 
of  "cities,  towns  and  villages"  and 
an  act  providing  for  the  construc- 
tion    and     protection     of     ditches, 
tion     and     protection     of     ditches, 
drains,  levees  and  other  works  and 
authorizing  the  cost  to  be  assessed 
on   property  benefited  by  juries  ap- 
pointed by  county  courts,  is  in  vio- 
lation   of   the   constitutional    provi- 
sion, and  assessments  made  in  pur- 
suance   to    its    terms    are    not    en- 
forceable. 

Murphy  v.  City  of  Wilmington,  6 
Houst.  (Del.)  108;  City  Council  of 
Augusta  v.  Murphey,  79  Ga.  101,  3 
S.  E.  326;  McChesney  v.  Village  of 
Hyde  Park,  151  111.  634,  37  N.  E. 
858.  Under  constitution  of  111.  art. 
4,  §  31,  as  amended  in  1878,  cities 
and  villages  have  the  power  to  con- 
struct and  maintain,  by  means  of 
special  assessments,  drains  and 
pumping  works  for  drainage  pur- 
poses. City  of  Chicago  v.  Weber, 
94  111.  App.  561.  The  exercise  of 
the  power  is  discretionary  with  the 
municipal  corporation  and  after 
proceedings  have  been  commenced, 
but  before  they  are  completed,  they 
can  be  abandoned. 

Lawrence  v.  People,  188  111.  407, 
58  N.  E.  991.  The  adoption,  under 
authority  of  law,  by  a  city,  of  that 
portion  of  the  statutes  relating  to 
the  making  of  municipal  improve- 
ments, carries  with  it  the  adoption 
of  all  subsequent  amendments  to 
such  statutes.  Webster  v.  People, 


98  111.  343;  City  of  Fairfield  v.  Rat- 
cliff,  20  Iowa,  396;  McNamara  v. 
Estes,  22  Iowa,  246;  Burnes  v.  City 
Council  of  Atchison,  2  Kan.  454; 
Hydes  v.  Joyes,  67  Ky.  (4  Bush) 
464,  96  Am.  Dec.  311;  Bradley  v. 
McAtee,  70  Ky.  (7  Bush)  667. 

Hood  v.  Town  of  Lebanon ,  12  Ky. 
L.  R.  813,  15  S.  W.  516.  The  im- 
provements contemplated  must  be 
useful  and  reasonable  in  their  char- 
acter. City  of  Annapolis  v.  Har- 
wood,  32  Md.  471;  Steckert  v.  City 
of  East  Saginaw,  22  Mich.  104; 
Brady  v.  Hayward,  114  Mich.  326; 
City  of  Greenville  v.  Harvie,  79 
Miss.  754,  31  So.  425. 

State  v.  Ramsey  County  Dist.  Ct, 
SO  Minn.  293,  83  N.  W.  183.  The 
improvement  must,  however,  be 
actually  made  for  whicn  thi  assess- 
ment, is  levied.  Hurford  v.  City  of 
Omaha,  4  Neb.  336.  In  Dodge 
County  v.  Acorn,  61  Neb.  376,  85 
N.  W.  292,  it  was  held,  however, 
that  under  Const,  art.  9,  §  6,  the 
legislature  could  confer  upon  coun- 
ties the  power  to  make  local  im- 
provements by  special  assessments 
upon  property  benefited  although 
the  language  of  the  section  cited 
provides  that  "the  legislature  may 
vest  the  corporate  authorities  of 
cities,  towns  and  villages  with  pow- 
er to  make  local  improvements  by 
•special  assessmfent  or  by  special 
taxation  of  property  benefited." 

Watrous  v.  City  of  Elizabeth,  40 
N.  J.  Law,  278;  Long  Branch  Police, 
Sanitary  &  Imp.  Commission  v. 
Dobbins,  61  N.  J.  Law,  659,  40  Atl. 
599;  Moran  v.  City  of  Troy,  9  Hun 
(N.  Y.)  540;  Meech  v.  City  of  Buf- 
falo, 29  N.  Y.  198;  City  of  Wil- 


788 


PUBLIC  REVENUES. 


§  328 


improvements.236  Neither  can  it  be  implied  from  the  ordinary 
grant  of  power  to  levy  taxes,237  nor  from  the  power  to  make  local 
or  public  improvements.238 

(a)  The  power  a  continuing  one.  The  power,  when  once  grant- 
ed, until  repealed,  is  considered  a  continuing  one,  the  right  to  ex- 
ercise which  is  not  lost  either  by  its  non  use,  excessive  use,  or  by 
the  making  of  a  specific  local  improvement.239  The  law  recog- 
nizes the  fact  that  municipal  conditions  are  constantly  changing 
and  street  improvements  which  may  be  adequate  at  one  time  may 
become  inadequate  at  a  later  period  because  of  an  increase  in 
population  or  radically  changed  business  and  economic  condi- 
tions. In  such  a  case,  although  the  power  may  have  been  one 
exercised  in  a  speciiic  instance,  this  fact  will  not  prevent  the  ex- 


mington  v.  Yopp,  71  N.  C.  76;  In 
re  Morewood  Ave.,  159  Pa.  20;  Lee 
v.  Town  of  Mellette,  15  S.  D.  586, 
90  N.  W.  855. 

Alford  v.  City  of  Dallas  (Tex. 
Civ.  App.)  35  S.  W.  816.  After  a 
city  has  paid  the  cost  of  a  local  im- 
provement out  of  its  general  fund, 
it  cannot  then  levy  a  special  assess- 
ment upon  property  benefited. 

Storrie  v.  Woessner  (Tex.  Civ. 
App.)  47  S.  W.  837;  Hansen  r. 
Hammer,  15  Wash.  315.  The  grant 
of  the  power  by  the  legislature  un- 
der constitutional  authority  to  sub- 
ordinate governmental  agents  is  not 
necessarily  exclusive  or  does  not 
deprive  it  of  the  right  to  grant  the 
same  power  to  other  subordinate 
agencies.  Pickering  v.  Ball,  19 
Wash.  185;  State  v.  City  of  Ash- 
land, 71  Wis.  502,  37  N.  W.  809. 

236Lott  v.  Ross,  38  Ala.  156;  City 
of  Savannah  v.  Hartridge,  8  Ga.  23; 
Town  of  New  Iberia  v.  Weeks,  104 
La.  489,  29  So.  252;  Winston  Com'rs 
v.  Taylor,  99  N.  C.  210;  Green  v. 
Ward,  82  Va.  324. 

ZST  Hitchcock  v.  City  of  Galves- 
ton,  96  U.  S.  341;  First  Presby- 
terian Church  v.  City  of  Ft.  Wayne, 


36  Ind.  338;  Appeal  of  Powers,  29 
Mich.  504. 

238Bucknall  v.  Story,  36  Cal.  67; 
City  of  Augusta  v.  Dunbar,  50  Ga. 
387;  Wright  v.  City  of  Chicago,  20 
111.  252;  Gridley  v.  City  of  Bloom- 
ington,  88  111.  555;  City  of  Fair- 
field  v.  Ratcliff,  20  Iowa,  396;  City 
of  Annapolis  v.  Harwood,  32  Md. 
471. 

239  Pardridge  v.  Village  of  Hyde 
Park,  131  111.  537;  Spaulding  v. 
Baxter,  25  Ind.  App.  485,  58  N.  E. 
551.  Where  a  city  has  made  a 
local  improvement  and  provided  for 
its  payment  from  the  general  fund, 
its  power  to  provide  for  such  pay- 
ment is  exhausted  and  it  cannot 
thereafter  make  an  assessment 
upon  property  owners  benefited  by 
this  improvement.  Wilkins  v.  City 
of  Detroit,  46  Mich.  120;  Budge  v. 
City  of  Grand  Forks,  1  N.  D.  309, 
47  N.  W.  390;  10  L.  R.  A.  165. 
Where  one  assessment  has  been 
made  upon  property,  its  right  is  lost 
to  again  assess  such  property  for 
its  portion  of  the  cost  of  making 
the  same  improvement.  Alcorn  v. 
City  of  Philadelphia,  112  Pa.  494. 


§  338b 


SPECIAL   ASSESSMENTS. 


789 


ercise  again  by  the  municipality  of  the  power  to  make  a  local  im- 
provement to  meet  the  changed  condition.240  This  rule,  however, 
does  not  usually  apply  to  the  reconstruction  of  a  local  improve- 
ment before  it  has  become  worn  out  or  rendered  unsuitable  for 
use  by  changed  condition.241 

(b)  Cannot  be  delegated.  When  granted  the  power  by  the 
sovereign,  a  subordinate  agent  cannot  delegate  this  right  t<?  other 
officials  or  bodies.  Its  exercise  involves  the  performance  of  acts 
requiring  judgment  and  discretion  and  the  universal  rule  applies 


240  Hurt  v.  City  of  Atlanta,  100 
Ga.  274;  Dickinson  v.  City  of  De- 
troit, 111  Mich.  480;  Robertson  v. 
City  of  Omaha,  55  Neb.  718,  76  N. 
W.  442,  44  L.  R.  A.  534;  Denise  v. 
Village  of  Fairport,  11  Misc.  199, 
32  N.  Y.  Supp.  97.  The  relaying  of 
a  sewer  pipe  nine  inches  in  diame- 
ter by  one  fifteen  inches  in  diame- 
ter is  not  considered  an  ordinary 
repair  but  the  construction  of  a 
new  sewer,  the  expense  of  which 
can  be  charged  to  property  bene- 
fited. 

Tilden  v.  City  of  New  York,  56 
Barb.  (N.  Y.)  340;  People  v.  City 
of  Buffalo,  166  N.  Y.  604,  59  N.  E. 
1128,  affirming  52  App.  Div.  157,  65 
N.  Y.  Supp.  163.  The  rule  includes 
repaying  of  a  street.  Ladd  v.  City 
of  Portland,  32  Or.  271,  51  Pac. 
654;  City  of  Philadelphia  v.  Yew- 
dall,  190  Pa.  412.  In  this  case  it 
was,  however,  held  that  after  a 
street  had  been  paved  under  a  sub- 
sequent widening,  the  cost  of  pav- 
ing such  increased  width  could  not 
be  assessed  against  abutting  prop- 
erty owners.  Mauldin  v.  City  Coun- 
cil of  Greenville,  53  S.  C.  285,  43  L. 
R.  A.  101. 

241  Koons  T.  Lucas,  52  Iowa,  177; 
City  of  Louisville  v.  Tyler,  23  Ky.  L. 
R.  827,  64  S.  W.  415;  Louisville  &  N. 
R.  Co.  v.  Nehan,  23  Ky.  L.  R.  889,  64 
S.  W.  457;  Heman  v.  Ring,  85  Mo. 


App.  231;  Jelliff  v.  City  of  New- 
ark, 49  N.  J.  Law,  239,  12  Atl.  770. 
Rule  does  not  apply  to  repaving  with 
an  improved  pavement.  City  of  Erie 
v.  Russell,  148  Pa.  384,  23  Atl.  1102; 
Hammett  v.  City  of  Philadelphia, 
65  Pa.  146;  City  of  Philadelphia  v. 
Henry,  161  Pa.  38;  Drummond  v. 
City  of  Eau  Claire,  79  Wis.  97,  48 
N.  W.  244,  following  Hall  v.  Chip- 
pewa  Falls,  47  Wis.  267.  The  rule 
stated  in  the  text  does  not  apply  to 
the  expense  of  regrading  a  street 
which  can  be  charged  against  abut- 
ting property  despite  the  fact  that 
such  property  has  already  borne 
the  expense  of  street  grading. 
Adams  v.  City  of  Beloit,  105  Wis 
363,  81  N.  W.  869,  47  L.  R.  A.  441. 
It  was  held  in  this  case  that  the 
cost  of  repaving  a  street  that  has 
once  been  improved  may  be  asses- 
sed to  abutting  property  under  Rev. 
St.  of  1898,  c.  40a,  §  175.  Winne- 
bago  Furniture  Mfg.  Co.  v.  Fond 
du  Lac  County,  113  Wis.  72,  88  N. 
W.  1018.  Where  a  city  charter  pro- 
vides that  special  assessments  shall 
not  be  levied  on  abutting  property 
which  has  paid  for  a  former  im- 
provement, a  landowner  who  with 
others  petitioned  for  repaving  with 
a  certain  material  is  not  estopped 
to  contest  his  liability  for  the  cost 
of  paving  with  a  different  material. 


790 


PUBLIC  REVENUES. 


§  339 


that  the  performance  of  such  acts  cannot  be  delegated  to  another 
by  one  possessing  the  right  to  exercise  them.242 

§  339.    Limitations  upon  the  power. 

Aside  from  the  suggested  limitation  that  the  power  to  levy 
special  assessments  is  a  delegated  one,  there  are  found  restric- 
tions and  limitations  upon  the  right  to  exercise  it  either  in  par- 
ticular municipal  charters,243  general  statutory  provisions244  or 
state  constitutions.245  The  general  principle  also  applies  in  con- 
nection with  this  subject  of  limitations  that  since  the  power  to 
be  exercised  must  be  expressly  granted  or  must  exist  through 
necessary  implication,  its  exercise  is  limited  as  to  manner  and 
time  and  place  to  the  phraseology  used  in  the  grant.248  The  au- 


242  in   re   Hearn,    96   N.   Y.    378; 
Whyte    v.    City     of    Nashville,     32 
Term.   (2  Swan)    364.    But  the  rule 
does  not  extend  to  mere  matters  of 
detail     or     forbid     business     being 
transacted   in  the  manner  usual  to 
legislative  bodies.     Bartram  v.  City 
of   Bridgeport,    55   Conn.    122;    Ray 
v.    City    of    Jeffersonville,    90    Ind. 
567;   People  v.  Lohnas,  54  Hun  (N. 
Y.)   604. 

243  City  Council  of  Montgomery  v. 
Birdsong,  126  Ala.  632,  28  So.  522; 
Minnesota  Linseed   Oil   Co.   v.   Pal- 
mer, 20  Minn.  468  (Gil.  424) ;  Nash 
v.  City  of   St.  Paul,  23  Minn.  132; 
Dousman   v.    City    of    St.    Paul,    23 
Minn.  394;  People  v.  City  of  Brook- 
lyn, 23  Barb.    (N.  Y.)   166;    Pier  v. 
City  of  Fond  du  Lac,  38  Wis.  470. 

244  In  re  Palmer,  31  How.  Pr.  (N. 
Y.)    42;    Cherington  v.   City  of  Co- 
lumbus, 50  Ohio  St.  475. 

245  Lombard  v.  West  Chicago  Park 
Com'rs,  181  U.  S.  33.    A  special  as- 
sessment made  pursuant  to  legisla- 
tive  authority    to    pay    for   a    com- 
pleted   local    improvement,    a    pre- 
vious  assessment    for   the   payment 
of  which  was  held  illegal,  is  not  in 
violation  of  any  right  given  by  the 


constitution    of    the    United    States, 
amendment,  art.  14. 

City  of  Springfield  v.  Baker,  56 
Mo.  App.  637.  That  section  of  a 
bill  of  rights  which  prohibits  the 
taking  of  private  property  for  pub- 
lic use  without  compensation  has 
no  application  to  the  levy  of  assess- 
ments for  local  improvements. 

City  of  Raleigh  v.  Peace,  110  N. 
C.  32,  17  L.  R.  A.  330.  A  constitu- 
tional provision  limiting  the  exer- 
cise of  the  power  of  taxation  by 
cities  does  not  apply  to  special  as- 
sessments for  local  improvements. 

Storrie  v.  Woessner  (Tex.)  47  S. 
W.  837.  The  grant  of  authority  for 
levying  local  assessments  does  not 
conflict  with  constitution,  art.  3,  § 
56,  forbidding  the  passage  of  any 
local  or  special  law. 

2*8  Smith  v.  Cofran,  34  Cal.  310; 
McChesney  v.  Village  of  Hyde  Park, 
151  111.  634,  37  N.  E.  858.  A  trivial, 
immaterial  error  will  not,  however, 
affect  the  validity  of  such  proceed- 
ings. 

City  of  Henderson  v.  Lambert,  77 
Ky.  (14  Bush)  24;  Barber  Asphalt 
Pav.  Co.  v.  Watt,  51  La.  Ann.  1345. 
Municipal  authorities,  the  court 


§  339 


SPECIAL   ASSESSMENTS. 


791 


thority  may  include  a  limitation  upon  its  exercise  expressed  either 
as  a  maximum  amount2*7  or  rate  per-cent248  which  can  be  levied 


held  in  this  case,  must  conform  to 
the  strict  letter  of  the  law  in  exer- 
cising power  conferred  authorizing 
them  to  make  local  assessments. 

Adams  v.  Bay  City,  78  Mich.  211, 
44  N.  W.  138;  City  of  Westport  v. 
Mastin,  62  Mo.  App.  647;  Equitable 
Trust  Co.  v.  O'Brien,  55  Neb.  735; 
Medland  v.  Linton,  60  Neb.  249,  82 
N.  W.  866.  The  court  in  this  case 
held  that  the  record  must  show  af- 
firmatively a  compliance  with  all 
essential  conditions  to  a  valid  ex- 
ercise of  the  taxing  power.  Facts 
omitted  will  not  be  presumed. 

Batty  v.  City  of  Hastings,  63  Neb. 
26,  88  N.  W.  139;  People  v.  City  of 
Utica,  58  How.  Pr.  (N.  Y.)  136; 
Delaware  &  H.  Canal  Co.  v.  City  of 
Buffalo,  167  N.  Y.  589,  60  N.  E. 
1119.  Where  there  is  a  failure  to 
follow  statutory  provisions,  an 
abutter  cannot  assail  an  assessment 
on  his  property  without  showing 
an  injury  through  such  failure,  af- 
firming 39  App.  Div.  333,  56  N.  Y. 
Supp.  976. 

Hopkins  v.  Mason,  61  Barb.  (N. 
Y.)  469.  A  statute  authorizing  an 
assessment  for  street  improvements 
is  in  derogation  of  individual  rights 
and  must  be  strictly  construed  and 
rigorously  observed. 

Merritt  v.  Portchester,  71  N.  Y. 
309.  A  statute  providing  that  as- 
sessment commissioners  shall  take 
an  oath  to  "faithfully  and  fully  dis- 
charge the  duties"  is  not  complied 
with  by  each  of  said  commissioners 
taking  an  oath  to  perform  the  du- 
ties, "to  the  best  of  his  ability." 
The  court  in  this  case  said  in  part 
that  whatever  steps  the  legislature 
prescribed  to  be  taken  in  connec- 


tion with  the  expense  of  local  im- 
provements must  be  strictly  pur- 
sued and  any  of  them  cannot  be  de- 
clared by  the  courts  to  be  merely 
directory  or  immaterial. 

Oshkosh  City  R.  Co.  v.  Winne- 
bago  County,  89  Wis.  435.  Laws 
granting  municipalities  power  to 
levy  local  assessments  should  be 
strictly  construed  against  the  exer- 
cise of  the  power  and  in  favor  of 
the  property  owner. 

247  Warren  v.  Postel,  99  Cal.  294; 
Benton  v.  Inhabitants  of  Brookline, 
151  Mass.  250,  23  N.  E.  846;  City 
of  Detroit  v.  Chapin,  112  Mich.  588, 
71  N.  W.  149,  42  L.  R.  .A.  638. 
Where  the  principle  of  benefits  ob- 
tains, an  arbitrary  assessment  will 
be  void.  Foster  v.  Boston  Park 
Com'rs,  131  Mass.  225;  In  re  Wal- 
ter, 75  N.  Y.  354,  reversing  14  Hun, 
148.  The  limitation  in  this  case  to 
an  assessment  not  exceeding  "in 
any  one  case  one-half  the  assessed 
value  of  the  premises."  City  of 
Waco  v.  Chamberlain,  92  Tex.  207,  47 
S.  W.  527,  reversing  (Tex.  Civ.  App.) 
45  S.  W.  191. 

aisKreling  T.  Muller,  86  Cal.  465; 
Dittoe  v.  City  of  Davenport,  74 
Iowa,  66,  36  N.  W.  895.  The  statu- 
tory limitation  applying  to  the  rate 
of  taxation  does  not  affect  a  sew- 
erage tax,  the  cost  of  which  is  paid 
by  an  application  of  the  "frontage 
rule." 

Sears  v.  City  of  Worcester,  180 
Mass.  274,  62  N.  E.  269;  State  v. 
Judges  of  District  Ct.,  51  Minn.  539, 
53  N.  W.  800,  55  N.  W.  122.  Where 
a  charter  provides  that  seventy-five 
per  cent,  of  the  amount  required  for 
a  street  improvement  shall  be  as- 


792 


PUBLIC  REVENUES. 


§  340 


and  collected  to  pay  the  cost  of  a  given  improvement  or  the  lim- 
itation may  consist  of  a  provision  that  the  power  shall  not  be  ex- 
ercised except  at  stated  intervals  of  time.249 

§  340.    Purpose  for  which  exercised. 

Since  the  rule  is  well  established  that  general  taxes  cannot  be 
levied  or  imposed  to  pay  the  cost  of  a  specific  local  improve- 
ment,250 the  converse  of  this  rule  is  also  well  established  that  local 
assessments  or  taxes  cannot  be  levied  or  imposed  to  pay  for  the 
cost  of  construction  or  of  making  an  improvement  of  a  general 
character  or  one  which  results  in  a  general  benefit  and  advantage 
not  only  to  the  individual  whose  property  is  adjacent  to  or  near 
but  also  to  an  equal  extent  to  that  individual  whose  property  may 
be  situated  at  the  remotest  distance  from  the  improvement.251 


sessed  "in  proportion  as  near  as 
may  be"  to  the  benefit  resulting  to 
the  property  or  in  proportion  to  the 
frontage,  an  assessment  is  void 
based  upon  an  arbitrary  rule  tak- 
ing into  account  only  the  proximity 
of  lots  to  the  street  without  regard 
to  other  conditions. 
,  Heman  v.  Wolff,  33  Mo.  App.  200; 
In  re  City  of  New  York,  46  App. 
Div.  52,  61  N.  Y.  Supp.  437;  In  re 
Opening  of  Edgecomb  Road,  36 
Misc.  119,  72  N.  Y.  Supp.  1073;  Hil- 
liard  v.  City  of  Asheville,  118  N.  C. 
845;  Hilliard  v.City  of  Asheville,  118 
N.  C.  845;  Findlay  v.  Frey,  51  Ohio 
St.  390,  38  N.  E.  114;  Pretzinger  v. 
Sunderland,  63  Ohio  St.  132,  57  N. 
E.  1097;  Birdseye  v.  Village  of 
Clyde,  61  Ohio  St  27;  Walsh  v. 
Barren,  61  Ohio  St.  15;  Hays  v.  City 
of  Cincinnati,  62  Ohio  St.  116. 

2*9  Earl  v.  Board  of  Improvement 
of  Morrilton,  70  Ark.  211,  67  S.  W. 
312.  If  there  is  a  deficiency,  how- 
ever, in  the  special  tax  levied  for 
the  making  of  a  certain  improve- 
ment under  Sand.  &  H.  Dig.,  §  5366, 
a  second  levy  may  be  made.  Fiacre 


v.  Jersey  City,  34  N.  J.  Law,  277; 
City  of  Erie  v.  Griswold,  184  Pa. 
435.  The  right  to  exempt  property 
from  such  assessments  which  has 
already  paid  a  paving  tax  may  be 
left  to  the  discretion  of  the  city 
authorities. 

250  Wolfe    v.    McHargue,    88    Ky. 
251,  10  S.  W.  809;  City  of  Wilming- 
ton v.  Yopp,   71  N.   C.   76;    City  of 
Raleigh  v.   Peace,   110  N.  C.  32,  17 
L.  R.  A.  330;    Murtaugh  v.  City  of 
Paterson,  45  N.  J.  Law,  267;  Rhine- 
lander    v.    City    of    New    York,    24 
How.  Pr.   (N.  Y.)   304. 

251  City    of   Chicago   v.    Law,    144 
111.   569,    33   N.   E.   855.     The  power 
to    make    a    local    improvement    by 
special   assessment   does    not    grant 
authority    to   levy   such    a   tax   for 
the  purpose  of  widening  the  Chica- 
go  River.     The  improvement  of  an 
unnavigable  stream   for  the  benefit 
of  commerce  not  being  a  local  im- 
provement but  one  resulting  in  the 
general    benefit    and    advantage    of 
the  whole  community. 

City  of  Chicago  v.  Blair,  149  111. 
310,  24  L.  R.  A.  412;    Illinois  Cent. 


§  340a 


SPECIAL  ASSESSMENTS. 


793 


A  local  assessment,  therefore,  is  only  valid  or  legal  when  levied 
to  pay  the  cost  of  a  local  improvement  in  its  restricted  sense. 

(a)  What  not  considered  local  improvements.  Applying  the 
rule  thus  given  above,  courts  have  held  that  a  local  tax  or  assess- 
ment cannot  be  levied  for  the  construction  of  a  court  house,252 
public  market,253  public  school  house,25*  or  other  buildings  of  a 


R.  Co.  v.  City  of  Decatur,  154  111. 
173.  The  power  to  make  a  local  im- 
provement carries  with  it  the  im- 
plied power  to  declare  what  are 
local  improvements  by  the  munici- 
pal authorities;  however,  their  de- 
cision in  this  respect  cannot  be  arbi- 
trarily made,  not  in  good  faith  or 
without  reference  to  benefits  de- 
rived from  the  construction  of  the 
improvement. 

Village  of  Morgan  Park  v.  Wis- 
wall,  155  111.  262.  Where  the  right 
is  granted  to  make  local  improve- 
ments, the  municipal  authorities 
have  the  power  though  not  a  con- 
clusive one  to  declare  what  im- 
provements are  local.  Hewes  v. 
Glos,  170  111.  436.  The  determina- 
tion of  whether  a  certain  improve- 
ment is  local  or  general  in  its  na- 
ture is  for  the  corporate  authorities 
to  decide.  A  decision,  however,  is 
subject  to  review  by  the  courts. 

Conger  T.  Graham,  11  Ky.  L.  R. 
12,  11  S.  W.  467.  The  improvement 
of  a  county  road  must  be  paid  for 
by  the  whole  county.  Louisville 
Steam  Forge  Co.  v.  Mehler,  23  Ky. 
L.  R.  1335,  64  S.  W.  396,  652.  The 
increased  cost  of  an  improvement 
by  the  construction  of  a  street  un- 
der railroad  tracks  cannot  be  char- 
ged upon  abutting  property.  City 
of  Baltimore  v.  Hanson,  61  Md.  462. 
A  declaration  in  the  ordinance  pro- 
viding for  the  opening  of  a  street, 
that  it  is  for  the  general  public 
benefit  or  convenience  necessitates 
the  payment  of  the  cost  of  the  im- 


provement from  the  general  funds. 

Deals  v.  Inhabitants  of  Brookline, 
174  Mass.  1,  54  N.  E.  339;  Sears  v. 
Street  Com'rs  of  Boston,  180  Mass. 
274,  62  N.  E.  397;  Rogers  v.  City 
of  St.  Paul,  22  Minn.  494;  State  v. 
Ramsey  County  Dist.  Ct.,  33  Minn. 
295.  The  fact  that  the  improve- 
ment also  benefits  property  not  in 
the  ward  of  a  city  where  the  local 
improvement  is  made  does  not  de- 
stroy its  character  as  such.  All 
local  improvements  necessarily  re- 
sult in  a  benefit,  though  to  a  slifU- 
extent,  to  all  property  unless  very 
remotely  situated  from  the  local- 
ity of  the  improvement. 

Smith  v.  City  of  St.  Joseph,  122 
Mo.  643,  27  S.  W.  344;  Lasbury  v. 
McCague,  56  Neb.  220,  76  N.  W.  862. 
A  special  assessment  is  illegal  when 
levied  for  the  purpose  of  abating  a 
nuisance  created  by  the  municipal- 
ity upon  the  property  assessed  to 
pay  for  its  removal.  Deady  v.  Vil- 
lage of  Lyons,  39  App.  Div.  139,  57 
N.  Y.  Supp.  448;  Ellwood  v.  City  of 
Rochester,  122  N.  Y.  229;  In  re 
Crawford's  Estate,  14  Phila.  (Pa.) 
323;  In  re  Washington  Ave.,  69  Pa. 
352;  Weeks  v.  City  of  Milwaukee, 
10  Wis.  242;  Miller  v.  City  of  Mil- 
waukee, 14  Wis.  642.  The  con- 
struction of  a  break  water  is  not  a 
local  improvement. 

252  McLean     County     v.     City    of 
Bloomington,    106    111.    209;    Adams 
County   v.   City  of  Quincy,   130   111. 
566. 

253  in      Massachusetts     the      rule 


794 


PUBLIC  REVENUES. 


340b 


similar  character,  or  a  plant  for  supplying  water255  and  light256 
to  the  entire  municipality,  or  the  construction  and  repair  of  large 
sewers,267  or  water  mains268  designated  as  the  main  arteries  of  a 
general  system. 

(b)  What  regarded  as  local  improvements.    On  the  contrary, 
the  opening,250  paving  or  macadamizing,260  grading,261  curbing 


seems  to  be  otherwise.  Spaulding 
v.  City  of  Lowell,  40  Mass.  (23 
Pick.)  71;  Peterson  v.  City  of  New 
York,  4  E.  D.  Smith  (N.  Y.)  413. 

254  Education  is.  a  public  purpose 
and  as  such  all  the   instrumentali- 
ties necessary  to  promote  it  should 
be    paid    for    by    general    taxation. 
Vanover  v.  Davis,  27  Ga.  354;   Pub- 
lic School  Com'rs  v.  Allegany  Coun- 
ty Com'rs,  20  Md.  449. 

255  McChesney  T.  Village  of  Hyde 
Park,    151    111.    634,    37    N.    E.    858. 
The   cost   of    operating    a   pumping 
plant  for  drainage  purposes  cannot 
be  made  by  local  assessments.    Vil- 
lage   of   Morgan   Park    v.    Wiswall, 
155    111.    262;    Hughes    v.    City    of 
Momence,    163    111.    535;    Hewes    v. 
Glos,  170  111.  436;    In  re  Protestant 
Episcopal    Public    School,    40    How. 
Pr.    (N.  Y.)   198;    Moran  v.  Thomp- 
son,  20  Wash.  525,  56  Pac.   29. 

256  Ewart  v.   Village    of   Western 
Springs,   180   111.   318.     The  cost  of 
that    portion    of    an    electric    light 
plant    which    is    immediately    used 
for  the  lighting  of  streets  5s  proper- 
ly chargeable  against  property  ben- 
efited.   But  see,  however,  the  case  of 
Mitchell   v.   City   of   Negaunee,   113 
Mich.  359,  71  N.  W.  646,  38  L.  R.  A. 
157. 

2"  Alley  v.  City  of  Lebanon,  146 
Ind.  125,  44  N.  E.  1003.  That  part 
of  the  cost  of  a  general  sewer  which 
exceeds  the  cost  of  a  local  sewer 
must  be  paid  by  the  owners  of  all  the 
property  benefited,  the  equivalent 
cost  of  a  local  sewer  can  be  charged 


to  abutting  owners.  City  of  Bos- 
ton v.  Shaw,  42  Mass.  (1  Mete.) 
130;  Sears  v.  Street  Com'rs  of  Bos- 
ton, 173  Mass.  350,  53  N.  E.  876. 
The  construction  and  management 
of  a  general  sewerage  system  for 
an  entire  city  should  be  raised  by 
general  taxation  rather  than  spe- 
cial assessments. 

Ayer  v.  City  of  Somerville,  143 
Mass.  585;  Sherwood  v.  City  of  Du- 
luth,  40  Minn.  22;  Hill  v.  Swing- 
ley,  159  Mo.  45,  60  S.  W.  114.  The 
character  of  the  sewer  as  a  public 
or  district  one  is  determined  by  its 
location  and  use  as  well  as  by  its 
dimensions  and  the  materials  of 
which  constructed.  McClosky  v. 
Chamberlin,  37  N.  J.  Law,  388; 
Haag  v.  City  of  Mt.  Vernon,  41  App. 
Div.  366,  58  N.  Y.  Supp.  581;  City 
of  Toledo  v.  Brown,  2  Ohio,  N.  P. 
45;  Harrisburg  v.  Cummings,  6  Pa. 
Dist.  R.  437;  Witman  v.  City  of 
Reading,  169  Pa.  375;  In  re  Park 
Ave.  Sewers,  169  Pa.  433. 

258  Parsons  v.   District   of   Colum- 
bia, 170  U.  S.  45.    Where  the  statu- 
tory authority,  however,  is  for  the 
levy   of   an   assessment   to   pay   the 
cost  of  laying  water  mains  and  to 
raise  a  fund  for  keeping  the  system 
in  repair,  an  assessment  which  ex- 
ceeds the  actual  cost  of  laying  the 
mains    is     not     invalid.     Swain     v. 
City  of  Philadelphia    (Pa.)    13   Atl. 
545. 

259  Lent   v.   Tillson,   72    Cal.    404; 
People  v.  Villase  of  Hyde  Park.  117 
111.  462;    Sears  v.  Street  Com'rs  of 


§   340b                               SPECIAL  ASSESSMENTS.  795 

and  guttering,262  sprinkling263  or  general  improvement264  of  streets 
and  highways,  the  running  of  water  pipes  and  mains,265  or  placing 

Boston,    180    Mass.    274,    62    N.    E.  etc.,  of  a  street  does  not  authorize 

397;    Fail-child  v.  City  of  St.  Paul,  the  levy  of  a  special  assessment  to 

46  Minn.  540.     The  cost  of  land  for  pay  for  the  cost  of  building  or  re- 

the  opening  of  a  street  where  a  fee  pairing  a  retaining  wall  to  sustain 

is  taken  is  a  local  improvement  for  the    street    grade.     This    must    be 

which     local     assessments     can     be  paid  for  from  the  general  funds, 

levied.     Aldridge    v.     Essex    Public  Mason   v.  City  of   Sioux  Falls,  2 

Road    Board,    46    N.    J.    Law,    126;  S.  D.   640,  51  N.  W.  770.     The  cost 

Smith  v.  City  of  Toledo,  24  Ohio  St.  of   curbing   cannot  be   included  un- 

126.     Under    Swan   &   S.   St.  '834,   a  der  authority  for  grading  a  street, 

street  extension  is  not  necessarily  a  City     of    Vancouver    v.   Wintler,    8 

street   improvement.  Wash.   378.     Where   property  is  as- 

aeo  Alameda  Macadamizing  Co.  v.  sessed  for  the  grading  of  a  street 
Williams,  70  Cal.  534,  12  Pac.  530;  which  in  this  case  consists  of  low- 
Vane  v.  City  of  Evanston,  150  111.  ering  the  street  lines,  property 
616,  37  N.  E.  901;  Enos  v.  City  of  fronting  on  the  street  to  which  the 
Springfield,  113  111.  65;  Lowe  v.  material  excavated  is  taken  cannot 
White  County  Com'rs,  156  Ind.  163,  be  assessed  for  filling  the  street. 
59  N.  E.  466;  Maybin  v.  City  of  202  McSherry  v.  Wood,  102  Cal. 
Biloxi,  77  Miss.  673,  28  So.  566.  A  647,  36  Pac.  1010;  Ryan  v.  Altschul, 
general  tax  levied  on  all  the  taxa-  103  Cal.  174,  37  Pac.  339;  Job  v. 
ble  property  of  the  city  for  the  pur*  People,  193  111.  609.  The  power  to 
pose  of  paving  one  of  its  streets  in  construct  sidewalks  by  special  tax- 
the  business  portion  of  a  town  is  es  on  abutting  property  confers  no 
not  invalid  since,  as  the  court  say:  power  for  the  curbing  of  the  street. 
"The  improvement  resulting  in  the  McNamara  v.  Estes,  22  Iowa,  246. 
convenience  and  advantage  of  all  The  authority  to  macadamize  a 
the  citizens,  it  was  proper  that  it  street  includes  the  right  to  levy  a 
should  be  a  common  charge  on  all."  special  assessment  for  "trimming" 
Hutchinson  v.  City  of  Pittsburg,  72  and  "guttering."  City  of  Louis- 
Pa.  320.  ville  v.  Tyler,  111  Ky.  588,  64  S.  W. 

26iwilcoxon  v.  City  of  San  Luis  415,   65  S.  W.   125;   Robins  v.  New 

Obispo,    101    Cal.    508,    35   Pac.    988.  Brunswick  St.  &   Sewer  Com'rs,   44 

The  authority  for  the  widening  of  N.  J.  Law,  116;  City  of  Philadelphia 

a  street  cannot  include  its  grading  v.  Meighan,  159  Pa.  495. 

and    graveling.     City    of    Baltimore  263  Reinken  v.  Fuehring,  130  Ind. 

v.    Eschbach,   18   Md.    276;    State  v.  382,   30  N.  E.  414,  15  L.  R.  A.   624. 

Ramsey  County  Dist.  Ct,  33  Minn.  This    case    holds    that    sweeping    a 

295;  Ogden  v.  City  of  Hudson,  29  N,  street  as  well  as  sprinkling  it  is  a 

J.  Law   (5  Dutch.)   104;   Vanatta  v.  local    improvement    to    be    paid    by 

City   of  Morristown,  34  N.  J.  Law,  the    levy    of   a    special    assessment. 

445;     Brenn    v.    City    of    Troy,    60  Stark  v.  City  of  Boston,   180   Mass. 

Barb.     (N.    Y.)     417;      Borough     of  293,  62  N.  E.  375.     Assessments  for 

Steelton  v.  Booser,  162  Pa.  630,   29  such  purposes  must  be  based  upon 

Atl.    654.       Authority    for    grading,  the    doctrine    of    benefits.     Trustees 


796                                          PUBLIC  REVENUES.  §  340b 

of  Phillips  Academy  v.  Inhabitants  out,  the  future  value  of  the  property 
of  Andover,  175  Mass.  118,  48  L.  R.  is  not  enhanced  by  it,  any  more 
A.  550.  than  it  is  by  street  sprinkling 
State  v.  Reis,  38  Minn.  371.  The  when  that  ceases.  Neither  do  we 
court  in  its  opinion  by  Mitchell,  J.,  see  that  it  makes  any  difference 
said  in  part:  "The  principal  ques-  whether  the  substance  applied  to 
tion  in  this  case  is  whether  sprink-  the  surface  of  the  street  is  wood, 
ling  a  street  is  a  'local  improve-  which  has  to  be  renewed  every  few 
ment'  within  the  meaning  of  sec-  years,  or  water,  which  has  to  be 
tion  one,  article  nine  of  the  consti-  applied  daily.  Each  benefits  the  ad- 
tution  for  which  an  assessment  may  jacent  property  as  long  as  it  lasts 
be  levied  upon  the  property  front-  and  no  longer.  It  is  not  the  agency 
ing  upon  the  street  without  regard  used,  or  its  comparative  durability, 
to  its  cash  valuation.  *  *  *  but  the  result  accomplished,  which 
Sprinkling  a  street  renders  the  must  determine  whether  a  work  is 
property  fronting  on  it  more  desir-  an  improvement  in  the  sense  in 
able  and  hence  more  valuable  for  which  that  word  is  here  used.  The 
occupancy, — a  benefit  not  shared  in  only  essential  elements  of  a  'local 
by  other  property.  The  relator's  improvement'  are  those  which  the 
main  contention,  however,  is  that  term  itself  implies,  viz.,  that  it  shall 
street  sprinkling  is  not  an  'im-  benefit  the  property  on  which  the 
provement,'  within  the  meaning  of  cost  is  assessed  in  a  manner  local 
this  section  of  the  constitution,  be-  in  its  nature,  and  not  enjoyed  by 
cause  it  lacks  the  element  of  per-  property  generally  in  the  city.  If 
manence;  that  its  results  are  tran-  it  does  this, — rendering  the  proper- 
sient;  that,  to  constitute  an  im-  ty  more  attractive  and  comfortable, 
provement,  there  must  be  some  and  hence  more  valuable  for  use, 
work  or  structure,  such  as  a  pave-  — then  it  is  an  improvement.  That 
ment,  sidewalk,  or  the  like,  that  the  regular  and  systematic  sprink- 
will  remain  after  the  labor  is  per-  ling  of  a  street  has  this  effect  upon 
formed,  and  permanently  enhance  the  property  fronting  on  it  is  a 
the  value  of  the  property.  But,  if  matter  of  common  knowledge.  This 
permanence  or  durability  is  to  be  construction  is  fully  warranted  by 
the  test,  how  long  must  the  benefi-  the  definitions  of  the  word  'in> 
cial  results  last  in  order  to  consti-  provement'  given  by  lexicographers, 
tute  an  improvement?  It  certainly  It  has  been  defined  as  'that  by 
will  not  be  claimed  that  the  work  which  the  value  of  anything  is  in- 
must  be  eternal  in  duration,  or  im-  creased,  its  excellence  enhanced,  or 
perishable  in  character.  We  are  the  like;'  or  'an  amelioration  of 
unable  to  see  any  difference  in  prin-  the  condition  of  property  affected 
ciple  between  the  work  of  street  by  the  expenditure  of  labor  or 
sprinkling,  the  results  of  which,  un-  money,  for  the  purpose  of  render- 
less  repeated,  last  but  a  day,  and  ing  it  useful  for  other  purposes 
the  construction  of  a  block  pave-  than  those  for  which  it  was  origin- 
ment  or  wooden  sidewalk,  which  ally  used,  or  more  useful  for  the 
wears  out  or  decays,  and  has  to  be  same  purposes.' " 
rebuilt,  every  few  years.  When  a  In  the  recent  case  of  Maydwell 
pavement  or  sidewalk  has  worn  v.  City  of  Louisville,  25  Ky.  L.  R. 


§  340b 


SPECIAL  ASSESSMENTS. 


797 


1062,  76  S.  W.  1091,  it  was  held  that 
the  levying  of  a  tax  for  the  sprink- 
ling of  city  streets  was  not  uncon- 
stitutional as  being  levied  for  a 
purpose  not  public  in  its  charac- 
ter. The  court  say:  "It  cannot 
be  doubted  at  this  day,  that  what- 
ever is  necessary  for  the  preserva- 
tion of  the  public  health  and  safety 
is  a  public  purpose,  within  the 
meaning  of  section  171  of  the  Con- 
stitution. For  the  purpose  of  fur- 
nishing the  citizens  with  pure  wa- 
ter, waterworks  may  be  established, 
and  public  wells  dug  and  main- 
tained. That  the  public  highways 
may,  without  peril,  be  traveled  at 
night,  they  may  be  lighted  at  the 
public  expense.  That  the  people 
may  have  convenient  and  whole- 
some places  for  resort,  public  parks 
may  be  established  and  kept.  For 
the  education  of  the  young,  public 
schools  are  conducted.  For  the  sup- 
port of  the  indigent  aged,  alms- 
houses  are  provided.  For  the  refor- 
mation of  vicious  young,  reforma- 
tories are  maintained.  For  the  re- 
lief of  the  sick,  hospitals  are  pro- 
vided. For  the  protection  of  the 
public  health,  nuisances  are  abated, 
streets  and  sewers  are  flushed  and 
cleaned.  As  a  protection  against 
conflagration,  fire  departments  are 
established;  and  as  a  safeguard  for 
life  and  property,  police  depart- 
ments are  organized.  It  cannot  be 
successfully  denied  that  the  dust 
upon  the  streets  of  large  cities  is  a 
fruitful  source  of  disease,  as  well  as 
of  annoyance,  to  the  citizens.  The 
same  principle  which  authorizes 
the  streets  to  be  cleaned  for  the 
purpose  of  preventing  noisome  odors 
and  epidemics  of  disease  authorizes 
them  to  be  sprinkled."  But  see 
City  of  Chicago  v.  Blair,  149  111.  310, 
24  L.  R.  A.  412,  where  it  is  held 


that  street  sprinkling  under  Illinois 
Statutes  is  not  a  local  improvement 
the  cost  of  which  can  be  charged 
against  the  property  benefited.  See, 
also,  New  York  Life  Ins.  Co.  v. 
Prest,  71  Fed.  815,  where  the  court, 
after  citing  with  approval  the  Illi- 
nois case  above  cited  and  quoting 
from  its  opinion  says:  "Under  such 
ordinances,  streets  are  sprinkled  in 
front  of  vacant  lots  on  which  are 
neither  house  nor  any  'living  crea- 
ture.' It  could  hardly  be  said,  with 
reason,  that  running  a  sprinkling 
cart  now  and  then  in  front  of  such 
a  lot  adds  to  its  market  value.  Nor 
is  there,  in  such  occasional  'laying 
of  the  dust,'  any  semblance  of  per- 
manency. It  is  as  evanescent  as  the 
early  and  the  later  dew,  and,  in  my 
judgment,  it  is  no  more  within  the 
power  of  a  municipality  thus  to  cre- 
ate liens  on  the  citizen's  property, 
than  to  hire  a  'rain  maker'  to  vex 
the  skies  for  refreshing  showers, 
and  charge  the  lots  adjacent  to  the 
raindrops  with  the  cost  thereof.  As 
the  sprinkling  of  the  public  high- 
ways of  a  city  like  the  cleaning 
thereof,  contributes  much  to  the 
comfort  and  enjoyment  of  the  pub- 
lic, its  cost  should  be  made  a  gen- 
eral, and  not  a  special  burden." 

Kansas  City  v.  O'Connor,  82  Mo. 
App.  655.  A  city  cannot  impose  a 
special  assessment  on  abutting 
property  for  sprinkling  a  street. 
The  court  said  in  part  that  the  ben- 
efit received  was  too  "ephemeral, 
and  intangible  to  be  denominated 
an  improvement  to  the  property"  or 
to  constitute  a  local  improvement. 

26*  City  of  Bridgeport  v.  Giddings, 
43  Conn.  304;  Butz  v.  Kerr,  123  111. 
659,  14  N.  E.  671,  following  People 
v.  La  Salle  County  Sup'rs,  111  I1L 
527;  Shannon  v.  Village  of  Hins- 
dale,  180  111.  202;  Yeakel  v.  City  of 


798 


PUBLIC  REVENUES. 


§  340b 


of  hydrants,  construction  of  viaducts,266  local  sewers,267  ditches  or 
drains,-68  or  the  running  of  sewer  pipes,269  the  construction  or  re- 


Lafayette,  48  Ind.  116;  Cook  v.  Slo- 
cum,  27  Minn.  509.  Widening  and 
straightening  a  street  is  a  local  im- 
provement within  art.  9,  §  1,  Minne- 
sota constitution. 

State  v.  Ensign,  54  Minn.  372.  A 
bridge  constructed  for  the  purpose 
of  avoiding  a  grade  crossing  over 
railroad  tracks  is  a  local  improve- 
ment the  cost  of  which  can  be  de- 
frayed by  special  assessments  upon 
property  benefited.  See,  also,  Kelly 
v.  City  of  Minneapolis,  57  Minn.  294, 
26  L.  R.  A.  92,  as  holding  that  an 
agreement  between  the  city  and  rail- 
road company  in  regard  to  the  con- 
struction of  viaducts  to  avoid  grade 
crossings  does  not  relieve  the  own- 
ers of  property  benefited  by  a  change 
of  street  grade  from  their  liability 
for  special  assessments  based  upon 
benefits  received  by  the  construc- 
tion of  the  viaduct. 

Sperry  v.  Flygare,  80  Minn.  325, 
83  N.  W.  177,  49  L.  R.  A.  757.  A 
rural  highway  is  not  a  local  im- 
provement and  local  assessments 
cannot,  therefore,  be  imposed  on 
abutting  property  to  pay  for  its  con- 
struction or  improvement. 

Morse  v.  City  of  West-Port,  110 
Mo.  502,  19  S.  W.  831;  Heath  v.  Mc- 
Crea,  20  Wash.  342,  55  Pac.  432; 
Tifft  v.  City  of  Buffalo,  82  N.  Y. 
204;  Barker  v.  State,  18  Ohio,  514. 
Under  a  special  charter  provision,  a 
tax  for  the  improvement  of  a  street 
may  be  levied  upon  all  the  lands 
embraced  within  the  corporate  lim- 
its. Berlin  Iron-Bridge  Co.  v.  City 
of  San  Antonio  (Tex.  Civ.  App.)  50 
S.  W.  408.  A  bridge  spanning  a 
river  where  it  crosses  a  city  street 
is  regarded  as  a  street  improve- 
ment. 


265  Palmer  v.  City  of  Danville,  154 
111.  156;  Hughes  v.  City  of  Momence, 
163  111.  535;   Hewes  v.  Glos,  170  111. 
436;    Landon   v.    City    of    Syracuse, 
163  N.  Y.  562,  57  N.  E.  1114.    Where 
a  water  pipe  or  connection  is  put  in 
by    order    of    the    common    council 
without  authority  or  request  of  the 
owners,    it   will    not   be   considered, 
however,  as  an  improvement  but  one 
which   must  be   paid   for  from   the 
general   funds,   following  Alvord   v. 
City   of   Syracuse,    163    N.    Y.    158; 
City  of  Philadelphia  v.  Union  Burial 
Ground  Soc.,  178  Pa.  533;   Smith  v. 
City   of   Seattle,    25   Wash.    300,    65 
Pac.  612. 

266  Louisville  &  N.  R.  Co.  v.  City 
of  East  St.  Louis,  134  111.  656,  25  N. 
E.  962;  City  of  Bloomington  v.  Chi- 
cago  &   A.    R.    Co.,   134    111.    451,    26 
N.  E.  366.     A  railroad  bridge  across 
a  street  cannot  be  paid  for  by  spe- 
cial taxation. 

267  Appeal    of    Hunter,    71    Conn. 
189;  English  v.  City  of  Wilmington, 
2  Marv.   (Del.)    63,  37  Atl.  158;   Mc- 
Chesney    v.    Village   of   Hyde   Park 
(111.)    28  N.  E.  1102;    Payne  v.  Vil- 
lage   of   South    Springfield,    161    111. 
285,  44  N.  E.  105;   Mason  v.  City  of 
Chicago,  178  111.  499;  Hall  v.  Street 
Com'rs  of  Boston,  177  Mass.  434,  59 
N.    E.    68;    Peck  v.   City   of   Grand 
Rapids,    125    Mich.    416,    84    N.    W. 
614.    Under  a  charter  provision  au- 
thorizing   proceedings    for    grading 
and  graveling  a  street,  the  city  can- 
not  construct  a   sewer.     Heman   v. 
Schulte,  166  Mo.  409,  66  S.  W.  163. 
The    question    of    benefits    received 
cannot  be  raised  in  a  collateral  at- 
tack.    Schlapfer  v.  Town  of  Union, 
53   N.  J.   Law,   67,   20  Atl.   894;    De 
Witt  v.  City  of  Elizabeth,  56  N.  J. 


§  340b 


SPECIAL,  ASSESSMENTS. 


799 


pair   of   sidewalks,270   the    establishment    of   park   ways,   public 
grounds  or  parks,271  the  construction  of  safe  harbors,  landings, 


Law,  119,  27  Atl.  801;  Post  v.  City 
of  Passaic,  56  N.  J.  Law,  421,  28 
Atl.  553;  People  v.  City  of  Buffalo, 
54  App.  Div.  629,  66  N.  Y.  Supp. 
1139,  following  33  App.  Div.  654,  57 
N.  Y.  Supp.  1144;  People  v.  Village 
of  Yonkers,  39  Barb.  (N.  Y.)  266; 
Jones  v.  Holzapfel,  11  Okl.  405,  68 
Pac.  511;  Woodhouse  v.  City  of  Bur- 
lington, 47  Vt.  300. 

268  Peake  v.  City  of  New  Orleans, 
139  U.  S.  342,  377;  City  of  San  Diego 
v.  Linda  Vista  Irr.  Dist,  108  Cal. 
189,  35  L.  R.  A.  33;  McChesney  v. 
Village  of  Hyde  Park,  151  111.  634, 
37  N.  E.  858;  Hatch  v.  Pottawatta- 
mie  Co.,  43  Iowa,  442;  Davidson  v. 
City  of  New  Orleans,  34  La.  Ann. 
170.  Where  it  is  shown  that  the 
property  was  actually  injured  by  the 
alleged  drainage,  the  special  assess- 
ment cannot  be  collected.  Davies  v. 
City  of  New  Orleans,  40  La.  Ann. 
806;  Beals  v.  Inhabitants  of  Brook- 
line,  174  Mass.  1,  54  N.  E.  339;  Gray 
v.  Board  of  Aldermen  of  Boston,  139 
Mass.  328;  People  v.  Saginaw  Coun- 
ty Sup'rs,  26  Mich.  22.  The  court 
here  held  that  the  power  to  tax  is 
plenary,  but  taxation  implies  public 
interest,  and  in  cases  involving  as- 
sessments it  also  implies  proceedings 
in  pais  in  some  of  which  the  tax- 
payers have  a  right  to  take  part  and 
be  heard;  the  particular  drainage 
legislation,  viz.,  act  of  March  23, 
1871,  was  held  void  because  of  a  dis- 
regard of  such  principles.  State  v. 
Henry,  28  Wash.  38,  68  Pac.  368. 

*«»Cone  v.  City  of  Hartford,  28 
Conn.  363;  Hungerford  v.  City  of 
Hartford,  39  Conn.  279;  McChesney 
v.  Village  of  Hyde  Park  (111.)  28  N. 
E.  1102. 

270  White   v.    People,   94    111.   604; 


Peopie  v.  Yancey,  167  111.  255;  Vil- 
lage of  Western  Springs  v.  Hill,  177 
111.  634;  People  v.  Field,  197  111.  568. 
A  grass  plot  on  each  side  of  a  walk 
cannot  be  sodded  and  maintain- 
ed by  special  assessments  on  abut- 
ting property  under  the  legislative 
authority  to  construct  sidewalks. 
City  of  Des  Moines  v.  Stephenson, 
19  Iowa,  507;  Sloan  v.  Beebe,  24 
Kan.  343;  Dickinson  v.  City  Coun- 
cil of  Worcester,  138  Mass.  555.  The 
expense  of  grading  for  a  sidewalk 
cannot  be  charged  against  abutters 
under  authority  for  the  levy  of  an 
assessment  to  pay  the  cost  of  "pav- 
ing a  sidewalk." 

Kemper  v.  King,  11  Mo.  App.  116; 
Inhabitants  of  Butler  v.  Robinson, 
75  Mo.  192;  Flint  v.  Webb,  25  Minn. 
93;  Grant  v.  Bartholomew,  58  Neb. 
839;  Sigler  v.  Fuller,  34  N.  J.  Law, 
227;  Wright  v.  Briggs,  2  Hill  (N. 
Y.)  77;  Pomfrey  v.  Village  of  Sara- 
toga Springs,  104  N.  Y.  459;  Folms- 
bee  v.  City  of  Amsterdam,  142  N.  Y. 
118.  If  items  are  included  in  a  local 
assessment  not  assessable  on  the 
property,  it  will  render  void  the  en- 
tire assessment. 

In  Mauldin  v.  City  Council  of 
Greenville,  53  S.  C.  285,  43  L.  R.  A. 
101,  it  is  held  that  special  assess- 
ments cannot  be  levied  for  the  im- 
provement of  city  sidewalks  under 
Const,  art.  10,  §  5,  which  requires 
all  property  to  be  taxed  uniformly 
and  further  requiring  that  all  taxa- 
tion by  municipal  corporations  shall 
be  for  municipal  purposes.  Lufkin 
v.  City  of  Galveston,  58  Tex.  545. 

2Ti  Wilson  v.  Lambert,  168  U.  S. 
611;  Matthews  v.  Kimball,  70  Ark. 
451,  66  S.  W.  651,  69  S.  W.  547; 
Heller  v.  Garden  City,  58  Kan.  263, 


800 


PUBLIC  REVENUES. 


6   340b 


wharves  and  docks,272  have  each  been  considered  local  improve- 
ments of  such  a  character  that  the  cost  of  their  construction 
or  making  should  be  assessed  against  the  property  benefited  in 
proportion  to  the  benefits  received.  The  general  rule  in  regard 
to  the  construction  of  all  the  improvements  noted  above  in  the 
absence  of  special  charter  or  statutory  provisions  is  that  the  origi- 
nal cost  of  such  improvement  must  be  borne  by  local  assessments 
levied  upon  property  benefited;  after  such  original  construction 
the  cost  of  making  the  usual  and  necessary  repairs  must,  however, 
be  paid  from  the  general  corporate  funds  or  revenues.273  The 
power  to  construct  local  and  public  improvements  outside  of  the 
corporate  limits  in  the  absence  of  an  express  legislative  grant  is 


48  Pac.  841.  A  city  may  levy  special 
assessments  for  the  planting  and 
maintenance  of  shade  trees  on  its 
public  streets.  West  Chicago  Park 
Com'rs  v.  Farber,  171  111.  146;  Chi- 
cago Title  &  Trust  Co.  v.  Town  of 
Lake  View,  187  111.  622;  Davies  v. 
City  of  New  Orleans,  40  La.  Ann. 
806;  Foster  v.  Boston  Park  Com'rs, 
131  Mass.  225;  Id.,  133  Mass.  321; 
State  v.  Brill,  58  Minn.  152;  State  v. 
St.  Louis  County  Dist.  Ct.,  66  Minn. 
161,  68  N.  W.  860;  State  v.  Ramsey 
County  Dist.  Ct,  75  Minn.  292,  77 
N.  W.  968;  Kansas  City  v.  Ward,  134 
Mo.  172,  35  S.  W.  600;  Kansas  City 
v.  Bacon,  147  Mo.  259,  48  S.  W.  860; 
In  re  Beechwood  Ave.,  194  Pa.  86. 

272  Webb  v.  City  of  Demopolis,  95 
Ala.  116,  21  L.  R.  A.  62;  City  of  San 
Pedro  v.  Southern  Pac.  R.  Co.,  101 
Cal.  333;  City  of  Chicago  v.  Rum- 
sey,  87  111.  348  (river  tunnel) ;  Li- 
gare  v.  City  of  Chicago,  139  111.  46; 
Snyder  v.  Town  of  Rockport,  6  Ind. 
237;  Shepherd  v.  Municipality  No.  3, 
6  Rob.  (La.)  349;  Town  of  St.  Mar- 
tinsville  v.  The  Mary  Lewis,  32  La. 
Ann.  1293;  Com.  v.  Tucker,  19  Mass. 
(2  Pick.)  44;  City  of  Galveston  v. 
Menard,  23  Tex.  349;  Backus  v.  City 
of  Detroit,  49  Mich.  110;  City  of 
Hannibal  v.  Winchell.  54  Mo.  172: 


Siarshall  v.  Guion,  11  N.  Y.  (1 
Kern.)  461;  Miller  v.  City  of  Mil- 
waukee, 14  Wis.  b42.  Breakwater. 
But  the  following  authorities  deny 
the  power  in  respect  to  the  particu- 
lar improvement  suggested:  Town 
of  Newport  v.  Batesville  &  B.  R.  Co., 
58  Ark.  270  (levee) ;  Spengler  v. 
Trowbridge,  62  Miss.  46  (harbor). 

273  City  of  New  Haven  v.  Whit- 
ney, 36  Conn.  373.  The  macadamiz- 
ing of  a  street  held  not  a  public  im- 
provement but  a  "maintaining"  of 
the  street  to  be  paid  for  from  the 
general  fund.  See  McChesney  v. 
Village  of  Hyde  Park,  151  111.  634; 
Crane  v.  West  Chicago  Park  Com'rs, 
153  111.  348,  26  L.  R.  A.  311;  Bullitt 
v.  Selvage,  20  Ky.  L.  R.  599,  47  S. 
W.  255;  Holzhauer  v.  City  of  New- 
port, 94  Ky.  396;  Robertson  v.  City 
of  Omaha,  55  Neb.  718,  76  N.  W.  442, 
44  L.  R.  A.  534;  Wilson  v.  Inhabi- 
tants of  Trenton,  61  N.  J.  Law,  599, 
40  Atl.  575,  44  L.  R.  A.  540;  In  re 
Smith,  99  N.  Y.  424.  Increasing  the 
width  of  a  sidewalk  is  a  "repave- 
ment"  within  the  meaning  of  that 
term  as  found  in  laws  relating  to 
sidewalks  in  New  York  City.  Bor- 
ough of  Steelton  v.  Booser,  162  Pa. 
630. 


§  341 


SPECIAL  ASSESSMENTS. 


801 


universally  denied.  The  rule  applies  to  the  opening  of  a  street, 
the  repairing  of  a  highway,  the  grading  of  an  avenue,  or  the  con- 
struction of  a  bridge.27* 

§  341.    Extent  of  exercise. 

The  power  to  construct  a  local  improvement,  when  it  exists,  can 
be  exercised  to  any  extent  within  its  full  limit  as  granted;  the 
extent  being  dependent  upon  the  discretion  of  the  officials  to 
whom  is  delegated  this  duty.275  One-half  the  lateral  width  of  a 
street  may  therefore  be  paved  where  the  authority  exists  to  make 
such  improvement,  the  cost  to  be  paid  by  the  front  foot  or  run- 
ning foot  assessment.276  Improvements  to  be  properly  chargea- 
ble against  the  property  benefited  must  be  in  or  upon  a  highway 
legally  laid  out  or  dedicated.277 


274  Municipality  No.  1  v.  Young,  5 
La.  Ann.  362;   City  of  Baltimore  v. 
Porter,   18   Md.   284;    City  of   Cam- 
bridge v.  Railroad  Com'rs,  153  Mass. 
161.     But   see   the   following    cases 
where  either  an  express  grant  exist- 
ed or  the  power  was  held  as  implied 
from  peculiar  conditions  or  circum- 
stances:    Cochran     v.     Village     of 
Park  Ridge,  138  111.   295,  following 
Shreve   v.  Town  of  Cicero,  129   111. 
226;   Gallon  v.  City  of  Jacksonville, 
147  111.  113;  Dively  v.  City  of  Cedar 
Falls,  27  Iowa,  227;  City  of  Coldwa- 
ter  v.  Tucker,  36  Mich.  474;    In  re 
East   Syracuse,   20   Abb.   N.   C.    (N. 
Y.)  131. 

275  Dickerson  v.  Franklin,  112  Ind. 
178.     The  use  to  which  property  is 
put    is   immaterial   so   long   as   the 
land  is  of  such  a  character  as  may 
make  it  susceptible  to  the  benefit  to 
be    derived    from    the    construction 
of  a  local  improvement. 

Hall  v.  Street  Com'rs  of  Boston, 
177  Mass.  434,  59  N.  E.  68.  The  power 
to  levy  special  assessments  can  be 
exercised  to  pay  the  cost  of  a  local 
improvement  already  constructed. 


Mayall  v.  City  of  St.  Paul,  30  Minn. 
294,  followed  in  Armstrong  v.  City  of 
St.  Paul,  30  Minn.  299,  which  holds 
that  Minnesota  Sp.  Laws  1874,  re- 
lating to  local  improvements  and 
special  assessments  do  not  authorize 
the  making  of  two  separate  and 
distinct  public  improvements  as  an 
entirety;  the  proceedings,  authori- 
zation and  construction  of  which 
must  be  considered  and  made  sep- 
arately. 

276  Indianapolis  &  V.  R.  Co.  v.  Cap- 
itol Pav.  &  Const.  Co.,  24  Ind.  App. 
114,  54  N.  E.  1076. 

277  City   of  Meriden   v.   Camp,   46 
Conn.  284;    Holliday  v.  City  of  At- 
lanta, 96  Ga.  377;   Village  of  Hyde 
Park  v.  Borden,  94  111.  26;   Holmes 
v.  Village  of  Hyde  Park,  121  111.  128; 
Bodley  v.  Finley's  Ex'r,  23  Ky.  L.  R. 
851,   64   S.   W.   439;    De  Grilleau  v. 
Frawley,   48   La.   Ann.    184.     A  pri- 
vate way  does  not  fall  under  the  op- 
eration of  act  No.  20  of  1882,  §  37, 
relative  to  paving. 

Pierce  v.  Franklin  County  Com'rs, 
63  Me.  252;  City  of  Baltimore  v. 
Hook,  62  Md.  371;  Masonic  Bldg. 


Abb.  Corp.— 51. 


802 


PUBLIC  REVENUES. 


§   341 


Discretionary  power  of  municipal  authorities  to  make  improve- 
ments. Unless  some  statutory  restriction  exists  where  the  power 
to  make  local  or  public  improvements  has  been  granted  to  a  sub- 
ordinate public  agency,  such  power  is  deemed  of  a  discretionary 
character  and  the  action  of  the  municipal  authorities  in  its  rea- 
sonable exercise  or  non-exercise  is  not  subject  to  control  by  the 
courts  or  open  to  judicial  review.278  Courts  will  not,  therefore, 
ordinarily  interfere  in  the  ordering  of  a  local  improvement  on  the 
ground  that  it  is  unnecessary  or  unreasonable  or  that  officers  are 
not  acting  in  good  faith.279  This  official  discretion  may  include 
not  only  the  time  of  making  the  improvement  but  also  its  extent 
and  nature,28*  and  the  material  for  construction.281 


Ass'n  v.  Brownell,  164  Mass.  306; 
Detroit,  M  &  T.  R,  Co.  v.  City  of  De- 
troit, 49  Mich.  47;  Hennessy  v.  City 
of  St.  Paul,  44  Minn.  306;  State  v. 
Dean,  23  N.  J.  Law  (3  Zab.)  335; 
Copcutt  v.  City  of  Yonkers,  59  Hun, 
212,  13  N.  Y.  Supp.  452,  judgment 
affirmed  128  N.  Y.  669;  Heiple  v.  City 
of  East  Portland,  13  Or.  97;  Coxe  v. 
City  of  Philadelphia,  47  Pa.  9;  Reed 
v.  City  of  Erie,  79  Pa.  346;  City  of 
Philadelphia  v.  Ball,  147  Pa.  243; 
City  of  Philadelphia  v.  Thomas' 
Heirs,  152  Pa.  494;  Bishop  v.  Tripp, 
15  R.  I.  466.  But  see  the  following 
cases  either  denying  the  rule  or  hold- 
ing that  where  the  municipality  may 
acquire  in  the  future  the  public  way, 
the  invalidity  of  a  local  assessment 
cannot  be  raised  by  the  property 
owner.  Hunerberg  v.  Village  of 
Hyde  Park,  130  111.  i56;  Leman  v. 
City  of  Lake  View,  131  111.  388;  Coch- 
ran  v.  Village  of  Park  Ridge,  138  111. 
295;  May  wood  Co.  v.  Village  of  May- 
wood,  140  111.  216;  Donovan  v.  Coles, 
33  Mo.  App.  161;  Parker  v.  City  of 
New  Brunswick,  30  N.  J.  Law,  395; 
Jersey  City  v.  Howeth,  30  N.  J.  Law, 
521;  People  v.  Common  Council  of 
Rochester,  5  Lans.  (N.  Y.)  142;  In 
re  McGown,  18  Hun  (N.  Y.)  434; 


Richards  v.  City  of  Cincinnati,  31 
Ohio  St.  506;  Darlington  v.  Com., 
41  Pa.  63. 

278  Harney  v.  Benson,  113  Cal.  314; 
English  v.  City  of  Danville,  150  111. 
92;    Church  v.  People,  179  111.  205; 
Shannon  v.  Village  of  Hinsdale,  180 
111.  202;   Skinker  v.  Heman,  64  Mo. 
App.  441;  Estes  v.  Owen,  90  Mo.  113; 
Barber  Asphalt  Pav.  Co.  v.  French, 
158  Mo.  534,  54  L.  R.  A.  492;  Taintor 
v.    Town    of    Morristown,    33    N.    J. 
Law,  57. 

279  Bacon  v.  City  of  Savannah,  105 
Ga.    62;    Chicago   N.   W.    R.    Co.   v. 
Town  of  Cicero,  154  111.  656;  City  of 
Chicago  v.  Nichols,  177  111.  97;  City 
of  Elkhart  v.  Wickwire,  121  Ind.  331; 
In  re  City  of  Cedar  Rapids,  85  Iowa, 
39;  Miller  v.  Webster  City,  94  Iowa, 
162;  Carr  v.  Dooley,  122  Mass.  255; 
City  of  Detroit  v.  Beecher,  75  Mich. 
454,  4  L.  R.  A.  813;  Morse  v.  City  of 
Westport,  110  Mo.  502;   Id.,  136  Mo. 
276;  Paulson  v.  City  of  Portland,  16 
Or.  450,  1  L.  R.  A.  673;   Oil  City  v. 
Oil  City  Boiler  Works,  152  Pa.  348. 

28o-Lightner  v.  City  of  Peoria,  150 
111.  80;  Murphy  v.  City  of  Peoria, 
119  111.  509;  Brown  v.  Barstow,  87 
Iowa,  344;  Boston  &  M.  R.  Co.  v.  City 
of  Lawrence,  84  Mass.  (2  Allen)  107; 


342 


SPECIAL  ASSESSMENTS. 


803 


§  342.    Discretionary  power  with  reference  to  locating  limits  of 
taxing  district. 

Where  statutory  or  constitutional  authority  exists  for  the 
making  of  local  assessments,  a  discretion  is  usually  vested  in  the 
municipal  authorities  to  divide  their  territory  into  such  taxation 
districts  for  the  construction  of  local  improvements  as  seem  ad- 
visable282 and  the  exercise  of  a  sound  discretion  by  them  will  not 


Dunker  v.  Stiefel,  57  Mo.  App.  379; 
In  re  Protestant  Episcopal  Public 
School,  40  How.  Pr.  (N.  Y.)  198;  Id., 
47  N.  Y.  556;  State  v.  City  of  Por- 
tage, 12  Wis.  562. 

281  Cram  v.  City  of  Chicago,  138 
111.  506;  Cunningham  v.  City  of  Pe- 
oria,  157  111.  499;  Shannon  v.  Village 
of  Hinsdale,  180  111.  202;  Burlington 
&  M.  R.  R.  Co.  v.  Spearman,  12  Iowa, 
112;  Gunning  Gravel  &  Pav.  Co.  v. 
City  of  New  Orleans,  45  La.  Ann. 
911;  City  of  Grand  Rapids  v.  Board 
of  Public  Works,  87  Mich.  113;  Id., 
99  Mich.  392;  Shimmons  v.  City  of 
Saginaw,  104  Mich.  511;  City  of 
Schenectady  v.  Union  College,  144 
N.  Y.  241,  26  L.  R.  A.  614;  City  of 
Philadelphia  v.  Evans,  139  Pa.  483; 
Benson  v.  Village  of  Waukesha,  74 
Wis.  31.  See,  also,  in  addition  to 
the  cases  cited  in  the  last  four  pre- 
ceding notes,  the  following  constru- 
ing generally  the  discretionary  pow- 
er of  municipal  authorities  in  the 
making  of  local  improvements  and 
the  levying  of  special  taxes  for  the 
payment  of  their  cost  of  construc- 
tion. In  re  Market  St.,  49  Cal.  546; 
City  of  Meriden  v.  Camp,  46  Conn. 
284;  Weld  v.  People,  149  111.  257; 
McChesney  v.  City  of  Chicago,  152 
111.  543;  City  of  Baltimore  v.  Scharf, 
54  Md.  499;  Slocum  v.  Selectmen  of 
Brookline,  163  Mass.  23;  Gibson  v. 
Kayser's  Ex'rs,  16  Mo.  App.  404; 
Ritterstoamp  v.  Stifel,  59  Mo.  App. 
510;  State  v.  Corrigan  Consol.  St. 


R.  Co.,  85  Mo.  263;  Jelliff  v.  City  of 
Newark,  48  N.  J.  Law,  101;  In  re 
Cullen,  119  N.  Y.  628;  Appeal  of 
Harper,  109  Pa.  9;  Alford  v.  Dallis 
(Tex.  Civ.  App.)  35  S.  W.  816. 

282  Goodrich  v.  City  of  Detroit,  184 
U.  S.  432;  City  of  Little  Rock  v. 
Katzenstein,  52  Ark.  107,  12  S.  W. 
198;  Matthews  v.  Kimball,  70  Ark. 
451,  66  S.  W.  651,  69  S.  W.  547; 
Bradford  v.  City  of  Pontiac,  165  111. 
612;  Adams  v.  City  of  Shelby ville, 
154  Ind.  467,  49  L.  R.  A.  797;  City  of 
Atchison  v.  Price,  45  Kan.  296,  25 
Pac.  605;  Louisville  Steam  Forge  Co. 
v.  Anderson,  22  Ky.  L.  R.  397, 
57  S.  W.  617;  Hoyt  v.  City  of  East 
Saginaw,  19  Mich.  39;  Trowbridge 
v.  City  of  Detroit,  99  Mich.  443,  58 
N.  W.  368.  A  municipality  may  en- 
large an  assessment  district  when  it 
deems  that  the  property  thus  includ- 
ed is  benefited  by  the  local  improve- 
ment. 

Brown  v.  City  of  Saginaw,  107 
Mich.  643,  65  N.  W.  601;  Mitchell  v. 
City  of  Negaunee,  113  Mich.  359,  71 
N.  W.  646.  It  is  within  the  discre- 
tion of  the  legislature  to  establish 
city  limits  and  taxing  districts  and  to 
authorize  the  levy  of  assessments  for 
the  purpose  of  establishing  a  public 
electric  light  plant.  City  of  Kala- 
mazoo  v.  Francoise,  115  Mich.  554, 
73  N.  W.  801;  Deerfield  Tp.  v.  Har- 
per, 115  Mich.  678,  74  N.  W.  207; 
Grand  Rapids  School  Furniture  Co. 
v.  City  of  Grand  Rapids,  92  Mich. 


804 


PUBLIC  REVENUES. 


be  interfered  with  by  the  courts.283  That  the  legislature  of  a  state 
under  constitutional  authority  may  exercise  the  same  discretion 
and  power  is  axiomatic.284 

By  whatever  authority  the  taxing  district  is  established,  how- 
ever, it  must  be  accurately  denned.  This  is  necessary  in  order 
to  determine  what  property  is  subject  to  the  assessment  and  how 
such  assessments  are  to  be  apportioned  or  divided  according  to 
the  benefits.285  On  the  establishment  of  such  a  local  assessment 


564;  Uhrig  v.  City  of  St.  Louis,  44 
Mo.  458;  Shimmons  v.  City  of  Sagi- 
naw,  104  Mich.  511;  City  of  Kala- 
mazoo  v.  Francoise,  115  Mich.  554; 
City  of  Kansas  v.  Baird,  98  Mo.  215. 
It  does  not  necessarily  follow,  how- 
ever, that  all  property  within  such 
district  will  be  benefited  and  there- 
fore subject  to  assessment.  Where 
the  "benefits  received"  rule  obtains, 
property  not  benefited  although  with- 
in the  assessment  district  will  not 
be  subject  to  taxation. 

City  of  St.  Louis  v.  Brown,  155 
Mo.  545;  Jelliff  v.  City  of  Newark, 
49  N.  J.  Law,  239,  12  Atl.  770;  Peo- 
ple v.  City  of  Buffalo,  30  App.  Div. 
654,  57  N.  Y.  Supp.  1144,  reversing 
52  N.  Y.  Supp.  689;  Gest  v.  City  of 
Cincinnati,  26  Ohio  St.  275;  Wood- 
house  v.  City  of  Burlington,  47  Vt. 
301. 

283  Matthews  v.  Kimball,  70  Ark. 
451,  66  S.  W.  651,  69  S.  W.  547. 
When  a  city  council  establishes  a 
local  improvement  district,  the  pre- 
sumption follows  that  the  property 
therein  will  be  benefited  by  the  im- 
provement for  which  the  district  is 
created.  This  presumption  can  be 
rebutted  by  evidence  to  the  contrary. 

Primm  v.  City  of  Belleville,  59  111. 
142.  Where  the  municipal  authori- 
ties in  the  exercise  of  an  assumed 
legislative  authority  exempt  proper- 
ty from  taxation  or  divide  the  city 
into  districts  in  such  a  manner  as  to 


violate  constitutional  principles  of 
equality  and  uniformity  in  the  levy 
of  special  assessments,  their  action 
will  be  set  aside  as  unconstitutional. 

Preston  v.  Rudd,  84  Ky.  150; 
Hanscom  v.  City  of  Omaha,  11  Neb. 
37.  In  levying  assessments  upon 
property  within  such  a  district,  the 
authorities  cannot  ignore  arbitrarily 
the  question  of  special  benefits  to 
specific  property.  Kountze  v.  City 
of  Omaha,  63  Neb.  52,  88  N.  W.  117; 
Butler  v.  Town  of  Montclair,  67  N. 
J.  Law,  426,  51  Atl.  494.  An  entire 
municipality  may  be  treated  as  one 
taxing  district  and  the  cost  of  a 
sewerage  system  assessed  on  all 
lands  within  its  limits. 

as*  Davidson  v.  City  of  New  Or- 
leans, 96  U.  S.  97;  Spencer  v.  Mer- 
chant, 125  U.  S.  345;  Bauman  v. 
Ross,  167  U.  S.  548;  Parsons  v.  Dist. 
of  Columbia,  170  U.  S.  45;  Williams 
v.  Eggleston,  170  U.  S.  304,  311.  The 
court  said  in  this  case:  "Neither 
can  it  be  stated  that  if  the  state 
constitution  does  not  prohibit,  the 
legislature,  speaking  generally,  may 
create  a  new  taxing  district  de- 
termining what  territory  shall  be- 
long to  such  district  and  what  prop- 
erty shall  be  considered  as  benefited 
by  a  proposed  improvement."  Web- 
ster v.  City  of  Fargo,  181  U.  S.  394; 
Livingston  v.  City  of  New  York,  8 
Wend.  (N.  Y.)  85. 

285  Montgomery  Ave.  Case,  54  Cal. 


g  343 


SPECIAL  ASSESSMENTS. 


805 


or  taxing  district  only  property  within  its  limits  will  be  subject 
to  the  levy  of  local  assessments  for  paying  the  cost  of  its  local 
improvements.  Its  taxing  jurisdiction,  in  other  words,  does  not 
extend  beyond  its  limits  and  applies  conversely  only  to  property 
within  its  limits  for  improvements  made  within  the  district.280 

§  343.    Property  subject  to  local  assessments. 

The  difference  in  the  theories  and  principles  sustaining  the 
imposition  of  local  assessments  distinguished  from  taxation,  as 
the  word  is  commonly  understood,  leads  to  a  radical  difference 


580;  New  Brunswick  Rubber  Co.  v. 
New  Brunswick  St.  Com'rs,  38  N.  J. 
Law,  190.  "It  is  not  sufficient  that 
the  legislative  act  merely  declares 
that  the  cost,  or  a  part  of  the  cost, 
of  the  improvement,  shall"  be  as- 
sessed upon  the  lots  drained  by  the 
sewers  to  be  built.  It  must  as  well 
establish  some  rule,  some  definite 
scheme,  within  constitutional  limits 
for  the  apportionment  of  the  tax  up- 
on the  lands  on  which  such  special 
burthen  is  imposed.  An  act  of  the 
legislature  directing  a  tax  for  a  local 
improvement  to  be  imposed  upon 
particular  lands,  to  be  legal  or  ef- 
fectual, must  consist  of  something 
more  than  a  mere  authorization  to 
assess  a  sum  of  money,  the  cost  of  a 
local  improvement,  upon  the  desig- 
nated property — the  act  must  de- 
termine the  mode  of  distributing  the 
burthen;  the  property  out  of  which 
the  tax  is  to  be  made  must  be  desig- 
nated, and  some  certain  standard  of 
assessments  established;  it  cannot 
properly  be  left  by  the  legislature  to 
the  discretion  of  others  to  fix  the 
method." 

286  Minnesota  &  M.  Land  &  Imp. 
Co.  v.  City  of  Billings  (C.  C.  A.)  Ill 
Fed.  972.  Such  district  may  include 
the  entire  city.  City  of  Ottawa  v. 
Macy,  20  111.  413;  McChesney  v.  Vil- 


lage of  Hyde  Park  (111.)  28  N.  B. 
1102;  Title  Guarantee  &  Trust  Co.  r. 
City  of  Chicago,  162  111.  505.  Such 
district  must  have  been  created  be- 
fore a  special  assessment  for  the  con- 
struction of  a  sewer  will  be  held 
valid. 

Willard  v.  Albertson,  23  Ind.  App. 
164;  Adams  v.  City  of  Shelbyville, 
154  Ind.  467,  49  L.  R.  A.  797;  Chica- 
go, M.  &  St.  P.  R.  Co.  v.  Phillips, 
111  Iowa,  377,  82  N.  W.  787;  Pear- 
son v.  Zable,  78  Ky.  170;  City  of  In- 
dependence v.  Gates,  110  Mo.  374,  19 
S.  W.  728;  In  re  City  of  Amsterdam, 
55  Hun,  270,  8  N.  Y.  Supp.  234;  Le 
Roy  v.  City  of  New  York,  20  Johns. 
(N.  Y.)  430. 

Matter  of  Ward,  52  N.  Y.  395. 
Where,  however,  there  is  a  provision 
restricting  assessments  to  "the  ad- 
joining property"  by  which  it  is 
meant  contiguous  to  the  local  im- 
provement, not  that  merely  adja- 
cent; the  municipal  authorities  have 
no  power  to  create  an  assessment 
district  which  would  make  property 
not  contiguous  subject  to  a  local  as- 
sessment. Farrington  v.  City  of  Mt 
Vernon,  166  N.  Y.  233;  Spring  Gar- 
den v.  Wistar,  18  Pa.  195;  Pacific 
Sheet  Metal  Works  v.  Roeder,  26 
Wash.  183,  66  Pac.  428. 


SUb 


PUBLIC  REVENUES. 


§  343 


in  determining  the  validity  of  local  assessments  levied  upon 
specific  property.  The  basis  of  a  local  assessment  is  a  benetit 
or  advantage  peculiarly  received  by  it  from  the  making  of  the 
local  improvement  and  in  amount  supposed  to  be  equal  to  the 
local  assessment  levied  upon  it  for  the  purpose  of  paying  in 
part  the  cost  of  such  improvement.  Property  which  cannot 
by  reason  of  its  location  or  use  be  benefited  to  any  extent 
through  the  making  of  a  local  improvement  cannot  be  legally 
assessed  for  the  making  of  such  improvement.287  The  ques- 
tion of  the  exemption  of  property  from  local  assessment  may 
arise  in  connection  with  the  construction  of  a  statutory  or  con- 
tract exemption,  its  use,  the  character  or  ownership  of  property, 
or  prior  taxation  for  or  construction  of  the  same  improvement 
either  by  the  municipality  or  owner.288 


287  City  of  San  Diego  v.  Linda  Vis- 
ta Irr.  Dist,  108  Cal.  189,  35  L.  R.  A. 
33.     A    special    assessment   may    be 
levied  upon  Pueblo  lands  of  a  city 
susceptible  to  cultivation  when  irri- 
gated, for  the  purpose  of  construct- 
ing an  irrigation  ditch  under  act  of 
March  7th,  1887. 

City  of  McKeesport  v.  Soles,  178 
Pa.  363.  The  question,  however,  is 
determined  by  the  facts  in  each  par- 
ticular case  if  there  is  a  substantial 
advantage  or  benefit  derived  by  prop- 
erty suburban  in  its  character  it  can 
still  be  assessed  for  local  improve- 
ments made  on  streets  adjoining  or 
fronting  it. 

288  Park  Ecclesiastical  Soc.  v.  City 
of   Hartford,   47    Conn.    89.     Where 
lands  will  receive,  however,  a  benefit 
from   the   construction   of   the   new 
improvement,   they  can  be  assessed 
for  their  portion  according  to   the 
method  authorized  by  the  statute. 

Sargent  v.  City  of  New  Haven,  62 
Conn.  510;  West  Chicago  Park 
Com'rs  v.  Metropolitan  West  Side  El. 
R.  Co.,  182  111.  246,  55  N.  E.  344; 
Sweet  v.  West  Chicago  Park  Com'rs, 
177  111.  492;  Coburn  v.  Bossert,  13 


ind.  App.  359,  40  N.  E.  281,  Holloran 
V.  Morman,  27  Ind.  App.  309,  59  N. 
E.  869. 

City  of  Burlington  v.  Palmer,  67 
Iowa,  681.  The  cost  of  relaying  pave- 
ment necessitated  by  the  construc- 
tion of  a  sewer  must  be  charged  to 
the  cost  of  the  sewer,  not  upon  abut- 
ting property. 

Miller  v.  Hagemann,  114  Iowa,  195, 
86  N.  W.  281.  An  exemption  grant- 
ed though  it  be  valid,  is  conferred 
as  a  matter  of  public  policy  and  it 
cannot  become  a  contract  right 
which  the  legislature  is  precluded 
from  impairing  by  subsequent  legis- 
lation. 

Ottumwa  Brick  &  Const.  Co.  v. 
Ainley,  109  Iowa,  386.  A  city  may 
pay  the  cost  of  a  local  improvement 
in  front  of  property  practically  val- 
ueless from  its  general  fund  and  by 
so  doing  not  affect  the  validity  of 
assessments  abutting  against  other 
property  for  their  proportionate  cost 
of  the  work. 

Gleason  v.  Barnett,  22  Ky.  L.  R. 
1660,  61  S.  W.  20;  City  of  Louisville 
v.  Tyler,  23  Ky.  L.  R.  827,  64  S.  W. 
415;  Sears  v.  Boston  St.  Com'rs,  173 


§  343a 


SPECIAL  ASSESSMENTS. 


807 


(a)  Statutory  exemptions.  The  maintenance  of  private  schools, 
seminaries,  colleges,  or  other  institutions  of  learning;  hospitals 
for  the  care  of  the  sick  and  institutions  for  the  care  and  train- 
ing of  the  unfortunate;  churches  and  buildings  used  by  re- 
ligious bodies  for  the  maintenance  of  their  institutional  work; 
is  considered  a  benefit  and  advantage  to  society  at  large  and, 
therefore,  to  some  extent,  an  aid  to  government.  For  this 
reason  it  is  usual  by  statutory  or  constitutional  provision  to  ex- 
empt the  property  of  such  institutions  or  organizations  from 
public  or  general  taxation.  Such  exemptions  are  usually  for 
a  limited  period,  are  construed  strictly  and,  it  is  well  estab- 
lished, do  not  relieve  these  organizations  or  such  property  from 
the  payment  of  special  assessments.  Their  property  receives 
from  the  construction  of  local  improvements  an  equal  advantage 
and  benefit  with  other  property  similarly  situated  with  respect 
to  the  improvement  and  it  is  but  just  that  it  bear  its  share  of 
the  cost.289 


Mass.  350,  53  N.  E.  876;  Deerfield 
Tp.  v.  Harper,  115  Mich.  678,  74  N. 
W.  207;  City  of  St.  Joseph  v.  Owen, 
110  Mo.  445,  19  S.  W.  713;  Davis  v. 
City  of  Newark,  54  N.  J.  Law,  595; 
In  re  Welsh,  30  Hun  (N.  Y.)  372; 
In  re  East  Eighteenth  St.,  142  N.  Y. 
645,  37  N.  E.  568,  affirming  75  Hun, 
603,  27  N.  Y.  Supp.  591;  Archer  v. 
City  of  Mt.  Vernon,  63  App.  Div.  286, 
71  N.  Y.  Supp.  571;  Wewell  v.  City 
of  Cincinnati,  45  Ohio  St.  407,  15  N. 
E.  196.  Ford  v.  City  of  Toledo,  64 
Ohio  St.  92,  59  N.  E.  779,  construing 
Ohio  Rev.  St.  §  2380,  exempting 
property  from  assessment  for  the 
construction  of  a  sewer  when  not  in 
need  of  local  drainage. 

City  of  Harrisburg  v.  Funk,  200 
Pa.  348,  49  Atl.  992.  The  ordinary 
repairs  made  to  a  highway  will  not 
be  considered  an  original  improve- 
ment so  as  to  exempt  abutting  prop- 
erty from  liability  for  paving. 

City  of  Philadelphia  v.  Gowen,  202 
Pa.  453,  52  Atl.  3;  Wistar  v.  City  of 


Philadelphia,  111  Pa.  604.  The  rule 
applies  where  the  owner  has  made 
an  improvement  at  his  own  expense 
of  the  proper  materials  and  in  the 
proper  manner  as  required  by  ordi- 
nance of  the  city  or  the  rules  of  its 
engineering  department. 

City  of  Philadelphia  v.  Odd  Fel- 
lows' Hall  Ass'n,  168  Pa.  105.  The 
construction  of  a  private  sewer  will 
not  relieve  property  from  assessment 
for  a  public  sewer  subsequently  built 
although  the  latter  was  used  by  the 
property  owner.  Leake  v.  City  of 
Philadelphia,  171  Pa.  125;  City  of 
Erie  v.  Griswold,  184  Pa.  435;  City 
of  Philadelphia  v.  Yewdall,  190  Pa, 
412;  In  re  Lincoln  Ave.,  193  Pa.  435; 
City  of  Scranton  v.  Sturges,  202  Pa. 
182;  Boyden  v.  Village  of  Brattlebo- 
ro,  65  Vt.  504.  Property  cannot  be 
assessed  twice  to  pay  for  the  same 
improvement. 

289  See  cases  cited  under  the  next 
following  note.  See,  also.  District  of 
Columbia  v.  Sisters  of  Visitation  of 


808 


PUBLIC  REVENUES. 


§  343a 


A  state  or  municipal  organization  may  also,  by  law,  exempt 
from  taxation  manufacturing  industries  or  other  private  enter- 


Washington,  15  App.  D.  C.  300.  The 
exemption,  however,  may  be  absolute 
and  the  property  relieved  from  the 
payment  of  local  assessments  as  well 
as  general  taxes;  such  exemption, 
however,  must  be  clearly  and  unmis- 
takably granted.  An  act  exempting 
certain  property  from  "any  and  all 
taxes  or  assessments  national  or  mu- 
nicipal or  county"  held  to  confer 
such  exemption. 

30  Cent.  Law  J.  282,  article  by  D. 
H.  Pingrey;  City  of  Atlanta  v.  First 
Presbyterian  Church,  86  Ga.  730,  12 
L.  R.  A.  852,  overruling  Trustees  of 
First  M.  E.  Church  v.  City  of  Atlanta, 
76  Ga,  181;  City  of  Ottawa  v.  Free 
Church,  20  111.  423;  McLean  County 
v.  City  of  Bloomington,  106  111.  209; 
University  of  Chicago  v.  People,  118 
111.  565;  Adams  County  v.  City  of 
Quincy,  130  111.  566;  Thorn  v.  West 
Chicago  Park  Com'rs,  130  111.  594; 
First  Presbyterian  Church  v.  City  of 
Ft.  Wayne,  36  Ind.  338.  Church 
property  may  be  exempted  from  cer- 
tain assessments,  however,  because 
there  is  no  means  to  provide  for  as- 
certaining "its  value." 

Todd  v.  City  of  Atchison,  9  Kan. 
App.  251;  Zable  v.  Orphans'  Home, 
92  Ky.  89,  13  L.  R.  A.  668;  Kilgus 
v.  Trustees  of  Orphanage  of  Good 
Shepherd,  94  Ky.  439;  Boston 
Asylum  &  Farm  School  v.  Boston 
St.  Com'rs,  180  Mass.  485,  62  N.  E. 
961.  A  charter  provision  that  a  cor- 
poration may  hold  real  estate  and 
personal  property  free  from  taxation 
does  not  exempt  its  property  from  a 
liability  for  special  assessments  for 
street  improvements. 

Harvard  College  v.  City  of  Bos- 
ton, 104  Mass.  470;  Washburn  Me- 


morial Orphan  Asylum  v.  State,  73 
Minn.  343,  76  N.  W.  204;  Lockwood 
v.  City  of  St.  Louis,  24  Mo.  20;  City 
of  Beatrice  v.  Brethren  Church,  41 
Neb.  358;  State  v.  Robertson,  24  N. 
J.  Law  (4  Zab.)  504;  Cooper  Hos- 
pital v.  City  of  Camden,  68  N.  J. 
Law,  208,  52  Atl.  210.  A  hospital  is 
not  subject  to  an  assessment  for 
benefits  derived  from  municipal  im- 
provements under  a  charter  pro- 
vision to  the  effect  that  its  property 
and  effects  shall  not  be  subject  to 
any  tax  or  assessment.  A  consti- 
tutional amendment  adopted  subse- 
quently to  such  charter  does  not 
repeal  the  exemption. 

Hudson  County  Catholic  Protec- 
tory v.  Kearney  Tp.,  56  N.  J.  Law, 
385.  A  charter  provision  that  the 
property  of  the  corporation  shall  be 
exempt  from  the  imposition  of  "any 
tax  or  assessment"  applies  to  taxa- 
tion for  local  improvements  as  well 
as  for  purposes  of  general  revenue, 
following  Protestant  Foster  Home 
Soc.  v.  City  of  Newark,  36  N.  J.  Law, 
478;  Harlem  Presbyterian  Church 
v.  City  of  New  York,  5  Hun  (N.  Y.) 
442. 

In  re  City  of  New  York,  11  Johns. 
(N.  Y.)  77.  "The  word  'taxes' 
means  burdens,  charges  or  imposi- 
tions put  or  set  upon  persons  or 
property  for  public  uses,  and  this 
is  the  definition  which  Lord  Coke 
gives  to  the  word  'talliage,'  2  Inst. 
232;  and  Lord  Holt  in  Garth.  438, 
gives  the  same  definition  in  suo- 
stance  of  the  word  'tax.'  The  legis- 
lature intended  by  that  exemption 
to  relieve  religious  and  literary  in- 
stitutions from  these  public  bur- 
dens, and  the  same  exemption  was 


§  343a 


SPECIAL  ASSESSMENTS. 


809 


prises   from   the    construction   and   establishment   of  which  the 
corporate  organization  is  supposed  to  receive  a  special  benefit 


extended  to  the  real  estate  of  any 
minister  not  exceeding  in  value 
$1,500.  But  to  pay  for  the  opening 
of  a  street  in  the  ratio  of  the  'bene- 
fit or  advantage'  derived  from  it  is 
no  burden.  It  is  no  talliage  or  tax 
within  the  meaning  of  the  exemp- 
tion, and  has  no  claim  upon  the 
public  benevolence.  Why  should 
not  the  real  estate  of  a  minister  as 
well  as  of  other  persons  pay  for 
such  an  improvement  in  proportion 
as  it  is  benefited?  There  is  no  in- 
convenience or  hardship  in  it  and 
the  maxim  of  law  that  qui  sentit 
commodum  debet  sentire  onus,  is 
perfectly  consistent  with  the  inter- 
ests and  dictates  of  science  and  re- 
ligion." 

In  re  Williams  &  Anthony  Streets, 
19  Wend.  (N.  Y.)  678;  Buffalo  City 
Cemetery  v.  City  of  Buffalo,  46  N. 
Y.  506.  The  cemetery  was  by  law 
exempt  from  all  public  taxes,  rates 
and  assessments;  this  exemption 
was  held  not  to  include  a  paving  as- 
sessment. Folger,  Judge,  in  the 
opinion  says:  "We  think  that  the 
current  of  the  authorities  in  this 
state  and  in  some  of  the  sister  states 
runs  to  this  result:  that  public  tax- 
es, rates  and  assessments  are  those 
which  are  levied  and  taken  out  of 
the  property  of  the  person  assessed, 
for  some  public  or  general  use  or 
purpose,  in  which  he  has  no  direct, 
immediate  and  peculiar  interest; 
being  exactions  from  him  towards 
the  expense  of  carrying  on  the  gov- 
ernment, either  directly,  and,  in 
general,  that  of  the  whole  common- 
wealth, or  more  mediately  and  par- 
ticularly through  the  intervention 
of  municipal  corporations;  and  that 


those  charges  and  impositions  which 
are  laid  directly  upon  the  property 
in  a  circumscribed  locality  to  effect 
some  work  of  local  convenience, 
which  in  its  results  is  of  peculiar 
advantage  and  importance  to  the 
property,  especially  assessed  for  the 
expense  of  it,  are  not  public  but 
are  local  and  private  so  far  as  this 
statute  is  concerned." 

Tucker  v.  City  of  Utica,  95  App. 
Div.  173,  54  N.  Y.  Supp.  855.  Prop- 
erty purchased  with  pension  money 
is  not  exempt  from  assessments  for 
local  improvements.  In  re  Second 
Ave.  M.  E.  Church,  66  N.  Y.  395; 
In  re  St.  Joseph's  Asylum,  69  N.  Y. 
353;  In  re  Hebrew  Benev.  Orphan 
Asylum.  Soc.,  70  N.  Y.  476;  In  re 
Tremont  Baptist  Church,  66  Misc. 
590,  73  N.  Y.  Supp.  1075.  A  valid 
exemption  from  such  taxation  may, 
however,  be  made  for  a  limited  pe- 
riod. 

Roosevelt  Hospital  v.  City  of  New 
York,  84  N.  Y.  108;  Monroe  County 
v.  City  of  Rochester,  154  N.  Y.  570; 
Engstad  v.  Grand  Forks  County,  10 
N.  D.  54,  84  N.  W.  577.  Section  176 
of  the  constitution  of  North  Dakota 
which  provides  "that  the  legislative 
assembly  shall  by  a  general  law  ex- 
empt from  taxation  property  used 
exclusively  for  schools,  religious, 
cemetery  or  church  purposes,"  is 
not  self-executing. 

City  of  Lima  v.  Lima  Cemetery 
Ass'n,  42  Ohio  St.  128;  City  of  Phil- 
adelphia v.  Contributors  to  Pennsyl- 
vania Hospital,  143  Pa.  367.  The 
courts  in  this  case  held  that  a  char- 
itable organization  exempted  from 
all  taxation,  by  law,  was  still  sub- 
ject to  local  assessment  for  the  pur- 


810 


PUBLIC  REVENUES. 


§  343a 


equal  to,  at  least,  the  prospective  taxes  which  might  be  derived 
from  taxation  of  their  property;  the  same  rule  as  suggested 
above  in  respect  to  special  assessments  applies  to  this  class  of 
industries.290  In  some  states,  homesteads  or  certain  specifically 
enumerated  property  is  not  subject  to  forced  sale  under  any 
process  of  law;  this  exemption  does  not  usually  apply  to  local 
assessments,291  and  it  can  be  said  to  be  a  general  rule  that  as 
all  exemptions  are  in  derogation  of  a  common  right  they  are 
to  be  construed  strictly  and  not  allowed  except  when  given  in 
the  clearest  language.292 


pose  of  keeping  in  repair  the  public 
streets  and  highways  fronting  upon 
its  property;  this  liability  being 
based  upon  or  in  the  nature  of  a 
police  regulation  not  an  exercise  of 
the  taxing  power. 

City  of  Philadelphia  v.  Sheridan, 
148  Pa.  532;  City  of  Erie  v.  Y.  M. 
C.  A.  Ass'n,  151  Pa.  168;  In  re  Col- 
lege St.,  8  R.  I.  474;  Yates  v.  City  of 
Milwaukee,  92  Wis.  352,  66  N.  W. 
248.  The  rule  applied  to  land  leased 
or  owned  by  a  state  agricultural  so- 
ciety. Wisconsin  Industrial  School 
v.  Clark  County,  103  Wis.  651.  See, 
also,  Cooley,  Taxation,  pp.  207  et 
seq.,  where  many  cases  are  cited 
sustaining  the  principle  above  given. 

290  City  of  Tampa  v.  Kaunitz,  39 
Fla.  683.  A  city  has  no  power  to 
grant  exemption  from  taxation  di- 
rectly or  indirectly  or  in  any  form. 
Lancaster  v.  Clayton,  86  Ky.  373.  A 
municipal  corporation  has  no  pow- 
er to  confer  an  exemption  from 
taxation  upon  a  hotel  the  keeping 
of  which,  though  for  the  public  use, 
was  not  "a  public  service"  under 
Kentucky  bill  of  rights,  §  1. 

City  of  Middlesboro  v.  New  South 
Brewing  &  Ice  Co.,  108  Ky.  351,  56 
S.  W.  427;  Com.  v.  Burnside  &  C.  R. 
R.  Co.,  95  Ky.  60;  City  of  Portland 
v.  Portland  Water  Co.,  67  Me.  135; 
Frederick  Elec.  Light  &  Power  Co. 


v.  Frederick  City,  84  Md.  599;  Peo- 
ple v.  Cummings,  53  App.  Div.  36, 
65  N.  Y.  Supp.  581;  Id.,  166  N.  Y. 
110;  McTwiggan  v.  Hunter,  19  R.  I. 
265,  33  Atl.  5,  29  L.  R.  A.  526.  A 
gift  of  property  may  be  the  basis  of 
exemption. 

291  Ferine  v.  Forbush,  97  Cal.  305; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Peter- 
son, 5  Kan.  App.  103;   Todd  v.  City 
of    Atchison,    9    Kan.    App.    251,    59 
Pac.  676.    The  exemption  of  a  home- 
stead   from    authorized    sale    under 
any  process  of  law  does  not  exempt 
it  from  sale  for  the  payment  of  de- 
linquent   taxes    or    special    assess- 
ments.    Nevin  v.  Allen,  15  Ky.  L.  R. 
836,  26  S.  W.  181);  Bordages  v.  Hig- 
gins   (Tex.)   19  S.  W.  446;   Allen  v. 
City    of    Galveston,    51    Tex.    302; 

Lufkin  v.  City  of  Galveston,  58  Tex. 
549. 

292  Orange    &    A.    R.    Co.    v.    City 
Council     of     Alexandria,     17     Grat. 
(Va.)     176.      All    exemptions    from 
taxation  are  to  be  construed  strict- 
ly.    See,  also,  City  of  Louisville  v. 
Nevin,     73     Ky.      (10     Bush)      549; 
Adams  v.  Yazoo  &  M.  V.  R.  Co.,  77 
Miss.    194,   24    So.    200,    317,    28    So. 
956;    Mack   v.   Jones,   21    N.    H.    (1 
Fost.)    393. 

Crawford  v.  Burrell  Tp.,  53  Pa. 
219.  "Taxation  is  an  act  of  sov- 
ereignty to  be  performed,  so  far  as 


§  343c 


SPECIAL  ASSESSMENTS. 


811 


(b)  Contract  exemptions.     The  reason  for  holding  that  stat- 
utory exemptions   from  taxation  do  not  apply  to  local  assess- 
ments would  also  hold  as  to  property  exempt  from  general  tax- 
ation under  a  contract  or  special  grant  of  exemption.293 

(c)  Exemption  from  local  assessment  because  of  use  by  com- 
mon carriers.     The  one  idea  underlying  the  validity  of  a  local  as- 
sessment is,  benefits  received  by  the  property  from  the  making 
of  a  local  improvement.     It  is  clear,  therefore,  that  if  property 
is  so  situated,  either  because  of  its  physical  location  or  use,  as 
to  be  incapable  of  receiving  a  benefit  by  the  construction  of  a 
local  improvement,  local  assessments  cannot  be  levied  upon  it. 
Property  which  ordinarily  comes  within  this  exemption  is  that 


it  conveniently  can  be  with  justice 
and  equality  to  all.  Exemptions,  no 
matter  how  meritorious  the  cause, 
are  of  grace  and  must  be  strictly 
construed."  Weeks  v.  City  of  Mil- 
waukee, 10  Wis.  242;  Cooley,  Taxa- 
tion, p.  205. 

293  City  of  Covington  v.  Com.  of 
Kentucky,  173  U.  S.  231,  19  Sup.  Ct. 
383;  Wells  v.  City  of  Savannah,  181 
U.  S.  531;  Lake  St.  El.  R.  Co.  v. 
City  of  Chicago,  183  111.  75,  47  L.  R 
A.  624;  Maine  Water  Co.  v.  City  of 
Waterville,  93  Me.  586,  45  Atl.  830. 
But  a  contract  exempting  a  water 
company  from  special  taxation  as  a 
part  consideration  for  the  use  of 
its  water  by  the  city  will  be  en- 
forced. 

Inhabitants  of  Dover  v.  Maine  Wa- 
ter Co.,  90  Me.  180;  Towne  v.  City 
Council  of  Newton,  169  Mass.  240. 
Such  a  contract,  however,  when 
based  upon  a  substantial  considera- 
tion may  be  enforced  and  its  execu- 
tion will  not  invalidate  a  general  as- 
sessment. 

Coit  v.  City  of  Grand  Rapids,  115 
Mich.  493,  73  N.  W.  811.  A  con- 
tract exemption  releasing  a  property 
owner  from  special  assessment  made 
for  the  purpose  of  extending  a  sewer 


through  his  land  can  be  enforced 
when  based  upon  a  gift  of  the  right 
of  way  for  the  improvement. 

State  v.  District  Ct.  of  Fourth  Ju- 
dicial Dist,  83  Minn.  170,  86  N.  W. 
15;  Vrana  v.  City  of  St.  Louis,  164 
Mo.  146,  64  S.  W.  180.  A  stipula- 
tion exempting  from  special  assess- 
ments specific  property  accompany- 
ing the  dedication  of  land  to  public 
use  cannot  be  enforced. 

State  v.  Hannibal  &  St.  J.  R.  Co.. 
75  Mo.  208;  City  of  St.  Joseph  v. 
Crowther,  142  Mo.  155.  A  gift  or 
grant  of  land  to  the  city  for  street 
purposes  will  not  justify  the  assess- 
ment at  the  rate  of  one  per  cent,  per 
lot,  such  assessment  effecting  the 
exemption  of  the  property. 

Buess  v.  Town  of  West  Hoboken, 
51  N.  J.  Law,  267,  17  Atl.  110;  J.  ft 
A.  McKechnie  Brewing  Co.  v.  Vil- 
lage of  Canandaigua,  15  App.  Div. 
139,  44  N.  Y.  Supp.  317.  A  contract 
exemption  from  special  assessments 
because  of  a  gift  of  right  of  way  for 
the  local  improvement  can  be  en- 
forced. City  of  Philadelphia  v. 
Spring  Garden  Farmers'  Market  Co., 
161  Pa.  522;  City  of  Dallas  v.  Dallas 
Consol.  Elec.  St.  R.  Co.,  95  Tex.  268, 
66  S.  W.  835. 


812 


PUBLIC  REVENUES. 


§  343c 


belonging  to  and  used  by  railroad  corporations  or  common  car- 
riers in  the  transaction  of  that  part  of  their  business  in  which 
the  public  does  not  participate  or  as  to  which  it  is  not  necessary 
that  the  public  should  have  direct  access  to  their  properties.  The 
difficulty,  lack  of  feasibility,  and  inadvisability  as  a  matter  of 
public  policy,  of  enforcing  a  tax  lien  against  a  portion  of  rail- 
road property  or  right  of  way  is  also  a  reason  of  equal  weight.29* 


29*McVerry  v.  Boyd,  89  Gal.  304; 
Schmidt  v.  Market  St.  &  W.  G.  R. 
Co.,  90  Cal.  37;  New  York  &  N.  H. 
R.  Co.  v.  City  of  New  Haven,  42 
Conn.  279.  In  this  case,  however, 
it  was  held  that  the  property  of  a 
railroad  company  in  front  of  a  pas- 
senger station  and  along  whose 
track  the  street  had  been  improved 
by  the  city  was  not  liable  to  be  as- 
sessed for  any  part  of  the  expense 
either  because  of  the  increased  value 
of  the  land  or  on  the  ground  that 
the  station  was  rendered  more  ac- 
cessible. 

Farmers'  Loan  &  Trust  Co.  v.  Bor- 
ough of  Ansonia,  61  Conn.  76;  Lou- 
isville &  N.  R.  Co.  v.  City  of  East 
St.  Louis,  134  111.  656,  25  N.  E.  962. 
A  leasehold  right  in  trackage  is  not 
subject  to  special  assessment  for 
local  improvements. 

City  of  Bloomington  v.  Chicago  & 
A.  R.  Co.,  134  111.  451,  26  N.  E.  366. 
Railroad  property  receives  no  bene- 
fit from  the  widening  of  a  street 
where  it  possesses  a  track  and  there- 
fore cannot  be  assessed  for  any  part 
of  the  cost.  Chicago,  R.  I.  &  P.  R. 
Co.  v.  City  of  Chicago,  139  111.  573, 
28  N.  E.  1108;  Neustadt  v.  Illinois 
Cent.  R.  Co.,  31  111.  484.  But  see, 
however,  the  case  of  Illinois  Cent. 
R.  Co.  v.  City  of  Decatur,  147  U.  S. 
190,  as  holding  that  the  property  of 
the  111.  Cent.  R.  Co.  is  subject  to  tax- 
ation for  local  improvements.  Illi- 
nois Cent.  R.  Co.  v.  City  of  Mattoon, 
141  111.  32;  Rich  v.  City  of  Chicago, 


152  111.  18.  The  possibility  that  the 
neighborhood  will  increase  in  popu- 
lation is  not  a  "benefit"  such  as  to 
render  railroad  land  liable  to  its  por- 
tion of  the  cost  of  a  sewer. 

City  of  Bloomington  v.  Chicago  & 
A.  R.  Co.,  134  111.  451;  Chicago  & 
N.  W.  R.  Co.  v.  Village  of  Elmhurst, 
165  111.  148.  Where  railroad  prop- 
erty is  subject  to  assessments  it  can 
be  sold  for  their  nonpayment  in  the 
same  manner  as  lands  delinquent  for 
state  and  county  taxes.  Village  of 
River  Forest  v.  Chicago  &  N.  W.  R. 
Co.,  197  111.  344.  There  can  be  no 
assessment  where  the  property  is 
used  as  a  right  of  way  merely  and 
will  not  be  benefited  by  the  proposed 
improvement. 

Indianapolis  &  V.  R.  Co.  v.  Capitol 
Pav.  &  Const.  Co.,  24  Ind.  App.  114, 
54  N.  E.  1076;  Chicago,  R.  I.  &  P.  R. 
Co.  v.  City  of  Ottumwa,  112  Iowa, 
300,  83  N.  W.  1074,  51  L.  R.  A.  763; 
Atchison,  T.  &  S.  F.  R.  Co.  T.  Peter- 
son, 5  Kan.  App.  103,  48  Pac.  877. 
The  question  is  one,  however,  for 
the  exclusive  determination  of  the 
legislature.  Bakewell  v.  Police 
Jury,  20  La.  Ann.  334.  The  burden 
is  upon  the  party  claiming  an  ex- 
emption. 

City  of  Boston  v.  Boston  &  A.  R. 
Co.,  170  Mass.  95,  49  N.  E.  95.  Prop- 
erty used  for  railroad  purposes  is  al- 
ready devoted  to  a  public  use.  De- 
troit, G.  H.  &  M.  R.  Co.  v.  City  of 
Grand  Rapids,  106  Mich.  13,  28  L.  R. 
A.  793.  The  road  bed  of  a  railroad 


§  343c 


SPECIAL  ASSESSMENTS. 


813 


On  the  other  hand,  property  which  is  not  so  used  or  of  this 
character  is  clearly  subject  both  to  taxation  and  the  levy  of 
local  assessments.  The  same  rule  has  been  applied  by  the  courts 
in  many  cases  in  construing  the  word  "taxation"  as  used  in 
grants  of  exemption.  That  phrase  being  interpreted  as  not  in- 
cluding assessments  for  local  municipal  improvements,  it  not 
being  taxation  within  the  common  acceptation  of  that  term.285 


company  cannot  be  locally  assessed 
where  the  basis  of  such  assessment 
is  the  principle  of  benefits  received. 

Auditor  General  v.  Duluth,  S.  S. 
&  A.  R.  Co.,  116  Mich.  122,  74  N.  W. 
505;  First  Division  of  St.  Paul  &  P. 
R.  Co.  T.  City  of  St.  Paul,  21  Minn. 
526;  City  of  St.  Paul  v.  St.  Paul  & 
S.  C.  R.  Co.,  23  Minn.  469;  State  v. 
Ramsey  County  Dist.  Ct,  68  Minn. 
242;  Morris  &  E.  R.  Co.  v.  Jersey 
City,  36  N.  J.  Law,  56;  Winona  & 
St.  P.  R.  Co.  v.  City  of  Watertown, 
1  S.  D.  46;  Chicago,  M.  &  St.  P.  R. 
Co.  v.  City  of  Milwaukee,  89  Wis. 
506,  28  L.  R.  A.  249. 

Sweaney  v.  Kansas  City  R.  Co.,  54 
Mo.  App.  265;  McCutcheon  v.  Pacific 
R.  Co.,  72  Mo.  App.  271;  New  Jersey 
Midland  R.  Co.  v.  Jersey  City,  42  N. 
J.  Law,  97.  Under  §  9  of  the  act 
of  1873,  p.  112,  providing  for  the 
taxation  of  railroad  property,  if 
such  property  is  benefited  by  a  local 
improvement,  it  is  subject  to  a  spe- 
cial assessment  for  its  proportionate 
cost  of  such  improvement.  In  re 
West  Shore  &  O.  Terminal  Co.  (N. 
J.  Law)  49  A.  543;  In  re  Pennsyl- 
vania R.  Co.  (N.  J.  Law)  49  Atl. 
543.  The  rule  applies  to  land  leased 
by  the  railroad  company  and  used 
for  railroad  purposes. 

People  v.  Gilon,  126  N.  Y.  147,  27 
N.  E.  282;  People  v.  Adams,  88  Hun, 
122,  34  N.  Y.  Supp.  579.  A  railroad 
cannot  be  arbitrarily  assessed  an 
amount  sufficient  to  construct 


bridges  over  its  tracks  at  street  cor- 
ners. In  re  Com'rs  of  Public  Parks, 
47  Hun  (N.  Y.)  302;  Con  way  v.  City 
of  Rochester,  24  App.  Div.  489,  49  N. 
Y.  Supp.  244;  City  of  Allegheny  v. 
Western  Pa.  R.  Co.,  138  Pa.  375,  21 
Atl.  763.  The  roadbed  of  a  railroad 
company  is  conclusively  presumed 
not  to  be  benefited  by  the  construc- 
tion of  a  local  improvement  and 
therefore,  it  is  not  subject  to  as- 
sessment for  any  proportion  of  the 
cost.  Junction  R.  Co.  v.  City  of 
Philadelphia,  88  Pa.  424;  City  of 
Erie  v.  Piece  of  Land  Fronting  on 
State  St.,  175  Pa.  523;  Columbia  & 
P.  S.  R.  Co.  v.  Chilberg,  6  Wash. 
612;  Oshkosh  City  R.  Co.  v.  Winne- 
bago  County,  89  Wis.  435;  Chicago, 
M.  &  St.  P.  R.  Co.  v.  City  of  Mil- 
waukee, 89  Wis.  506,  28  L.  R.  A. 
249. 

295  Illinois  Cent.  R.  Co.  v.  City  of 
Decatur,  147  U.  S.  190,  37  L.  Ed. 
132.  The  following  is  the  syllabus 
in  this  case: 

"1.  A  special  tax  for  a  local  Im- 
provement is  not  within  the  exemp- 
tion from  taxation  granted  to  the 
Illinois  Central  Railroad  Company 
by  section  22  of  the  Act  of  1851. 

"2.  Between  general  taxes  for  the 
support  of  the  government, -and  spe- 
cial taxes  for  local  improvement, 
th<ve  is  a  broad  distinction. 

"3.  An  exemption  from  taxation 
is  to  be  taken  as  an  exemption  sim- 
ply from  the  burden  of  ordinary  tax- 


814 


PUBLIC  REVENUES. 


§  343c 


And,  further,  in  some  states  all  property  used  by  common  car- 
riers including  their  right  of  way,  yards  and  other  grounds  of 


es,  taxes  proper,  and  does  not  re- 
lieve from  the  obligation  to  pay  spe- 
cial assessments. 

"4.  The  cost  of  a  local  improve- 
ment is  charged  upon  the  contigu- 
ous property  upon  the  theory  that 
It  is  benefited  thereby." 

The  court  say  in  part  in  the  opin- 
ion by  Mr.  Justice  Brewer: 

"Between  taxes,  or  general  taxes 
as  they  are  sometimes  called  by  way 
of  distinction,  which  are  the  exac- 
tions placed  upon  the  citizen  for  the 
support  of  the  government,  paid  to 
the  state  as  a  state,  the  considera- 
tion of  which  is  protection  by  the 
state,  and  special  taxes  or  special 
assessments,  which  are  imposed  up- 
on property  within  a  limited  area 
for  the  payment  for  a  local  improve- 
ment, supposed  to  enhance  the  value 
of  all  property  within  that  area, 
there  is  a  broad  and  clear  line  of 
distinction,  although  both  of  them 
are  properly  called  taxes,  and  the 
proceedings  for  their  collection  are 
by  the  same  officers  and  by  substan- 
tially similar  methods.  Taxes  prop- 
er, or  general  taxes,  proceed  upon 
the  theory  that  the  existence  of  gov- 
ernment is  a  necessity;  that  it  can- 
not continue  without  means  to  pay 
its  expenses;  that  for  those  means 
it  has  the  right  to  compel  all  citi- 
zens and  property  within  its  limits 
to  contribute;  and  that  for  such  con- 
tribution it  renders  no  return  of 
special  benefit  to  any  property,  but 
only  secures  to  the  citizen  that  gen- 
eral benefit  which  results  from  pro- 
tection to  his  person  and  property, 
and  the  promotion  of  those  various 
schemes  which  have  for  their  ob- 
ject the  welfare  of  all.  'The  public 
revenues  are  a  portion  that  each  sub- 


ject gives  of  his  property  in  order 
to  secure  or  enjoy  the  remainder.' 
Montesquieu,  Spirit  of  Laws,  bk.  13, 
c.  1;  Citizens'  Sav.  &  Loan  Ass'n  v. 
City  of  Topeka,  87  U.  S.  (20  Wall.) 
655,  664;  Opinions  of  Judges,  58  Me. 
591;  Hanson  v.  Vernon,  27  Iowa,  28, 
47;  Judd  v.  Driver,  1  Kan.  455,  462; 
Philadelphia  Ass'n  for  Relief  of  Dis- 
abled Firemen  v.  Wood,  39  Pa.  73, 
82;  Exchange  Bank  of  Columbus  v. 
Hines,  3  Ohio  St.  1,  10. 

"On  the  other  hand,  special  as- 
sessments or  special  taxes  proceed 
upon  the  theory  that  when  a  local 
improvement  enhances  the  value  of 
neighboring  property  that  property 
should  pay  for  the  improvement. 
In  Wright  v.  City  of  Boston,  63 
Mass.  (9  Gush.)  233,  241,  Chief  Jus- 
tice Shaw  said:  'When  certain  per- 
sons are  so  placed  as  to  have  a  com- 
mon interest  amongst  themselves, 
but  in  common  with  the  rest  of  the 
community,  laws  may  be  justly 
made,  providing  that,  under  suitable 
and  equitable  regulations,  those 
common  interests  shall  be  so  man- 
aged, that  those  who  enjoy  the  ben- 
efits shall  equally  bear  the  burden.' 
In  McGonigle  v.  City  of  Allegheny, 
44  Pa.  118, -121,  is  this  declaration: 
'All  these  municipal  taxes  for  im- 
provement of  streets,  rest,  for  their 
final  reason,  upon  the  enhancement 
of  private  properties.'  In  Litchfield 
v.  Vernon,  41  N.  Y.  123,  133,  it  was 
stated  that  the  principle  is,  'that 
the  territory  subjected  thereto 
would  be  benefited  by  the  work  and 
change  in  question.'  *  *  *  These 
distinctions  have  been  recognized 
and  stated  by  the  courts  of  almost 
every  state  in  the  Union,  and  a  col- 
lection of  the  cases  may  be  found  in 


§  343c 


SPECIAL  ASSESSMENTS. 


815 


the  character  just  noted,  is  subject  to  local  assessment;  the  idea 
being  that  since  such  property  might  be  put  to  a  use  by  which 


any  of  the  leading  text-books  on 
taxation.  Founded  on  this  distinc- 
tion is  a  rule  of  very  general  accept- 
ance— that  an  exemption  from  taxa- 
tion is  to  be  taken  as  an  exemption 
simply  from  the  burden  of  ordinary 
taxes,  taxes  proper,  and  does  not  re- 
lieve from  the  obligation  to  pay 
special  assessments.  *  *  *  This 
rule  of  exemption  has  been  applied 
in  cases  where  the  language  grant- 
ing the  exemption  has  been  broad 
and  comprehensive.  Thus  in  City 
of  Baltimore  v.  Green  Mount  Ceme- 
tery Proprietors,  7  Md.  517,  the  ex- 
emption was  from  'any  tax  or  public 
imposition  whatever,'  and  it  was 
held  not  to  relieve  from  the  obliga- 
tion to  pay  for  the  paving  of  the 
street  in  front.  In  Buffalo  City 
Cemetery  v.  City  of  Buffalo,  46  N.  Y. 
506,  the  exemption  was  from  'all 
public  taxes,  rates  and  assessments,' 
and  it  was  held  not  to  discharge 
from  liability  for  a  paving  assess- 
ment. A  like  rule  was  held  in  City 
of  Paterson  v.  Society  for  Establish- 
ing Useful  Manufactures,  24  N.  J. 
Law  (4  Zab.)  385,  where  the  ex- 
emption was  from  'taxes,  charges, 
and  impositions.'  And  in  City  of 
Bridgeport  v.  New  York  &  N.  H. 
R.  Co.,  36  Conn.  255,  the  railroad 
company  was  held  liable  for  a  street 
assessment,  although  it  paid  a  sum 
of  money  to  the  state  which,  by  its 
charter,  was  to  be  'in  lieu  of  all 
other  taxes.'  Indeed  the  rule  has 
been  so  frequently  enforced  that,  as 
a  general  proposition,  it  may  be 
considered  as  thoroughly  established 
in  this  country.  It  is  unnecessary 
to  refer  to  the  cases  generally.  It 
may  be  well,  however,  to  notice  those 


from  Illinois.  In  Trustees  of  Illinois 
&  M.  Canal  v.  City  of  Chicago,  12 
111.  403,  406,  decided  in  the  lower 
court  at  May  term,  1849,  and  before 
the  passage  of  the  act  creating  the 
contract  relied  upon,  and  by  the  Su- 
preme Court  at  the  June  term,  1851, 
the  exemption  was  'from  taxation 
of  every  description  by  and  under 
the  laws  of  this  state,'  and  it  was 
held  that  that  did  not  include  an  as- 
sessment made  to  defray  the  ex- 
pense of  opening  a  street.  It  was 
observed:  'In  our  opinion  the  ex- 
emption must  be  held  to  apply  only 
to  taxes  levied  for  state,  county,  and 
municipal  purposes.  A  tax  is  im- 
posed for  some  general  or  public  ob- 
ject. *  *  *  The  assessment  in 
question  has  none  of  the  distinctive 
features  of  a  tax;  it  is  imposed  for 
a  special  purpose,  and  not  for  a  gen- 
eral or  public  object.'  See,  also,  City 
of  Chicago  v.  Colby,  20  111.  614; 
City  of  Peoria  v.  Kidder,  26  111.  351; 
Town  of  Pleasant  v.  Kost,  29  111. 
490,  494;  Illinois  Cent.  R.  Co.  v. 
East  Lake  Fork  S.  D.  Dist.  Com'rs, 
129  111.  417.  Nor  is  this  a  mere 
arbitrary  distinction  created  by  the 
courts,  but  one  .resting  on  strong 
and  obvious  reasons.  A  grant  of 
exemption  is  never  to  be  considered 
as  a  mere  gratuity — a  simple  gift 
from  the  legislature.  No  such  in- 
tent to  throw  away  the  revenues  of 
the  state,  or  to  create  arbitrary  dis- 
criminations between  the  holders  of 
property,  can  be  imputed.  A  consid- 
eration is  presumed  to  exist.  The 
recipient  of  the  exemption  may  be 
supposed  to  be  doing  part  of  the 
work  which  the  state  would  other- 
wise be  under  obligations  to  do.  A 


816 


PUBLIC  REVENUES. 


§  343c 


it  receives  benefit  from  the  local  improvement,  it  would  be  in- 
equitable to  other  property  fronting  on  or  adjacent  to  such  im- 


college  or  an  academy,  furnishes  ed- 
ucation to  the  young,  which  it  is  a 
part  of  the  state's  duty  to  furnish. 
The  state  is  bound  to  provide  high- 
ways for  its  citizens,  and  a  rail- 
road company  in  part  discharges 
that  obligation.  Or  the  recipient 
may  be  doing  a  work  which  adds  to 
the  material  prosperity  or  elevates 
the  moral  character  of  the  people; 
manufactories  have  been  exempted, 
but  only  in  the  belief  that  thereby 
large  industries  will  be  created  and 
the  material  prosperity  increased; 
churches  and  charitable  institutions, 
because  they  tend  to  a  better  order 
of  society.  Or  it  may  be  that  a 
sum,  in  gross  or  annual  instalments, 
is  received  in  lieu  of  taxes.  But  in 
every  case  there  is  the  implied  fact 
of  some  consideration  passing  for 
the  grant  of  exemption.  But  those 
considerations  as  a  rule  pass  to  the 
public  generally,  and  do  not  work 
the  enhancement  of  the  value  of  any 
particular  area  of  property.  So 
when  the  consideration  is  received 
by  the  public  as  a  whole,  the  exemp- 
tion should  be  and  is  of  that  which 
otherwise  would  pass  to  such  public, 
to  wit,  general  taxes." 

New  York,  N.  H.  &  H.  R.  Co.  v. 
City  of  New  Britain,  49  Conn.  40; 
Chicago  &  N.  W.  R.  Co.  v.  People, 
120  111.  104,  11  N.  E.  418;  Chicago, 
R,  I.  &  P.  R.  Co.  v.  City  of  Chicago, 
139  111.  573,  28  N.  E.  1108.  The 
question  of  whether  certain  railroad 
property  is  benefited  by  the  con- 
struction of  a  local  improvement  is 
a  question  of  fact  for  a  jury  to  de- 
termine. 

Illinois  Cent  R.  Co.  v.  City  of 
Chicago,  141  111.  509,  30  N.  E.  1036. 
It  may  be  a  question  of  fact  for  a 


jury  to  determine  whether  railroad 
property  used  for  a  particular  pur- 
pose will  be  benefited  by  the  con- 
struction of  a  local  improvement. 

Illinois  Cent.  R.  Co.  v.  City  of 
Decatur,  126  111.  92,  affirmed  147  U. 
S.  190,  154  111.  173;  Illinois  Cent. 
R.  Co.  v.  City  of  Mattoon,  141  111. 
32;  Chicago  Terminal  Transfer  Co. 
v.  City  of  Chicago,  178  111.  429; 
Northern  Ind.  R.  Co.  v.  Connelly,  10 
Ohio  St.  159;  City  of  Ludlow  v. 
Trustees  of  Cincinnati  So.  R.  Co., 
78  Ky.  357;  City  of  Shreveport  v. 
Prescott,  51  La.  Ann.  1895,  46  L.  R. 
A.  193;  City  of  Boston  v.  Boston  & 
A.  R.  Co.,  170  Mass.  95;  Lake  Shore 
&  M.  S.  R.  Co.  v.  City  of  Grand 
Rapids,  102  Mich.  374,  29  L.  R.  A. 
195;  State  v.  Ramsey  County  Dist. 
Ct.,  68  Minn.  242;  New  Jersey  R.  & 
Transp.  Co.  v.  City  of  Newark,  27 
N.  J.  Law  (3  Dutch.)  185;  Camden 
&  A.  R.  Co.  v.  Atlantic  City,  58  N.  J. 
Law,  316,  33  Atl.  198;  New  Jersey 
Midland  R.  Co.  v.  Jersey  City,  42  N. 
J.  Law,  97. 

Morris  &  E.  R.  Co.  v.  Jersey  City, 
64  N.  J.  'Law,  151,  44  Atl.  938.  City 
lots  owned  by  a  railroad  outside  of 
its  right  of  way  and  not  used  for 
railroad  purposes  are  subject  to  spe- 
cial assessments  though  such  lots 
were  purchased  anticipating  their 
use  at  some  future  time  for  strictly 
railroad  purposes.  City  of  Phila- 
delphia v.  Philadelphia  &  R.  R.  Co., 
1  Pa.  Super.  Ct.  236.  Only  that  por- 
tion of  railroad  property  which  is 
indispensable  to  the  construction  of 
the  road  and  used  for  railroad  pur- 
poses is  exempt  from  local  assess- 
ments. 

Borough  of  Mt.  Pleasant  v.  Balti- 
more &  O.  R.  Co..  138  Pa.  365,  11 


§343c 


SPECIAL  ASSESSMENTS. 


817 


provement  to  make  it  bear  the  whole  burden  of  its  cost,296  and 
it  is  also  quite  commonly  held  that  where  the  right  of  way  of  a 
street  railway  company  occupies  the  street,  such  right  of  way 
or  franchise  can  be  made  to  bear  its  portion  of  the  cost  of  a 
local  improvement.  The  liability  in  such  cases  is  usually  lim- 
ited to  the  ground  between  or  to  that  portion  of  the  street  im- 
mediately abutting  on  the  railroad  tracks.297 


L.  R.  A.  520.  Land  occupied  by  a 
railroad  company  for  depot  grounds 
and  lumber  yard  is  subject  to  taxa- 
tion for  local  improvements  al- 
though its  right  of  way  and  roadbed 
are  not. 

Chicago,  M.  &  St.  P.  R.  Co.  v. 
City  of  Milwaukee,  89  Wis.  506,  28 
L.  R.  A.  249.  If  the  benefits  from 
street  improvements  to  portions  of 
railroad  property  not  used  for  rail- 
road purposes  are  direct,  immediate 
and  certain,  it  will  be  liable  for  its 
portion  of  the  cost.  If,  however, 
such  property  cannot  be  benefited 
by  a  street  improvement,  it  cannot 
be  assessed. 

296  Appeal  of  North  Beach  &  M.  R. 
Co.,  32  Cal.  499;  Illinois  Cent.  R. 
Co.  v.  City  of  Mattoon,  141  111.  32, 
30  N.  E.  773,  following  Illinois  Cent. 
R.  Co.  v.  City  of  Decatur,  126  111. 
92,  1  L.  R.  A.  613.  The  latter  case 
on  appeal  to  the  Supreme  Court  of 
the  United  States  was  affirmed  in 
147  U.  S.  190,  the  claim  being  made 
by  the  Illinois  Cent.  R.  Co.  that  its 
railroad  property  was  exempt  from 
local  assessments  under  act  of  Feb- 
ruary 10th,  1851,  §  22,  which  pro- 
vided that  in  consideration  of  the 
payment  to  the  state  of  seven  per 
cent,  of  its  gross  earnings  yearly, 
its  property  should  be  exempted 
from  "all  taxation  of  every  kind." 

Rich  v.  City  of  Chicago,  152  111. 
18;  Chicago  &  A.  R.  Co.  v.  City  of 
Joliet,  153  111.  649;  Illinois  Cent.  R. 
Co.  v.  City  of  Kankakee,  164  111. 


608;  Cnicago  &  N.  W.  R.  Co.  v.  Vil- 
lage of  Elmhurst,  165  111.  148;  Illi- 
nois Cent.  R.  Co.  v.  People,  170  111. 
224.  Under  act  of  April  15th,  1875, 
§  1,  unplatted  railroad  right  of  way 
may  be  assessed  for  the  construction 
of  an  abutting  sidewalk.  Pitts- 
burgh, C.,  C.  &  St.  L.  R.  Co.  v.  Hays, 
17  Ind.  App.  261,  44  N.  E.  375,  45  N. 
E.  675,  46  N.  E.  597;  Dunlieth  &  D. 
Bridge  Co.  v.  City  of  Dubuque,  32 
Iowa,  427;  Atchison,  T.  &  St.  P.  Ry. 
Co.  v.  Peterson,  5  Kan.  App.  103,  48 
Pac.  877;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Peterson,  58  Kan.  818,  51  Pac.  290, 
affirming  5  Kan.  App.  103,  48  Pac. 
877;  City  of  Ludlow  v.  Cincinnati 
So.  R.  Co.,  78  Ky.  357;  Adams  v. 
Yazoo  &  M.  V.  R.  Co.,  75  Miss.  275, 
22  So.  824.  There  may  be  an  abso- 
lute exemption  from  taxation  for  a 
limited  period,  however. 

City  of  Nevada  v.  Eddy,  123  Mo. 
546,  27  S.  W.  471.  Land  used  by  a 
railroad  company  for  depot  and 
yard  purposes  Is  not  exempt  from 
special  taxes  for  street  improve- 
ments. 

Morris  &  E.  R.  Co.  v.  City  of  Jer- 
sey City,  64  N.  J.  Law,  148,  44  Atl. 
937.  The  liability  for  special  as- 
sessments may,  however,  be  a  ques- 
tion of  fact,  especially  when  the  as- 
sessment is  based  upon  the  principle 
of  benefits  received. 

2»7  Barber  Asphalt  Pav.  Co.  v.  City 
of  Denver  (C.  C.  A.)  72  Fed.  336. 
In  case  the  street  railway  company 
fails  to  pay  its  tax,  there  is  an  obll- 


Abb.  Corp. — 52. 


818 


PUBLIC  REVENUES. 


§   343d 


(d)  Property  exempt  because  of  its  location.    Again  the  pub- 
lic  corporation   may   include   within   its   limits   property   other 


gation  resting  on  the  city  to  pay  for 
the  improvements.  McVerry  v. 
Boyd,  89  Gal.  304;  Schmidt  v.  Mar- 
ket St  &  W.  G.  R.  Co.,  90  Cal.  37, 
27  Pac,  61;  Appeal  of  North  Beach 
&  M.  R.  Co.,  32  Cal.  499;  City  of 
New  Haven  v.  Fair  Haven  &  W.  R. 
Co.,  38  Conn.  422;  Farmers'  Loan  & 
Trust  Co.  v.  Borough  of  Ansonia,  61 
Conn.  76;  Kuehner  v.  City  of  Free- 
port,  143  111.  92,  33  N.  E.  372,  17  L. 
R.  A.  774;  Little  v.  City  of  Chicago, 
46  111.  App.  534;  Parmelee  v.  City 
of  Chicago,  60  111.  267;  Chicago  City 
R.  Co.  v.  City  of  Chicago,  90  111. 
573.  But  see,  however,  Peru  &  I.  R. 
Co.  v.  Hanna,  68  Ind.  562;  West 
Chicago  Park  Com'rs  v.  Metropoli- 
tan West  Side  El.  R.  Co.,  182  111. 
246,  55  N.  E.  344.  An  assessment 
must,  however,  be  based  upon  the 
principle  of  benefits  received  by  the 
property.  Bell  v.  City  of  Alton,  152 
111.  170;  Cicero  &  P.  St.  R.  Co.  v. 
City  of  Chicago,  176  111.  501;  Lake 
St.  El.  R.  Co.  v.  City  of  Chicago,  183 
111.  75,  47  L.  R.  A.  624.  An  elevated 
road  is  liable  to  special  assessments 
for  improvements  made  on  the  street 
below. 

Sawyer  v.  City  of  Chicago,  183  111. 
57.  A  removal  by  a  street  railway 
company  of  its  tracks  from  a  street 
upon  which  a  sewer  has  been  con- 
structed does  not  effect  a  release  of 
its  liability  for  its  proportionate 
part  of  the  cost  of  such  sewer  or 
furnish  evidence  sufficient  to  cause 
a  forfeiture  of  its  franchise  or  right 
to  use  that  particular  street. 

Bickerdike  v.  City  of  Chicago,  185 
111.  280;  South  Chicago  City  R.  Co. 
v.  City  of  Chicago,  196  111.  490;  State 
v.  Common  Council  of  Michigan 


City,  138  Ind.  455,  37  N.  E.  1041; 
Indianapolis  &  V.  R.  Co.  v.  Capitol 
Pav.  &  Const.  Co.,  24  Ind.  App.  114, 
54  N.  E.  1076.  A  railroad  right  of 
way  which  lies  wholly  within  the 
limits  of  the  street  is  not  "abut- 
ting" property  so  as  to  make  it  lia- 
ble to  local  assessments,  but  its  right 
of  way,  of  this  character,  is  subject 
to  such  assessment. 

City  of  New  Orleans  v.  St.  Charles 
St.  R.  Co.,  28  La.  Ann.  497;  City  of 
Shreveport  v.  Prescott,  51  La.  Ann. 
1895,  26  So.  664,  46  L.  R.  A.  193. 
The  extent  of  the  liability  on  the 
part  of  the  street  railroad  company 
is  strictly  a  matter  of  proof  depend- 
ing upon  the  proportionate  space 
occupied  by  the  company's  tracks. 

City  of  Shreveport  v.  Shreveport 
Belt  R.  Co.,  104  La.  260.  An  agree- 
ment between  a  street  railway  com- 
pany and  the  municipal  authorities 
cannot  be  sustained  where  its  effect 
is  to  reduce  the  liability  of  the  rail- 
road company  for  local  assessments 
levied  to  pay  the  cost  of  local  im- 
provements below  that  which  legal- 
ly arises  under  the  statutes  impos- 
ing such  a  liability. 

Davies  v.  City  of  Saginaw,  87 
Mich.  439.  The  presumption  exists 
that  the  company  is  not  liable  for 
more  than  the  cost  of  the  improve- 
ment and  maintenance  of  the  street 
between  its  tracks.  Wolfort  v.  City 
of  St.  Louis,  115  Mo.  139;  Johnson 
v.  Duer,  115  Mo.  366;  Lincoln  St.  R. 
Co.  v.  City  of  Lincoln  (Neb.)  84  N. 
W.  802;  Paterson  &  H.  R.  R.  Co.  v. 
City  of  Passaic,  54  N.  J.  Law,  340; 
North  Jersey  St.  R.  Co.  v.  Jersey 
City,  68  N.  J.  Law,  140,  52  Atl.  300. 
Laws  of  1895,  c.  217,  do  not  author- 


§  343d 


SPECIAL  ASSESSMENTS. 


8)9 


than  that  noted  which,  because  of  its  location  or  use,  does  not 
or   cannot   receive   the   benefit   of  a   local   improvement.298     To 


Ize  an  assessment  against  a  street 
railroad  company  for  paving  the 
street. 

Paterson  &  H.  R.  R.  Co.  v.  City 
of  Passaic,  54  N.  J.  Law,  340;  Gil- 
more  v.  City  of  Utica,  55  Hun  (N. 
Y.)  514.  An  assessment  imposing 
upon  abutting  owners  the  entire 
cost  of  a  street  improvement  in- 
cluding that  portion  between  the 
tracks  of  a  street  railway  company 
will  be  held  illegal  when  a  charter 
provision,  mandatory  in  its  terms, 
requires  this  to  be  done  by  the  rail- 
way company. 

Gilmore  v.  City  of  Utica,  131  N.  Y. 
26.  Where  such  liability  rests  upon 
a  railway  company,  the  fact  that  an 
assessment  is  made  does  not,  how- 
ever, invalidate  an  assessment  for 
repaving  a  street  assigning  one-third 
of  the  cost  to  the  city  at  large  and 
two-thirds  on  abutting  owners.  City 
of  Philadelphia  v.  Spring  Garden 
Farmers'  Market  Co.,  161  Pa.  522; 
City  of  Erie  v.  Land  on  Eighteenth 
St.,  171  Pa.  G10;  Houston  City  St.  R. 
Co.  v.  Storrie  (Tex.  Civ.  App.)  44  S. 
W.  693,  reversing  92  Tex.  129,  46  S. 
W.  796;  Storrie  v.  Cortes,  90  Tex. 
283.  35  L.  R.  A.  666;  Milwaukee 
Elec.  R.  &  Light  Co.  v.  City  of  Mil- 
waukee, 95  Wis.  42;  City  of  New 
Whatcom.  v.  Bellingham  Bay  &  B. 
C.  R.  Co.,  16  Wash.  137.  See,  to  the 
contrary,  the  following  cases:  South 
Park  Com'rs  v.  Chicago,  B.  &  Q.  R. 
Co.,  107  111.  105;  Boehme  v.  City  of 
Monroe,  106  Mich.  401,  64  N.  W.  204; 
Davis  v.  City  of  Newark,  54  N.  J. 
Law,  144,  23  Atl.  276;  Dean  v.  City 
of  Paterson,  67  N.  J.  Law,  199,  50 
Atl.  620;  North  Jersey  St.  R.  Co.  v. 
Jersey  City,  68  N.  J.  Law,  140,  52 


Atl.  300;  People  v.  Gilon,  126  N.  Y. 
147,  reversing  58  Hun,  76,  11  N.  Y. 
Supp.  439;  Conway  v.  City  of  Roch- 
ester, 24  App.  Div.  489,  49  N.  Y. 
Supp.  244.  The  tracks  and  fran- 
chises of  a  street  railway  corpora- 
tion are  not  benefited  by  the  im- 
provement of  the  street  on  which 
they  are  located  and  therefore,  they 
cannot  be  assessed  for  any  part  of 
its  cost.  O'Reilley  v.  City  of  Kings- 
ton, 114  N.  Y.  439;  City  of  Phila- 
delphia v.  Bowman,  175  Pa.  91;  Osh- 
kosh  City  R.  Co.  v.  Winnebago 
County,  89  Wis.  435. 

2»8Hayward  v.  People,  145  111.  55, 
33  N.  E.  885;  Sanitary  Dist.  of  Chi- 
cago v.  City  of  Joliet,  189  111.  270. 
Where  the  market  value  of  lots  is 
increased  by  a  sewer  they  are  sub- 
ject to  special  assessment.  City  of 
Ft.  Scott  v.  Kaufman,  44  Kan.  137, 
24  Pac.  64;  McGrew  v.  Stewart,  51 
Kan.  185,  32  Pac.  896.  Abutting 
property  upon  a  highway  included 
within  the  limits  of  a  city  of  the 
first  class  is  subject,  after  annexa- 
tion, to  special  assessments  under 
the  front-foot  rule.  McGrew  v.  Kan- 
sas City,  64  Kan.  61,  67  Pac.  438; 
City  of  Lebanon  v.  Bevill,  18  Ky.  L. 
R.  924,  38  S.  W.  872;  Lewis  v. 
Schmidt,  19  Ky.  L.  R.  1315,  43  S.  W. 
433.  An  assessment  may  be  levied 
on  the  property  of  a  turnpike  abut- 
ting the  street  where  the  county  has 
assented  to  the  improvement. 

Town  of  Central  Covington  v. 
Park,  21  Ky.  L.  R.  1847,  56  S.  W. 
650;  Brown  v.  City  of  Fitchburg, 
128  Mass.  282;  Johnson  v.  Duer,  115 
Mo.  366,  21  S.  W.  800.  Only  the 
owners  of  property  which  would  be 
exempt  from  special  assessment  by 


820 


PUBLIC  REVENUES. 


§  343d 


illustrate,  land  which  is  remotely  situated  from  the  business  cen- 
ter of  a  municipality,  upon  which  no  buildings  are  erected  and 


reason  of  its  location  or  of  the  fact 
that  it  receives  no  special  benefits 
can  raise  the  question  of  the  valid- 
ity of  the  special  assessment  on  such 
grounds.  Owners  of  Ground  v.  City 
of  Albany,  15  Wend.  (N.  Y.)  374. 
Land  used  for  a  water  reservoir  held 
not  subject  to  assessment  in  the 
same  proportion  as  other  property. 

Heiple  v.  City  of  East  Portland, 
13  Or.  97.  The  mere  change  of  a 
road  from  county  to  city  control 
without  annexation  does  not  make 
property  abutting  such  road  subject 
to  that  rule  of  assessment  which  ap- 
plies to  city  property  only.  City  of 
Philadelphia  v.  Sheridan,  148  Pa. 
532,  24  Atl.  80.  The  question  of 
use  is  generally  one  of  fact  for  a 
jury  to  determine. 

City  of  McKeesport  v.  Soles,  178 
Pa.  363.  The  question  is  determined 
by  the  facts  in  each  particular  case; 
if  there  is  a  substantial  advantage 
or  benefit  derived  by  property  sub- 
urban in  its  character  it  can  still  be 
assessed  for  local  improvements 
made  on  streets  adjoining  or  front- 
ing it.  Bishop  v.  Tripp,  15  R.  I.  466, 
8  Atl.  692.  See,  also,  the  following 
special  Pennsylvania  cases.  Stewart 
v.  City  of  Philadelphia  (Pa.)  7  Atl. 
192.  The  following  charge  to  the  jury 
was  affirmed  by  a  divided  court:  "The 
real  test  is  not  whether  the  property 
in  question  could  properly  be  called 
either  rural  or  suburban  but  wheth- 
er the  work  done  was  required  or 
justified  by  the  locality  of  the  prop- 
erty and  character  of  the  surround- 
ing improvements."  Forse  v.  City 
of  Pittsburgh,  118  Pa.  458,  12  Atl. 
366;  Seely  v.  City  of  Pittsburgh,  82 
Pa.  360;  Craig  v.  City  of  Philadel- 


phia, 89  Pa.  265.  In  Pennsylvania 
the  legislation  of  1866  and  1870 
which  authorizes  abutting  property 
to  be  assessed  for  local  improve- 
ments, however  just,  is  unconstitu- 
tional as  applied  to  rural  or  sub- 
urban districts.  City  of  Philadelphia 
v.  Rule,  93  Pa.  15;  City  of  Scran  ton 
v.  Pennsylvania  Coal  Co.,  105  Pa. 
445;  Keith  v.  City  of  Philadelphia, 
126  Pa.  575;  City  of  Scranton  v. 
Bush,  160  Pa.  499.  Abutting  lots  in 
the  suburban  portion  of  a  city  may 
be  assessed  for  the  cost  of  grading 
either  according  to  benefits  or  front- 
age but  in  the  rural  portion  accord- 
ing to  benefits  only.  The  following 
cases  consider  claimed  exemptions 
from  assessments  for  the  local  im- 
provements noted  because  of  the 
character  or  the  use  of  the  property 
for  which  the  exemption  is  claimed. 
Sewers:  Appeal  of  Hunter,  71 
Conn.  189.  The  potential  use  of  a 
sewer  adjoining  property  is  a  suffi- 
cient benefit  to  justify  the  assess- 
ments upon  the  property.  Harney 
v.  Benson,  113  Cal.  314,  45  Pac.  687. 
The  untimely  construction  of  a  sew- 
er in  respect  to  its  use  will  not  re- 
lieve property  that  may  receive  a 
special  benefit  from  such  construc- 
tion from  local  assessments.  City 
of  Atlanta  v.  Gabbett,  93  Ga.  266.  A 
strip  of  land  not  available  for  any 
use  is  not  suitable  for  the  building 
of  a  sewer.  Edwards  v.  City  of  Chi- 
cago, 140  111.  440,  30  N.  E.  350. 
Farming  lands  three  miles  away 
from  an  underground  sewer  cannot 
be  specially  assessed  for  any  portion 
of  the  work.  Rich  v.  City  of  Chi- 
cago, 152  111.  18.  Land  which  may, 
for  its  drainage,  use  eventually  a 


§  343d 


SPECIAL  ASSESSMENTS. 


821 


proposed  sewer  is  assessable  for  its 
portion  of  the  cost  according  to  ben- 
efits received  although  it  does  not 
abut  upon  the  street  in  which  the 
sewer  is  to  be  constructed.  Heman 
v.  Allen,  156  Mo.  534.  An  original 
exemption  from  special  assessment 
for  the  construction  of  a  sewer  can 
be  removed  by  a  subsequent  change 
of  conditions.  The  judgment  in  this 
case  was  afterwards  affirmed  by  the 
supreme  court  of  the  United  States 
in  Shumate  v.  Heman,  181  U.  S. 
402.  Brown's  Estate  v.  Town  of 
Union,  62  N.  J.  Law,  142,  40  Atl.  632. 
Unimproved  lands  within  the  city 
limits  are  subject  to  a  sewerage  tax 
levied  for  the  construction  of  an  ad- 
jacent sewer.  McKee  Land  &  Imp. 
Co.  v.  Williams,  63  App.  Div.  553,  71 
N.  Y.  Supp.  1141,  affirming  51  N.  Y. 
Supp.  399.  The  court  in  this  case 
held  that  unoccupied  lands  laid  out 
for  city  lots  could  be  assessed  for 
the  construction  of  a  trunk  sewer 
although  the  benefits  were  purely 
speculative.  Ford  v.  City  of  Toledo, 
64  Ohio  St.  92,  59  N.  E.  779.  Va- 
cant lots  adjacent  to  a  sewer  acces- 
sible by  them  for  sewerage  purposes 
are  not  exempt  from  the  local  as- 
sessment levied  to  pay  the  cost  of 
its  construction.  The  special  bene- 
fit which  they  derive  from  this  im- 
provement it  was  held  is  sufficient 
to  sustain  an  assessment  made  on 
the  basis  of  benefits. 

Unplatted  or  farming  lands:  Ta- 
ber  v.  Grafmiller,  109  Ind.  206,  9  N. 
E.  721.  Farming  land  though  with- 
in the  limits  of  a  city  is  liable  to  as- 
sessments for  street  improvements. 
Leeper  v.  City  of  South  Bend,  106 
Ind.  375.  Under  Ind.  Rev.  St.  § 
3261,  unplatted,  unimproved  lands 
within  city  limits  are  subject  to  the 
same  extent  to  such  special  assess- 
ments as  affect  them  in  common 


with  other  city  property.  Farwell  v. 
Des  Moines  Brick  Mfg.  Co.,  97  Iowa, 
286,  66  N.  W.  176,  35  L.  R.  A.  63. 
Acts  of  23d  Gen.  Assemb.  c.  1,  §  3, 
provides  that  lands  not  made  into  lots 
and  used  in  good  faith  for  agricul- 
tural purposes  though  within  the 
limits  of  a  city  shall  not  be  taxable 
for  city  purposes.  Special  grading 
and  paving  assessments  are  not  tax- 
es within  the  meaning  of  this  law 
and  such  land  may  be  subject  to 
them.  The  question  of  good  faith 
may  also  determine  the  liability  of 
such  land  not  only  for  special  as- 
sessments but  also  for  general  mu- 
nicipal taxes.  Allen  v.  City  of  Dav- 
enport, 107  Iowa,  90,  77  N.  W.  532. 
A  statute  exempting  agricultural 
lands  within  the  city  limits  from 
paying  taxes  "for  city  purposes" 
does  not  apply  to  special  assessments 
for  street  paving.  Medland  v.  Lin- 
ton,  60  Neb.  249,  82  N.  W.  866.  An 
unplatted  tract  of  land  within  the 
city  limits  will  be  subject  to  taxa- 
tion for  local  improvements.  City 
of  Philadelphia  v.  Gorgas,  180  Pa. 
296.  The  question  as  to  whether 
certain  property  is  farm  land  or  a 
city  lot  and  hence  chargeable  with 
municipal  improvements  is  a  ques- 
tion of  fact  for  a  jury  to  determine 
upon  its  proper  submission  by  the 
court. 

Cemeteries:  Bloomington  Ceme- 
tery Ass'n  v.  People,  139  111.  16.  In 
Illinois,  however,  it  is  held  that 
property  used  for  cemetery  purposes 
is  subject  to  assessments  for  local 
improvements.  In  re  Albany  St.,  11 
Wend.  (N.  Y.)  149.  Oakland  Ceme- 
tery v.  City  of  Yonkers,  63  App.  Div. 
448,  71  N.  Y.  Supp.  783.  Property 
used  for  cemetery  purposes  will  be 
by  law  exempt  from  taxation  for  lo- 
cal improvements.  Batterman  v. 
City  of  New  York,  65  App.  Div.  576, 


822 


PUBLIC  REVENUES. 


§  343e 


which  is  not  platted,  it  has  been  held  cannot  be  assessed  for  the 
laying  of  a  water  main.299 

(e)  Public  property;  when  exempt.  The  public  ownership  of 
property  may  again  give  rise  to  an  exemption  from  local  as- 
sessments. In  some  states,  public  property  by  law  or  policy  is 
made  exempt  from  local  taxation  or  assessment.300  In  other 


73  N.  Y.  Supp.  44.  Although  lands 
used  for  cemetery  purposes  may  be 
exempt  from  special  assessments, 
they  are  not  relieved  from  an  assess- 
ment for  waterworks,  such  a  tax 
not  being  either  "public  taxes  or  as- 
sessments" under  the  exemption 
statutes.  People  v.  Fitch,  87  Hun 
(N.  Y.)  391;  Lima  v.  Lima  Ceme- 
tery Ass'n,  42  Ohio  St.  128.  An  in- 
corporated cemetery  is  not  exempt 
from  assessment  for  local  improve- 
ments under  a  statute  exempting  it 
from  taxation.  In  re  West  End 
Ave.  Sewer,  30  Pittsb.  Leg.  J.  (N. 
S.)  63.  The  land  of  a  county  ceme- 
tery used  for  burial  purposes  is  not 
liable  for  a  local  assessment  for  the 
construction  of  a  sewer.  Olive  Cem- 
etery Co.  v.  City  of  Philadelphia,  93 
Pa.  129.  The  property  of  a  ceme- 
tery association  exempt  from  spe- 
cial assessment  for  the  construction 
of  a  sewer.  City  of  New  Castle  v. 
Stone  Church  Graveyard,  172  Pa.  86. 
City  of  Philadelphia  v.  Union  Burial 
Ground  Soc.,  178  Pa.  533.  An  ex- 
emption from  taxation  of  places  of 
burial  under  constitution,  art.  9,  §  1, 
it  is  held  in  this  case  applies  only  to 
taxation  for  general  purposes  not  to 
special  assessments  for  local  im- 
provements. 

2»9  State  v.  Robert  P.  Lewis  Co., 
72  Minn.  87,  75  N.  W.  108,  42  'L.  R. 
A.  639.  The  word  "lot"  as  used  in 
Sp.  Laws  1885,  c.  110,  §  26,  provid- 
ing for  the  levy  of  special  assess- 
ments "upon  each  and  every  lot"  in 
front  of  which  water  mains  are  laid, 


is  synonymous  with  the  word 
"tract"  and  its  size  is  immaterial  so 
long  as  the  condition  exists. 

soo  School  Dist.  of  Ft.  Smith  v. 
Board  of  Improvement,  65  Ark.  343, 
46  S.  W.  418.  Property  belonging  to 
a  school  district  but  not  used  for 
school  purposes  is  subject  to  assess- 
ment for  local  improvements. 
Ahern  v.  Board  of  Imp.  Dist.  No.  3, 
69  Ark.  68,  61  S.  W.  575;  People  v. 
Austin,  47  Cal.  353;  Witter  v.  Mis- 
sion School  Dist.,  121  Cal.  350,  53 
Pac.  905.  An  exemption  may  apply 
only  to  land  as  used  for  school  pur- 
poses. 

State  v.  City  of  Hartford,  50  Conn. 
89;  In  re  City  of  Mt.  Vernon,  147 
111.  359,  23  L.  R.  A.  807.  Con- 
stitution, art.  4,  §  26,  provides  that 
"the  state  of  Illinois  shall  never  be 
made  defendant  in  any  court  of  law 
or  equity."  This  exempts  all  prop- 
erty of  the  state  by  implication  from 
special  taxation  levied  to  pay  for 
local  improvements.  To  make  such 
a  tax  valid,  notice  must  be  given  to 
property  owners  and  such  notice  giv- 
en to  the  state  would  in  effect  make 
it  a  party  defendant  to  such  pro- 
ceedings. 

West  Chicago  Park  Com'rs  v.  City 
of  Chicago,  152  111.  392;  Sutton  v. 
School  City  of  Montpelier,  28  Ind. 
App.  315,  62  N.  E.  710;  Polk  County 
Sav.  Bank  v.  State,  69  Iowa,  24; 
City  of  Louisville  v.  Leatherman,  99 
Ky.  213;  City  of  Louisville  v.  Mc- 
Naughten,  19  Ky.  L.  R.  1695,  44  S. 
W.  380.  Under  the  principle  that 


§  343e 


SPECIAL   ASSESSMENTS. 


823 


states,  it  is  liable  to  assessment  for  local  improvements  to  the 
same  extent  as  private  property  similarly  situated.3*1     The  ob- 


one  governmental  agency  cannot  be 
required  to  pay  for  the  care  and 
support  of  another,  the  property  of 
a  reform  school  held  not  subject  to 
assessment  for  local  improvements. 

City  of  Louisville  v.  Hexagon  Tile 
Walk  Co.,  103  Ky.  552,  45  S.  W.  667; 
Louisville  &  N.  R.  Co.  v.  Nehan,  23 
Ky.  L.  R.  889,  64  S.  W.  457.  The 
fact  that  public  property  is  leased 
to  a  private  corporation  and  the  city 
derives  a  revenue  therefrom  does 
not  make  it  liable  for  local  assess- 
ments. 

Baltimore  County  Com'rs  v.  Mary- 
land Hospital  for  Insane,  62  Md. 
127;  Inhabitants  of  Worcester  Coun- 
ty v.  City  of  Worcester,  116  Mass. 
193;  City  of  Big  Rapids  v.  Mecosta 
County  Sup'rs,  99  Mich.  351.  The 
power  given  a  city  council  to  deter- 
mine what  portion  of  the  cost  of 
a  local  improvement  shall  be  paid 
by  local  assessments  on  property 
benefited  does  not,  by  implication, 
authorize  the  assessment  of  public 
property  belonging  to  a  county  and 
used  for  public  purposes. 

City  of  Clinton  v.  Henry  County, 
115  Mo.  557;  City  of  St.  Louis  v. 
Brown,  155  Mo.  545;  Von  Steen  v. 
City  of  Beatrice,  36  Neb.  421,  54  N. 
W.  677;  Green  v.  Hotaling,  44  N.  J. 
Law,  347;  Elwood  v.  City  of  Roches- 
ter, 43  Hun  (N.  Y.)  102;  Mansfield 
v.  City  of  Lockport,  24  Misc.  25,  52 
N.  Y.  Supp.  571;  Smith  v.  City  of 
Buffalo,  159  N.  Y.  427.  A  public 
street  of  a  city  as  such  cannot  be 
benefited  by  the  construction  of  a 
local  improvement  and  therefore 
cannot  be  assessed  as  property  ben- 
efited by  such  improvement.  City 
of  Toledo  v.  Board  of  Education,  48 
Ohio  St.  83,  26  N.  E.  403.  School 


property   not   liable   for   assessment 
on  street  improvements. 

301  Warner  v.  City  of  New  Orleans 
(C.  C.  A.)  87  Fed.  829;  Board  of 
Improvement  v.  School  Dist.,  56 
Ark.  354,  16  L.  R.  A.  418;  City  of 
San  Diego  v.  Linda  Vista  Irr.  Dist., 
108  Cal.  189,  35  L.  R.  A.  33;  City  of 
Hartford  v.  West  Middle  Dist.,  45 
Conn.  462;  Trustees  of  Illinois  &  M. 
Canal  v.  City  of  Chicago,  12  111.  403; 
Higgins  v.  City  of  Chicago,  18  111. 
276;  McLean  County  v.  City  of 
Bloomington,  106  111.  209;  Adams 
County  v.  City  of  Quincy,  130  111. 
566;  In  re  City  of  Mt.  Vernon,  147 
111.  359,  23  L.  R.  A.  807;  Sioux  City 
v.  Independent  School  Dist.,  55  Iowa, 
150;  Edwards  &  Walsh  Const.  Co. 
v.  Jasper  County,  117  Iowa,  365,  90 
N.  W.  1006;  Franklin  County  Com'rs 
v.  City  of  Ottawa,  49  Kan.  747.  Un- 
der Gen.  St.  1889,  c.  19,  §  32,  a  city 
of  the  second  class  has  the  power  to 
levy  a  special  assessment  on  public 
property  for  the  improvement  of  a 
street  in  front  of  a  court  house. 
State  v.  Recorder  of  Mortgages,  45 
La.  Ann.  566,  12  So.  880;  Marquez 
r.  City  of  New  Orleans,  13  La.  Ann. 
319;  Correjolles  v.  Succession  of 
Foucher,  26  La.  Ann.  362;  St.  Louis 
Public  Schools  v.  City  of  St.  Louis, 
26  Mo.  468;  City  of  Clinton  v.  Henry 
County,  115  Mo.  557;  Ross  v.  City 
of  New  York,  3  Wend.  (N.  Y.)  333; 
In  re  Turfler,  44  Barb.  (N.  Y.)  46; 
In  re  Extension  of  Church  St.,  49 
Barb.  (N.  Y.)  455;  People  v.  City  of 
Syracuse,  63  N.  Y.  291;  Hassan  v. 
City  of  Rochester,  67  N.  Y.  528; 
Harris  County  v.  Boyd,  70  Tex.  237; 
Boyd  v.  City  of  Milwaukee,  92  Wis. 
456.  66  N.  W.  603. 


824  PUBLIC  REVENUES.  §   344 

jections  to  the  levy  of  local  assessments  upon  public  property 
may  be  briefly  stated  as  based,  first,  upon  the  fact  that  such 
obligations  although  paid  by  the  public  corporation  can  only 
be  met  by  it  through  the  levy  and  collection  of  general  taxes 
upon  all  property  within  the  jurisdiction,  and  second,  that  de- 
linquent assessments  are  usually  collected  through  the  enforce- 
ment of  a  tax  lien  upon  property  liable;  this  as  against  public 
property  would  be  against  public  policy.302  On  the  other  hand, 
the  argument  in  sustaining  the  principle  that  public  property 
should  share  its  proportion  of  the  cost  of  a  local  improvement  is 
that  if  private  property  were  compelled  to  pay  the  entire  cost, 
it  would  result  in  the  levy  of  an  excessive  tax  upon  it  which,  in 
many  cases,  might  be  an  amount  equal  or  even  in  excess  of  the 
value  of  the  property.303  The  cost  of  improving  public  prop- 
erty cannot  be  assessed  on  abutting  land.304 

§  344.    The  manner  of  determining  local  assessments ;  conversely, 
benefits. 

In  a  preceding  section,*05  the  suggestion  has  been  made  that 
the  manner  of  determining  the  amount  of  local  assessments 
particular  property  shall  pay  is  one  of  legislative  expediency.30* 

»o2Town    of    West    Hartford     v.  369,  35  N.  E.  35,  37  N.  E.  1071;  City 

Hartford   Water    Com'rs,   44    Conn,  of   Harrisburg  r.   Shepler,  190   Pa. 

360.    The  principle  that  the  product  374. 

of  one  taxation  ought  not  to  be  made  sos  See  §  337. 

the  subject  of  another  was  applied  soe  Shoemaker  v.  United  States, 
in  this  case  and  land  purchased  by  147  U.  S.  282;  Cass  Farm  Co.  v.  City 
municipal  authorities  for  reservoir  of  Detroit,  181  U.  S.  396,  affirming 
purposes  was  held  not  subject  to  124  Mich.  433,  83  N.  W.  108;  City 
general  taxation  or  the  levy  of  spe-  of  Detroit  v.  Parker,  181  U.  S.  399, 
cial  assessments  for  the  construe-  reversing  Parker  v.  City  of  Detroit, 
tion  of  local  improvements  in  its  103  Fed.  357;  King  v.  City  of  Port- 
vicinity.  City  of  St.  Louis  v.  Brown,  land,  184  U.  S.  61,  affirming  38  Or. 
155  Mo.  545;  Dowdney  v.  City  of  402,  55  L.  R.  A.  812;  Carson  v. 
New  York,  54  N.  Y.  186.  Brockton  Sewerage  Commission,  182 

303  city  of  New  Orleans  v.  Warner,  U.  S.  398,  21  Sup.  Ct.  860;   Hadley 

175  U.  S.  120,  modifying  decree  in  v.    Dague,    130   Cal.   207;    Ahern   v. 

(C.  C.  A.)  81  Fed.  645;  School  Dist.  Board  of  Imp.  Dist.  No.  3,  69  Ark. 

of  Ft.  Smith  v.  Board  of  Improve-  68,  61  S.  W.  575;  Craw  v.  Village  of 

ment,  65  Ark.  343;   City  of  Clinton  Tolono,  96  111.  255;  Douglas  v.  Craig, 

v.  Henry  County,  115  Mo.  557.  4  Kan.  App.  99,  46  Pac.  197;   Kelly 

804  Bennett  v.  Seibert,  10  Ind.  App.  v.    Chadwick,    104    La.    719,    29    So. 


§  344 


SPECIAL  ASSESSMENTS. 


825 


If  reference  is  made  to  this  question  in  organic  law,  the  pro- 
visions or  recommendations  there  found  will  control.307  And 
where,  by  such  organic  law,  statutory  provision  or  local  ordi- 
nance, the  method  of  apportioning  a  local  assessment  is  fixed, 
an  assessment  according  to  some  other  rule  or  method  will  be 
fatally  defective.308  The  usual  constitutional  provision,  howev- 


295.  Where  a  legislative  body  has 
fixed  a  standard  for  the  levy  of  spe- 
cial assessments,  the  judiciary  can- 
not substitute  their  own  standard 
based  upon  actual  benefits  received 
as  measured  by  established  values. 

Kelly  v.  Chadwick,  104  La.  719; 
Hoyt  v.  City  of  East  Saginaw,  19 
Mich.  39.  "The  legislature  of  Mich- 
igan has  power  to  authorize  mu- 
nicipal corporations  to  assess  the 
whole  or  any  part  of  the  expenses 
of  local  improvements  upon  the 
property  deemed  to  be  particularly 
and  especially  benefited  thereby,  in 
proportion  to  the  benefit  received, 
if  in  the  judgment  of  the  legislature 
that  rule  of  apportionment  is  most 
just  and  equitable.  There  is  noth- 
ing in  the  constitution  which  ex- 
pressly prohibits  this,  and  nothing 
in  the  nature  of  the  power  of  taxa- 
tion which  is  unconstitutional  with 
it.  The  legislature  may,  moreover, 
empower  the  common  council  to 
judge  what  property  is  specially  ben- 
efited by  the  improvement  and  de- 
fine the  taxing  district  accordingly. 
As  the  question  in  such  case  is  one 
which  can  only  properly  and  intelli- 
gently be  decided  upon  personal  in- 
spection of  the  improvement  and  the 
manner  in  which  it  will  affect  the 
neighboring  property,  naturally  a 
proper  course  is  to  report  to  some 
local  tribunal." 

Uhrig  v.  City  of  St.  Louis,  44  Mo. 
458;  Wilson  v.  Inhabitants  of  Tren- 
ton, 55  N.  J.  Law,  220,  26  Atl.  83; 
Matter  of  Van  Antwerp,  56  N.  Y. 


261;  In  re  Amberson  Ave.  179  Pa. 
634.  The  legislature  may  ratify  an 
assessment  levied  under  a  void  act. 
Cruikshanks  v.  City  Council  of 
Charleston,  1  McCord  (S.  C.)  360; 
Woodhouse  v.  City  of  Burlington,  47 
Vt.  301;  City  of  Spokane  v.  Browne, 
8  Wash.  317.  The  legislature  may 
change  the  method  of  determining 
the  amount  of  local  improvements 
properly  chargeable  to  specific  prop- 
erty after  the  making  of  a  local  im- 
provement and  before  the  payment 
of  the  assessment  has  been  com- 
pleted. A  property  owner  has  no 
vested  right  in  a  particular  method 
but  the  legislature  cannot  arbi- 
trarily change  the  amount  and  time 
of  payment  of  such  assessments. 
Cooley,  Taxation  (2d  Ed.)  pp.  622, 
646. 

SOT  city  of  Pueblo  v.  Robinson,  12 
Colo.  593 ;  Hurf ord  v.  City  of  Omaha, 
4  Neb.  336;  State  v.  Dodge  County 
Com'rs,  8  Neb.  124;  Parrotte  v.  City 
of  Omaha,  61  Neb.  96,  84  N.  W.  602; 
Reynolds  v.  City  of  Paterson,  48  N. 
J.  Law,  435.  Local  assessments 
based  on  the  lineal  frontage  instead 
of  the  value  of  land  as  assessed 
would  be  invalid  under  N.  J.  Const, 
art.  4,  §  7. 

sos  Ware  v.  City  of  Jerseyville, 
158  111.  234;  Gleason  v.  Barnett,  20 
Ky.  L.  R.  1694,  50  S.  W.  67.  If  a 
contrary  mode  is  merely  recom- 
mended, it  does  not  render  an  as- 
sessment invalid.  McKeesport 
Borough  v.  Busch,  166  Pa.  46. 


826  PUBLIC  REVENUES.  £   344 

er,  is  one  to  be  found  in  connection  with  a  statement  of  the  rules 
regulating  and  controlling  the  levy  and  imposition  of  taxes, 
prescribing  the  general  principles  which  shall  apply  and  giving 
perhaps  to  the  legislature  a  discretion  as  to  the  method  or  the 
manner  of  the  imposition  and  levy  of  special  assessments.  The 
phraseology  used  in  the  constitution  of  the  state  of  Minnesota 
is  that  usually  employed.309  "Provided  that  the  legislature 
may  by  general  law  or  special  act,  authorize  municipal  corpora- 
tions to  levy  assessments  for  local  improvements  upon  the  prop- 
erty fronting  upon  such  improvements,  or  upon  the  property  to 
be  benefited  by  such  improvements,  or  both,  without  regard  to 
a  cash  valuation,  and  in  such  a  manner  as  the  legislature  may 
prescribe."  Where  such  legislative  discretion  is  given,  laws 
passed  authorizing  the  levy  of  special  assessments  according  to 
the  methods  usually  employed  based,  however,  upon  a  benefit 
received  by  the  property,  are  constitutional.310  It  is  useless  at 
this  time  when  the  principle  is  so  well  established  to  give  at 
length  reasons  for  or  against  what  has  been  discussed  by  the 
courts  of  every  state  in  the  Union.  So  long  as  the  fundamental 
idea  underlying  a  valid  and  legal  levy  of  special  assessments  is 
not  ignored,  namely,  the  doctrine  of  benefits  received,  such  legis- 
lation will  be  held  constitutional.311 

309  Minn.  Const,  art.  9,  §  1.  Fed.  409.     An  act  which  authorizes 

sio  Lent   v.    Tillson,    72    Cal.   404;  the  levy  of  special  assessments  for 

Fagan  v.  City  of  Chicago,  84  111.  227.  the  making  of  a  local  improvement 

Where   the   method   for   paying   for  based  upon  a  special  benefit  to  the 

local  improvements  is  given  by  the  property  against  which   the  assess- 

legislature  to  municipal  authorities,  ment  is  made,  if  it  does  not  afford 

the  courts  have  no  power  to  inter-  the  property  owner  an  opportunity 

fere  with  the  exercise  of  its  discre-  to   question    the    existence    of    such 

tion.  benefit,   is   unconstitutional    as   tak- 

Carpenter  v.  City  of  St.   Paul,  23  ing    private    property    without    the 

Minn.  232.     The   decision  of  a  city  payment  of  just  compensation, 
council  that  certain  property  is  ben-        City  of   Peoria  v.   Kidder,   26   111. 

efited  by  a  local  improvement  and  351;    Falch   v.    People,   99    111.    137; 

should  therefore  be  assessed  for  its  Adams   v.   City   of   Shelbyville.    154 

proper  proportion  of  the  cost  is  not  Ind.  467,  49  L.  R.  A.  797;  McKee  v. 

ordinarily  reviewable  in  the  courts.  Town    of   Pendleton,   154    Ind.   652; 

Neither  is  evidence  to  disprove  bene-  Town  of  Bellevue  v.  Peacock,  11  Ky. 

fits  admissible,  following  Rogers  v.  L.  R.   702,  12   S.  W.   1042;    Fidelity 

City  of  St.  Paul,  22  Minn.  494.  Trust  &  Safety  Vault  Co.  v.  Voris' 

3ii  See,   also,   cases   cited   under   §  Ex'rs,  22   Ky.  L.  R.  1873,  61  S.  W. 

337.     Fay  v.  City  of  Springfield,  94  474;   Abraham  v.  City  of  Louisville, 


§  345 


SPECIAL   ASSESSMENTS. 


827 


The  legislature  cannot,  however,  change  the  method  of  de- 
termining the  liability  of  property  for  special  assessments  after 
they  have  been  levied  to  pay  the  cost  of  a  local  improvement 
authorized,312  neither  can  it  change  the  extent  to  which  prop- 
erty shall  be  liable  for  local  assessments  after  this  has  been  de- 
termined by  the  ordering  or  construction  of  a  local  improve- 
ment,313 the  principle  being  that  the  system  for  determining 
the  liability  of  property  for  special  assessments  in  vogue  at  the 
time  a  local  improvement  is  ordered  determines  the  manner  and 
extent  of  its  liability  for  the  construction  of  that  particular  im- 
provement.31* 


345.    According  to  frontage. 

The  method  which  is  ordinarily  adopted  is  what  may  be  termed 
frontage  rule."315     The  property  fronting  upon  a   public 


the 


23  Ky.  L.  R.  375,  62  S.  W.  1041; 
Barfield  v.  Gleason,  23  Ky.  L.  R. 
128,  63  S.  W.  964.  Such  legislation 
is  constitutional  even  though  it 
makes  no  provision  for  a  prelimin- 
ary hearing  to  ascertain  the  extent 
of  special  benefits  to  each  piece  of 
property  resulting  from  the  im- 
provement. 

Weed  v.  City  of  Boston,  172  Mass. 
28,  51  N.  E.  204,  42  L.  R.  A.  642; 
City  of  St.  Joseph  v.  Anthony,  30 
Mo.  537;  Jersey  City  v.  Howeth,  30 
N.  J.  Law,  521.  The  manner  of  ap- 
portioning a  local  assessment  upon 
property  will  be  immaterial  so  long 
as  it  properly  distributes  the  cost 
among  the  owners  of  the  property 
benefited. 

Howell  v.  City  of  Buffalo,  37  N.  Y. 
267;  Hill  v.  Higdon,  5  Ohio  St.  243. 
It  is  competent  for  the  legislature  to 
authorize  municipal  corporations  to 
levy  special  assessments  for  local 
improvements  upon  real  estate  pecu- 
liarly and  specially  benefited  and  in 
proportion  to  such  benefit. 

Northern  Indiana  R.  Co.  v.  Con- 
nelly, 10  Ohio  St.  159;  Maloy  v.  City 


of  Marietta,  11  Ohio  St.  636;  Bonsall 
v.  Town  of  Lebanon.  19  Ohio,  418; 
Paulson  v.  City  of  Portland,  16  Or. 
450,  1  L.  R.  A.  673;  City  of  Dallas  v. 
Ellison,  10  Tex.  Civ.  App.  28,  30  S. 
W.  1128;  Wilson  v.  City  of  Seattle,  2 
Wash.  St.  543;  Bond  v.  City  of  Keno- 
sha,  17  Wis.  284;  Meggett  v.  City  of 
Eau  Claire,  81  Wis.  326,  51  N.  W. 
,666. 

312  Keith  v.  City  of  Philadelphia, 
126  Pa.  575. 

sisNiklaus  v.  Conkling,  118  Ind. 
289. 

si*McPike  v.  City  of  Alton,  187 
111.  62;  Crawfordsville  Music  Hall 
Ass'n  v.  Clements,  12  Ind.  App.  464, 
39  N.  E.  540,  40  N.  E.  752;  City  of 
Cincinnati  v.  Seasongood,  46  Ohio 
St.  296,  21  N.  E.  630.  The  rule  also 
applies  to  municipal  ordinances  rel- 
ative to  the  levy  of  local  assess- 
ments. Douglass  v.  City  of  Cincin- 
nati, 29  Ohio  St.  165;  Borough  of 
New  Brighton  v.  Biddell,  201  Pa.  96, 
50  Atl.  989. 

sis  French  v.  Barber  Asphalt  Pav. 
Co.,  181  U.  S.  324;  Arndt  v.  City  of 
Cullman,  132  Ala.  540,  31  So.  478; 


828 


PUBLIC  REVENUES. 


§  345 


local  improvement  is  assessed  to  the  extent  of  its  frontage  and 
according  to  the  benefits  derived  from  such  improvement,  its 


Hart  v.  Gavem,  12  Cal.  476;  Diggins 
v.  Brown,  76  Cal.  318;  McDonald  v. 
Conniff,  99  Cal.  386;  Diggins  v. 
Hartshorne,  108  Cal.  154;  San  Diego 
Inv.  Co.  v.  Shaw,  129  Cal.  273.  The 
liability  of  abutting  property  ap- 
plies only  to  the  cost  of  the  improve- 
ment to  the  center  of  the  street. 
Wilbur  v.  City  of  Springfield,  123 
(11.  395;  Green  v.  City  of  Springfield, 
130  111.  515;  Walker  v.  City  of  Au- 
rora, 140  111.  402,  29  N.  E.  741;  Payne 
v.  Village  of  South  Springfield,  161 
111.  285;  Job  v.  City  of  Alton,  189  111. 
256;  City  of  New  Albany  v.  Cook, 
29  Ind.  220.  Holding  Indiana  spe- 
cial session  acts  of  1865,  c.  30  con- 
stitutional in  its  provisions  for  the 
assessment  of  the  cost  of  local  im- 
provements upon  abutting  property. 
Taylor  v.  City  of  Crawfordsville,  155 
Ind.  403,  58  N.  E.  490;  Kirkland  v. 
Board  of  Public  Works,  142  Ind.  123; 
Hackworth  v.  City  of  Ottumwa,  114 
Iowa,  467,  87  N.  W.  424;  Ft.  Dodge 
Elec.  Light  &  Power  Co.  v.  City  of 
Ft.  Dodge,  115  Iowa,  568,  89  N.  W.  7. 
In  Kentucky  prior  to  the  adoption 
in  1891  of  §  174  of  the  present  con- 
stitution, lands  used  exclusively  for 
agricultural  purposes  although  with- 
in the  limits  of  a  municipal  organ- 
ization were  not  subject  to  taxation 
for  municipal  purposes,  unless  it 
could  be  shown  as  a  fact  that  such 
lands  were  capable  of  and  did  re- 
ceive some  of  the  benefits  supposed 
to  be  derived  from  municipal  or- 
ganization. The  section  referred  to, 
however,  abrogated  this  rule  and 
since  its  adoption  in  the  year  named, 
all  lands  of  whatever  character 
within  the  limits  of  a  city  are  sub- 
ject to  taxation  for  municipal  pur- 


poses. Cases  decided  in  Kentucky 
before  vol.  92  of  the  Kentucky  re- 
ports and  vol.  17  of  the  S.  W.  Re- 
porter follow  the  old  rule  and  later 
decisions  the  new  one. 

Com.  v.  Bank  of  Commerce  (Ky.) 
81  S.  W.  679;  Malchus  v.  District  of 
Highlands,  67  Ky.  (4  Bush)  547. 
Joyes  v.  Shadburn,  11  Ky.  L.  R.  892, 
13  S.  W.  361.  Cost  of  grading  ap- 
portioned according  to  the  front- 
foot  rule.  Com.  v.  Louisville  &  N. 
R.  Co.,  20  Ky.  L.  R.  351,  46  S.  W. 
206;  Shuck  v.  City  of  'Lebanon,  21 
Ky.  L.  R.  969,  53  S.  W.  655;  Ryan 
v.  Central  City,  21  Ky.  L.  R.  1070, 
54  S.  W.  2;  City  of  Augusta  v.  Tay- 
lor, 23  Ky.  L.  R.  1647,  65  S.  W.  837; 
Louisville  &  N.  R.  Co.  v.  Orr,  91  Ky. 
109;  Barber  Asphalt  Pav.  Co.  v.  Go- 
greve,  41  La.  Ann.  251;  City  of  Bal- 
timore v.  Brick  Co.,  80  Md.  458; 
Scott  County  v.  Hinds,  50  Minn.  204; 
City  of  St.  Louis  v.  Lane,  110  Mo. 
254,  19  S.  W.  533.  The  benefits  re- 
sulting from  the  opening  of  an  al- 
ley presumably  accrue  to  the  owners 
only  of  the  property  in  the  block  in 
which  the  alley  is  opened. 

Adams  v.  Green,  74  Mo.  App.  125; 
Sheehan  v.  Owen,  82  Mo.  458; 
Thornton  v.  City  of  Clinton,  148  Mo. 
648.  The  assessment  rate  cannot  be 
so  high  that  its  payment  by  one 
property  owner  will  pay  the  cost  of 
the  improvement,  thus  providing 
against  the  contingency  that  other 
lot  owners  will  fail  to  pay  the  tax. 
Raymond  v.  Borough  of  Rutherford, 
56  N.  J.  'Law,  340,  29  Atl.  156.  The 
front-foot  rule  is  not  necessarily  in- 
consistent with  the  principle  thafc 
land  should  be  assessed  only  in  pro- 
portion to  benefits  received.  Speer 


§  345 


SPECIAL   ASSESSMENTS. 


829 


frontage  being  the  best  measure  or  standard  for  ascertaining  the 
benefits.316     Under  this  method  the  cost  of  making  the  improve- 


v.  City  of  Passaic,  38  N.  J.  Law, 
168;  City  of  Raleigh  v.  Peace,  110 
N.  C.  32,  17  L.  R.  A.  330;  Jaeger  v. 
Burr,  36  Ohio  St.  164.  At  any  rate 
the  assessment  must  be  uniform 
upon  all  property  assessed.  Findlay 
v.  Frey,  51  Ohio  St.  390;  Hand  v. 
Fellows,  168  Pa.  456,  23  Atl.  1126. 
The  legislature  may  give  the  muni- 
cipal authorities  the  choice  of  meth- 
ods. City  of  Scranton  v.  Koehler, 
200  Pa.  126,  49  Atl.  792;  Deblois  v. 
Barker,  4  R.  I.  445;  Winona  &  St. 
P.  R.  Co.  v.  City  of  Watertown,  1  S. 
D.  46;  Harrell  v.  Storrie  (Tex.  Civ. 
App.)  47  S.  W.  838;  Hutcheson  v. 
Storrie  (Tex.  Civ.  App.)  48  S.  W. 
785;  Davis  v.  City  of  Lynchburg,  84 
Va.  861;  City  of  Norfolk  v.  Ellis, 
26  Grat.  (Va.)  224. 

City  of  Seattle  v.  Yesler,  1  Wash. 
T.  571.  An  assessment  arbitrarily 
made  for  the  whole  cost  of  an  im- 
provement of  an  abutting  street  is 
invalid  as  violating  the  constitu- 
tional provision  that  assessments 
must  be  uniform  and  in  accordance 
with  the  value  of  the  property  taxed. 
Dancer  v.  Town  of  Mannington,  50 
W.  Va.  322,  40  S.  E.  475;  Johnson 
v.  City  of  Milwaukee,  40  Wis.  315. 

axe  French  v.  Barber  Asphalt  Pav. 
Co.,  181  U.  S.  324;  Allman  v.  Dis- 
trict of  Columbia,  3  App.  D.  C.  8.  A 
boulevard  twenty  feet  wide  between 
a  building  and  a  street  line  does  not 
make  the  lot  adjoining  not-abutting 
property  so  as  to  exempt  it  from 
an  assessment  for  an  improvement 
in  the  street  fronting  on  such  prop- 
erty. 

Ferine  v.  Erzgraber,  102  Cal.  234, 
36  Pac.  585;  In  re  Market  St.,  49 
Cal.  546.  The  liability  of  abutting 
property  depends  upon  the  legality 


of  the  contract  for  the  construction 
of  the  improvement.  San  Francisco 
Pav.  Co.  v.  Bates,  134  Cal.  39,  66 
Pac.  2;  Martin  v.  Wagner,  120  Cal. 
623;  Palmer  v.  City  of  Danville,  154 
111.  156.  The  same  principle  of  uni- 
formity and  equality  must,  however, 
control  the  levy  of  assessments. 
McKee  v.  Town  of  Pendleton,  154 
Ind.  652;  City  of  Muscatine  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  88  Iowa,  291, 
55  N.  W.  100.  Where  abutting  own- 
ers own  to  the  middle  of  the  street, 
they  are  liable  for  the  cost  of  pav- 
ing that  one-half  of  the  street  next 
abutting  the  lot  lines  irrespective 
of  the  condition  of  the  other  one- 
half. 

Eagle  Mfg.  Co.  v.  City  of  Daven- 
port, 101  Iowa,  493,  70  N.  W.  707, 
38  L.  R.  A.  480.  The  sale  of  a  nar- 
row strip  of  land  from  a  larger  tract, 
the  strip  immediately  abutting  upon 
a  street  undergoing  improvement, 
will  not  relieve  the  tract  of  land 
thus  made  nonabutting  property 
from  its  proportion  of  the  assess- 
ment; the  sale  of  such  strip  being 
clearly  fraudulent  and  for  the  pur- 
pose of  relieving  the  larger  tract  of 
land  of  its  proper  measure  or  pro- 
portion of  the  burden  of  the  con- 
struction of  the  local  improvement. 

McGrew  v.  Kansas  City,  64  Kan. 
61,  67  Pac.  438.  Under  Gen.  St.  1901, 
§  729,  providing  for  an  assessment 
when  property  has  been  divided  into 
lots  and  blocks,  an  unplatted  tract 
of  land  even  though  it  is  surrounded 
by  streets  is  not  regarded  as  a 
"block." 

Barker  v.  Southern  Const.  Co., 
20  Ky.  L.  R.  796,  47  S.  W.  608. 
Where  the  cost  of  constructing  a 
sidewalk  varies  in  different  blocks, 


830 


PUBLIC  REVENUES. 


§  345 


inent  in  or  on  areas  at  the  intersection  of  streets,  alleys  or  high- 
ways, is  usually  paid  from  the  general  revenues.317  The  ques- 
tion of  whether  certain  property  fronts,  adjoins  or  abuts  upon  a 
public  improvement,318  and  the  depth  to  which  accessible,319  is 


each  block  should  be  treated  as  a 
whole  for  the  purpose  of  assessing 
its  cost  upon  abutting  property. 
City  of  Louisville  v.  Selvage,  21  Ky. 
•L.  R.  349,  51  S.  W.  447.  A  gross  in- 
equality  in  apportioning  the  cost  of 
improvement  will  not  be  allowed. 
Allen  v.  Krenning,  23  Mo.  App.  561. 
A  corner  lot  may  be  assessed  for  the 
improvement  of  each  street  though 
such  improvements  are  made  at  the 
same  time  and  are  of  the  same  char- 
acter. 

Jersey  City  v.  State,  30  N.  J.  Law, 
521;  City  of  Cincinnati  v.  Batsche, 
52  Ohio  St.  324,  27  L.  R.  A.  536; 
Wilson  v.  City  of  Salem,  24  Or.  504, 
34  Pac.  9,  691;  Ladd  v.  Gambell,  35 
Or.  393;  Winona  &  St.  P.  R.  Co.  v. 
City  of  Watertown,  1  S.  D.  46; 
Hutcheson  v.  Storrie  (Tex.  Civ. 
App.)  48  S.  W.  785.  The  local  as- 
sessment must  be  levied  for  the 
present  improvement.  City  of  New 
Whatcom  v.  Bellingham  Bay  &  B.  C. 
R.  Co.,  16  Wash.  137.  But  the  ele- 
ment of  benefits,  however,  should 
not  be  disregarded.  Hayes  v.  Doug- 
las County,  92  Wis.  429,  31  L.  R.  A. 
213. 

SIT  Boyle  v.  Tibbey,  82  Cal.  11; 
Bacon  v.  City  of  Savannah,  86  Ga. 
301;  Praigg  v.  Western  Pav.  &  Sup- 
ply Co.,  143  Ind.  358.  One-half  the 
cost  of  such  improvements  only  paid 
by  abutting  property.  Wolf  v.  City 
of  Keokuk,  48  Iowa,  129.  By  or- 
dinance, however,  a  portion  of  its 
cost  must  be  paid  by  abutting  prop- 
erty. City  of  Lawrence  v.  Killam, 
11  Kan.  499;  Boone  v.  Nevine,  15 
Ky.  L.  R.  547,  23  S.  W.  512.  A  spe- 


cial charter  provision,  however,  may 
provide  otherwise.  Town  of  Cen- 
tral Covington  v.  Weighans,  19  Ky. 
L.  R.  1979,  44  S.  W.  985;  Moale  v. 
City  of  Baltimore,  61  Md.  224;  City 
of  Sedalia  v.  Coleman,  82  Mo.  App. 
560;  In  re  Delaware  &  H.  Canal  Co., 
8  N.  Y.  Supp.  352.  Where  the  bene- 
fit rule  obtains  the  cost  of  improving 
street  intersections  is  charged  upon 
property  benefited. 

City  of  Schenectady  v.  Trustees  of 
Union  College,  66  Hun,  179,  21  N.  Y. 
Supp.  147.  Property  owners  liable 
for  the  cost  of  improvements  on 
street  intersections.  People  v.  City 
of  Syracuse,  30  Misc.  409,  63  N.  Y. 
Supp.  878.  In  computing  frontage 
the  width  of  intersecting  streets 
should  not  be  included.  Conde  v. 
City  of  Schenectady,  164  N.  Y.  258, 
reversing  29  App.  Div.  604,  51  N.  Y. 
Supp.  854.  Laws  1893,  c.  190,  ren- 
ders abutting  property  liable  for  the 
cost  of  repaving  street  intersections, 
applying  Schenectady  City  charter, 
§  59,  adopted  in  1890.  Lewis  v.  City 
of  Seattle,  28  Wash.  639,  69  Pac.  393. 
Where  property  benefited  pays  the 
cost  of  the  improvement,  this  will 
include  the  expense  of  improving 
street  intersections. 

sis  Ferine  v.  Lewis,  128  Cal.  236, 
60  Pac.  422,  772;  City  of  Savannah 
v.  Weed,  96  Ga.  670;  Harney  v.  Ben- 
son, 113  Cal.  314;  City  of  Toledo  v. 
Sheill,  53  Ohio  St.  447,  30  L.  R.  A. 
598;  City  of  Springfield  v.  Green, 
120  111.  269;  Chicago,  B.  &  Q.  R.  Co. 
v.  South  Park  Com'rs,  11  111.  App. 
562.  Railroad  right  of  way  which 
merely  crosses  a  street  cannot  be  re- 


§  345 


SPECIAL  ASSESSMENTS. 


one  of  fact  to  be  determined  by  an  examination  of  each  particu- 
lar case.320     The  general  principle,  however,  applies  that  there 


garded  as  abutting  property  for  the 
purpose  of  local  assessment. 

See,  also,  South  Park  Com'rs  v. 
Chicago,  B.  &  Q.  R.  Co.,  107  111.  105; 
Wilbur  v.  City  of  Springfield,  123 
111.  395;  Byram  v.  Foley,  17  Ind. 
App.  629,  47  N.  E.  351;  Indianapolis 
&  V.  R.  Co.  v.  Capitol  Pav.  &  Const. 
Co.,  24  Ind.  App.  114,  54  N.  E.  1076. 

Haley  v.  City  of  Alton,  152  111.  113. 
A  special  assessment  under  the 
frontage  rule  must  be  based  upon 
the  cost  of  the  improvement  from 
which  it  receives  the  benefit.  Mor- 
rison v.  Hershire,  32  Iowa,  271;  Ot- 
tumwa  Brick  &  Const.  Co.  v.  Ainley, 
109  Iowa,  386;  Meyer  v.  City  of  Cov- 
ington,  103  Ky.  546,  45  S.  W.  769; 
Anderson  v.  Bitzer,  20  Ky.  L.  R. 
1450,  49  S.  W.  442;  Elder  v.  Cassilly, 
21  Ky.  L.  R.  1274,  54  S.  W.  836; 
Phillips'  Ex'r  v.  Phillips'  Adm'r,  81 
Ky.  328;  Powers  v.  City  of  Grand 
Rapids,  98  Mich.  393.  Access  to  and 
from  a  bridge  makes  property 
"abutting."  State  v.  Robert  P. 
Lewis  Co.,  72  Minn.  87,  42  L.  R.  A. 
639;  City  of  St.  Louis  v.  Juppier 
(Mo.)  3  S.  W.  401;  Lansing  v.  City 
of  Lincoln,  32  Neb.  457;  Kuhns  v. 
City  of  Omaha,  55  Neb.  183,  75  N. 
W.  562;  Brown's  Estate  v.  Town  of 
Union,  62  N.  J.  Law,  142;  Mans- 
field v.  City  of  Lockport,  24  Misc.  25, 
52  N.  Y.  Supp.  571;  City  of  Toledo 
v.  Sheill,  53  Ohio  St.  447,  42  N.  E. 
323,  30  L.  R.  A.  598;  Haviland  v. 
City  of  Columbus,  50  Ohio  St.  471; 
Sandrock  v.  City  of  Columbus,  51 
Ohio  St.  317.  The  location  of  the 
property  at  the  time  the  assessment 
is  made  controls  the  question  of 
frontage. 

sis  City  of  Denver  v.  Knowles,  17 
Colo.  204,  17  L.  R.  A.  135.  An  as- 


sessment on  the  frontage  basis  is 
not  unfair  where  the  lots  abutting 
the  improvement  are  of  substantial 
and  equal  depth.  Walker  v.  City  of 
Aurora,  140  111.  402;  City  of  Frank- 
fort v.  State,  128  Ind.  438,  27  N.  E. 
1115;  Reeves  v.  Grottendick,  131  Ind. 
107,  30  N.  E.  889.  Act  of  1881  (Rev. 
St.  §  3163)  was  repealed  by  act  of 
1885  (Rev.  St.  1881,  §  3163).  City 
of  Terre  Haute  v.  Mack,  139  Ind.  99, 
38  N.  E.  468;  Amery  v.  City  of  Keo- 
kuk,  72  Iowa,  701;  Allen  v.  City  of 
Davenport,  107  Iowa,  90;  Niklaus  v. 
Conkling,  118  Ind.  289;  Barber  As- 
phalt Pav.  Co.  v.  Watt,  51  'La.  Ann. 
1345;  Schaefer  v.  Selvage,  19  Ky. 
L.  R.  797,  41  S.  W.  569;  Bitzer  v. 
O'Bryan,  21  Ky.  L.  R.  1307,  54  S.  W. 
951;  Fidelity  Trust  &  Safety  Vault 
Co.  v.  Vorris'  Ex'rs,  110  Ky.  315,  61 
S.  W.  474;  Louisville  Steam  Forge 
Co.  v.  Mehler,  112  Ky.  438,  64  S.  W. 
396,  652;  Weed  v.  City  of  Boston, 
172  Mass.  28,  42  L.  R.  A.  642; 
Boehme  v.  City  of  Monroe,  106  Mich. 
401,  64  N.  W.  204;  State  v.  Robert  P. 
Lewis  Co.,  72  Minn.  87,  42  L.  R.  A. 
639;  Wolfort  v.  City  of  St.  Louis, 
115  Mo.  139,  21  S.  W.  912;  Forry  v. 
Ridge,  56  Mo.  App.  615. 

'Long  Branch  Police,  Sanitary  & 
Imp.  Commission  v.  Dobbins,  61  N. 
J.  Law,  659,  40  Atl.  599.  An  assess- 
ment based  on  the  frontage  principle 
is  not  necessarily  erroneous  because 
of  a  lack  of  uniformity  in  the  depth 
of  abutting  lots  if  the  benefit  has 
been  fairly  and  judiciously  assessed 
upon  property  benefited.  In  re  Rog- 
ers Ave.,  29  Abb.  N.  C.  361,  22  N.  Y. 
Supp.  27;  Rolph  v.  City  of  Fargo,  7 
N.  D.  640;  Griswold  v.  Pelton,  34 
Ohio  St.  482;  Bishop  v.  Tripp,  15 
R.  I.  466,  8  Atl.  692;  Tripp  v.  City 


832 


PUBLIC   REVENUES. 


345 


must  be  an  actual  contact  with  or  abutting  upon  4he  local  im- 
provement or  the  street  on  which  it  is  constructed.321  Convey- 
ances of  property  made  for  the  purpose  of  depriving  tracts  of 
land  of  frontage  which  would  otherwise  be  subject  to  local  as- 
sessments based  upon  the  frontage  rule  are  generally  regarded 
as  not  made  in  good  faith  and  as  not  relieving  the  property  from 


of  Yankton,  10  S.  D.  516,  74  N.  W. 
447.  An  equal  special  assessment 
based  upon  the  frontage  rule  where 
the  lots  are  not  of  a  uniform  depth 
is  not  necessarily  repugnant  to  the 
constitutional  provision  requiring 
equality  of  taxation.  Howell  v.  City 
of  Tacoma,  3  Wash.  St.  711;  Griggs 
v.  City  of  Tacoma,  3  Wash.  St.  785; 
Ryan  v.  Town  of  Sumner,  17  Wash. 
228,  49  Pac.  487. 

sac  Farr  v.  West  Chicago  Park 
Com'rs,  167  111.  355,  46  N.  E.  893; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  City  of 
Moline,  158  111.  64,  following  Kueh- 
ner  v.  City  of  Freeport,  143  111.  92,  17 
L.  R.  A.  774,  and  Freeport  St.  R.  Co. 
v.  City  of  Freeport,  151  111.  451.  A 
railroad  right  of  way  in  a  public 
street  is  "contiguous  property"  and 
subject  to  special  taxes  for  local 
improvements  upon  or  in  that  street. 

321  Johnson  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  21;  Chicago, 
B.  &  Q.  R.  Co.  v.  City  of  Quincy,  135 
111.  563,  27  N.  E.  192.  Railroad 
property  separated  only  by  a  side- 
walk from  that  part  of  a  street  which 
it  is  proposed  to  pave  is  "contiguous" 
to  the  proposed  improvement.  Brooks 
v.  City  of  Chicago,  168  111.  60.  Land 
lying  at  the  end  of  a  street  just 
paved  is  subject  to  special  assess- 
ments. McFarlane  v.  City  of  Chi- 
cago, 185  111.  242;  Smith  v.  City  of 
Des  Moines,  106  Iowa,  590,  76  N.  W. 
836;  Gilcrest  v.  McCartney,  97  Iowa, 
138;  Arnold  v.  City  of  Cambridge, 
106  Mass.  352.  The  improvement  of 
two  streets  cannot  be  regarded  as  a 


whole,  each  should  be  considered 
separately  and  with  a  view  to  its 
own  special  circumstances. 

Scott  County  v.  Hinds,  50  Minn. 
204.  In  determining  what  is  actual 
frontage,  the  official  maps  and  plats 
control.  Crane  v.  French,  50  Mo. 
App.  367.  Under  the  frontage  rule 
a  tract  of  land  which  is  separated 
from  the  street  by  a  strip  five  feet 
wide  will  be  considered  fronting  on 
abutting  property.  Erisman  v. 
Chosen  Freeholders  of  Burlington 
County,  64  N.  J.  Law,  516,  45  Atl. 
998;  Matter  of  Ward,  52  N.  Y.  395; 
Mansfield  v.  City  of  Lockport,  24 
Misc.  25,  52  N.  Y.  Supp.  571.  Prop- 
erty facing  upon  two  streets  cannot 
be  assessed  as  an  entirety  for  an 
improvement  upon  one  of  its  streets. 

O'Reilley  v.  City  of  Kingston,  114 
N.  Y.  439;  City  of  Cincinnati  v. 
Batsche,  52  Ohio  St.  324,  27  L.  R.  A. 
536;  40  N.  E.  21;  Raymond  v.  City 
of  Cleveland,  42  Ohio  St.  522;  City 
of  Cincinnati  v.  Anderson,  52  Ohio 
St.  600;  McCormick's  Estate  v.  City 
of  Harrisburg  (Pa.)  18  Atl.  126. 
The  frontage  rule  will  be  valid  even 
though  the  assessment  is  greater 
than  the  value  of  the  lot.  In  re 
Fifty-fourth  St.,  165  Pa.  8,  following 
In  re  Morewood  Ave.,  159  Pa.  20. 
Property  which  does  not  abut  upon 
a  local  improvement  is  not  subject 
to  an  assessment  for  its  proportion 
of  the  cost  even  where  such  im- 
provement furnishes  the  only  means 
of  ingress  and  egress.  In  re  Orkney 
St.,  194  Pa.  425,  48  L.  R.  A.  274. 


§  345 


SPECIAL  ASSESSMENTS. 


833 


the  local  assessment  which  it  was  intended  by  the  conveyance 
or  transfer  should  be  done.322  Legislation  that  arbitrarily  estab- 
lishes the  "front  foot"  or  "frontage"  rule  as  a  basis  for  the 
levy  of  special  assessments  is  not  unconstitutional  even  when 
no  opportunity  is  given  for  a  preliminary  examination  of  the  rel- 
ative benefits  received  by  property  liable  and  assessed.323  The 
usual  objections  made  to  such  legislation  being  that  it  is  a  taking 
of  property  without  due  process  of  law  or  that  it  does  not  give 
the  one  aggrieved  a  right  of  appeal  to  a  jury,82*  or  that  it  is  tax- 
ation without  representation.325 


322  Eagle  Mfg.  Co.  v.  City  of  Dav- 
enport, 101  Iowa,  493,  70  N.  W.  707, 
38   L.   R.   A.   480.     The  conveyance, 
however,  is  not  void  except  for  pur- 
poses   of    assessment;    between   the 
parties  it  is  good.     Ransom  v.  City 
of  Burlington,  111    Iowa,  77,  82  N. 
W.   427;    Gobisch  v.   Inhabitants  of 
North   Bergen,   37    N.    J.    Law,   402. 
In  re  Grant  Ave.,  34  Misc.  724,  70  N. 
Y.  Supp.  1045.     Land  which  is  sepa- 
rated by  a  strip  from  the  local  im- 
provement   under    the    benefit    rule 
may  be  still  subject  to  its  propor- 
tion of  the  local  assessment.     Mayer 
v.  City  of  New  York,  101  N.  Y.  284. 

323  See  cases  cited  in  §  345.  French 
v.  Barber  Asphalt  Pav.  Co.,   181  U. 
S.   324;    Charles  v.  City  of  Marion, 
98  Fed.  166;  Speer  v.  City  of  Athens, 
85  Ga.  49,  9   L.  R.  A.  402;   City  of 
Galesburg  v.   Searles,   114   111.   217; 
State  v.  Reis,  38  Minn.  371;  State  v. 
District    Ct.    St.    Louis    County,    61 
Minn.   542;    Inhabitants  of  Palmyra 
v.  Morton,  25  Mo.  593;    City  of  St. 
Joseph  v.  O'Donoghue,  31  Mo.  345; 
Powell  v.  City  of  St.  Joseph,  31  Mo. 
347;   City  of  St.  Louis  v.  Clemens, 
49    Mo.    552;    Moran   v.   Lindell,    52 
Mo.  229.     The  same  rule  applies  to 
legislation   making   city   authorities 
the   judges    of   what   improvements 
are  necessary  and  what  property  is 

Abb.   Corp.— 53. 


benefited.  City  of  Moberly  v.  Ho- 
gan,  131  Mo.  19;  Rolph  v.  City  of 
Fargo,  7  N.  D.  640,  42  L.  R.  A.  646; 
City  of  Harrisburg  v.  McPherran, 
200  Pa.  343,  49  Atl.  988;  Witman  v. 
City  of  Reading,  169  Pa.  375.  A 
difference  in  value  per  front  foot 
does  not  affect  the  application  of 
the  rule. 

324  French  v.  Barber  Asphalt  Pav. 
Co.,  181  U.  S.  324;  Howe  v.  City  of 
Cambridge,  114  Mass.  388.     A  stat- 
ute authorizing  the  levy  of  special 
assessments  "upon   the    abutters   in 
just   proportion"   is  not  unconstitu- 
tional as   not  affecting  the  propor- 
tion in  which  the  expense  is  to  be 
assessed:  this  is  a  question  of  fact. 
Conde  v.   City  of   Schenectady,   164 
N.    Y.    258;    Roberts    v.    First   Nat. 
Bank,  8  N.  D.  504,  79  N.  W.  1049; 
Schroder  v.  Overman,  61  Ohio  St.  1, 
47  L.  R.  A.  156.     It  is  not  necessary 
that  the  records  should  affirmative- 
ly show  that  the  question  of  bene- 
fit to  the  land  in  question  was  con- 
sidered  in   levying  the   assessment. 
Dancer  v.  Town  of  Mannington,  50 
W.  Va.  322,  40  S.  E.  475. 

325  Masonic  Bldg.  Ass'n  v.  Brown- 
ell,   164   Mass.    306.     Taxpayers   are 
represented   in   and   by  the   legisla- 
ture passing  such  legislation. 


834  PUBLIC  REVENUES.  §  347 

§  346.    Assessment  based  upon  location, 

Property  which  is  benefited  by  the  making  of  a  public  improve- 
ment may  not  directly  front  or  abut  upon  the  improvement  al- 
though it  may,  as  suggested,  have  received  special  benefits  and 
most  substantial  ones  from  its  making.326  It  is  deemed  inequi- 
table that  the  property  thus  specially  benefited  should  escape  its 
share  of  the  cost,  and  to  meet  this  contingency  the  rule  may  be 
adopted  that  all  benefited  adjacent  property  is  taxable  ;  that  the 
cost  of  making  a  local  improvement  should  be  paid  by  all  prop- 
erty that  receives  a  special  benefit  in  excess  of  that  received  by 
the  public  at  large.  The  right  to  levy  in  such  a  case  depends  upon 
propinquity  to  the  public  improvement,327  and  relative  proximity 
therefore  is  the  measure  of  benefit. 

§  347.    Levy  based  upon  ascertained  benefits. 

In  other  states,  the  doctrine  is  well  established  that  all  prop- 
erty without  reference  to  its  location  whether  it  is  near  and  ad- 
jacent or  abutting,  is  liable  for  the  local  assessment  or  tax  in 
the  proportion  that  it  derives  a  benefit  from  the  making  of  the 
local  improvement.  The  rule  as  stated  is  that  local  assessments 
or  taxes  on  particular  estates  are  permissible  and  legal  when 
founded  c  ^eeial  and  particular  benefits  to  the  property  and 


32«  Olsson   v.   City   of   Topeka,   42  upon  all  property  within   a  taxing 

Kan.  709,  21  Pac.  219.  district  without  consideration  of  rel- 

82-  City  of  Little  Rock  v.  Katzen-  ative  distance  of  property  from  the 

stein,   52   Ark.   107,   12   S.   W.   198;  local  improvement  in  this  case  held 

Louisville  &  N.   R.  Co.   v.   City  of  invalid. 

East   St.  Louis,  134   111.  656,  25   N.  McCormick  v.  City  of  Omaha,  37 

E.  962;   West  Chicago  Park  Com'rs  Neb.  829;   People  v.  Common  Coun- 

v.  Farber,  171  111.  146;  Montgomery  cil  of  Kingston,  53  App.  Div.  58,  65 

County  Com'rs  v.   Fullen,   111   Ind.  N.  Y.  Supp.  590.     Land  351  feet  dis- 

410,  12  N.   E.  298;   Caldwell  v.  Ru-  tant   from   a   sewer   and    to   which 

pert,  73  Ky.  (10  Bush)  179;  Stengel  there  is  no  access  is  not  benefited 

v.  Preston,  89  Ky.  616,  13  S.  W.  839;  by  its   construction  and  is  not  lia- 

Dumesnil  v.  Shanks,  97  Ky.  354,  30  ble.     City    Council    v.    Pinckney,    1 

S.  W.  654,  31  S.  W.  864;  Preston  v.  Tread.    Const.    (S.    C.)    42;    Cruik- 

Rudd,  84  Ky.  150;  Lincoln  v.  Street  shanks  v.   City  Council  of  Charles- 

Com'rs  of  Boston,   176  Mass.  210.  ton,  1  McCord   (S.  C.)   360;   Connor 

State  v.  Brill,  58  Minn    152.     An  v.  City  of  Paris,  87  Tex.  32,  27  S. 

arbitrary  levy  of  special  atrasmenta  W.  88. 


347 


SPECIAL  ASSESSMENTS. 


835 


then  only  to  an  amount  not  exceeding  such  benefits.328     In  assess- 
ing property  for  the  payment  of  local  improvements  upon  the 


32s  Farrell  v.  West  Chicago  Park 
Com'rs,  181  U.  S.  404;  Voigt  v.  De- 
troit City,  184  U.  S.  115.  Comp. 
Laws  Mich.  1897,  §  3406,  is  con- 
stitutional which  provides  that  a 
municipal  council  may  assess  the 
whole  or  any  equitable  portion  of 
the  cost  of  a  local  improvement 
upon  benefited  lands  in  the  vicinity 
and  limits  the  assessments  to  the 
benefits  received. 

Robert  J.  Boyd  Pav.  &  Contract- 
ing Co.  v.  Ward  (C.  C.  A.)  85  Fed. 
27.  An  act  which  authorizes  cities 
of  the  third  and  fourth  class  by 
vote  to  accept  the  benefits  of  the 
act  determining  the  basis  of  special 
assessments  for  the  construction  of 
sewers  is  in  contravention  of  that 
provision  of  the  state  which  requires 
all  cities  of  the  same  class  "to  pos- 
sess the  same  powers."  Burlington 
Sav.  Bank  v.  City  of  Clinton,  106 
Fed.  269;  United  States  v.  Edmunds, 
3  Mackey  (D.  C.)  142;  City  Council 
of  Montgomery  v.  Birdsong,  126  Ala. 
632,  28  So.  522;  In  re  Bonds  of  Ma- 
dera  Irr.  Disk,  92  Cal.  296,  14  L. 
R.  A.  755;  Taylor  v.  Palmer,  31  Cal. 
240;  In  re  Market  St.,  49  Cal.  546; 
City  of  Pueblo  v.  Robinson,  12  Colo. 
593.  Property  which  derives  no 
benefit  from  the  construction  of  a 
sewer  cannot  be  assessed  for  any 
portion  of  its  cost. 

Clapp  v.  City  of  Hartford,  35 
Conn.  66;  Terry  v.  City  of  Hartford, 
39  Conn.  286;  Ferguson  v.  Borough 
of  Stamford,  60  Conn.  432;  Murphy 
v.  City  of  Wilmington,  6'  Houst. 
(Del.)  108;  St.  John  v.  City  of  East 
St.  'Louis,  50  111.  92;  Greeley  v.  Peo- 
ple, 60  111.  19;  Goodrich  v.  City  of 
Minonk,  62  111.  121;  Guild  v.  City  of 
Chicago,  82  111.  472;  Warren  v.  City 


of  Chicago,  118  111.  329.  Vacant 
lots  may  be  assessed  for  the  laying 
of  lateral  service  pipes  for  water. 
Barber  v.  City  of  Chicago,  152  111. 
37.  Only  that  portion  of  a  large 
tract  of  land  which  is  specially  ben- 
efited by  a  local  improvement  can 
be  assessed.  Gray  v.  Town  of  Cicero. 
177  111.  459;  Williams  v.  Little  White 
Lick  Gravel  Road  Co.,  1  Wils.  (Ind.) 
7;  Montgomery  County  Com'rs  v. 
Fullen  (Ind.)  13  N.  E.  574. 

Martin  v.  Wills,  157  Ind.  153,  60 
N.  E.  1021.  The  act  of  1889  common- 
ly known  as  the  "Barrett  Law"  is 
constitutional  not  contravening  U. 
S.  Constitution,  amendment  14  pro- 
viding that  no  person  shall  be  de- 
prived of  his  property  without  due 
process  of  law  even  though  it  does 
not  provide  for  any  preliminary 
hearing  for  the  ascertainment  of 
benefits  received  by  the  property 
assessed,  neither  is  it  unconstitu- 
tional as  taking  a  person's  property 
without  just  compensation.  See, 
also,  holding  the  same,  the  case  of 
Pittsburgh,  C.,  C.  &  St.  L.  R.  Co.  v. 
Fish,  158  Ind.  525,  63  N.  E.  454. 

Hendricks  v.  Gilchrist,  76  Ind. 
369;  Adams  v.  City  of  Shelbyville, 
154  Ind.  467,  49  L.  R.  A.  797.  Prop- 
erty cannot  be  assessed  in  excess  of 
the  special  benefits  actually  received. 
Warren  v.  Henly,  31  Iowa,  31;  City 
of  Dubuque  v.  Harrison,  34  Iowa, 
163;  City  of  Atchison  v.  Burnes' 
Estate,  45  Kan.  296;  Moore  v.  City 
of  Paola,  63  Kan.  867,  66  Pac.  1040; 
Gosnell  v.  City  of  Louisville,  20  Ky. 
L.  R.  519,  46  S.  W.  722;  City  of  Au- 
gusta v.  McKibben,  22  Ky.  L.  R. 
1224,  60  S.  W.  291;  Stengel  v.  Pres- 
ton, 89  Ky.  616;  In  re  City  of  New 
Orleans,  20  La.  Ann.  497;  Davies  v. 


836 


PUBLIC  REVENUES. 


§  347 


basis  of  benefits  received,  the  municipal  authorities  have  no  right 
to  change  the  legal  recorded  subdivisions  of  property.    The  prop- 


City  of  New  Orleans,  40  La.  Ann. 
806;  Stark  v.  City  of  Boston,  180 
Mass.  293,  62  N.  E.  375;  French  v. 
City  of  Lowell,  117  Mass.  363;  Motz 
v.  City  of  Detroit,  18  Mich.  495; 
Hoyt  v.  City  of  East  Saginaw,  19 
Mich.  39;  White  v.  City  of  Saginaw, 
67  Mich.  33,  34  N.  W.  255;  Grand 
Rapids  School  Furniture  Co.  v.  City 
of  Grand  Rapids,  92  Mich.  564;  State 
v.  Judges  of  Dist.  Ct.  of  Eleventh 
Judicial  Dist.,  51  Minn.  539. 

Carpenter  v.  Hennepin  County 
Com'rs,  56  Minn.  513.  An  assess- 
ment for  benefits  where  no  provision 
is  made  for  reimbursement  of  dam- 
ages suffered  by  property  owners  is 
invalid;  construing  Sp.  Laws  1891, 
c.  381.  State  v.  Brill,  58  Minn.  152. 
An  assessment  is  void  upon  all  lands 
within  a  local  improvement  (in  this 
case  a  proposed  public  park)  district 
of  a  uniform  amount  regardless  of 
their  relative  distances  from  the 
park. 

State  v.  District  Ct.  of  Ramsey 
County,  75  Minn.  292,  77  N.  W.  968; 
Smith  v.  City  of  St.  Joseph,  122  Mo. 
643,  27  S.  W.  344;  Moran  v.  Lindell, 
52  Mo.  229.  The  legislature  may 
appoint  the  city  authorities  judges 
of  what  local  -improvements  are 
necessary  and  what  property  will  be 
benefited  by  their  construction.  See, 
also,  as  holding  the  same,  City  of 
St.  Louis  v.  Excelsior  Brewing  Co., 
96  Mo.  677,  following  City  of  St. 
Louis  v.  Ranken,  96  Mo.  497,  9  S. 
W.  910.  Hanscom  v.  City  of  Omaha, 
11  Neb.  37;  Cain  T.  City  of  Omaha, 
42  Neb.  120;  City  of  Omaha  v. 
Schaller,  26  Neb.  522,  42  N.  W.  721; 
Parrotte  v.  City  of  Omaha,  61  Neb. 
96,  84  N.  W.  602. 


In  New  Jersoy  the  rule  obtains 
that  property  fronting  upon  a  local 
improvement  is  to  be  assessed,  but 
only  in  proportion  to  the  benefits  re- 
ceived; the  mere  fact  that  it  was 
abutting  property  is  not  a  conclusive 
standard  or  measure  of  the  special 
assessments  that  should  be  levied. 
Essex  Public  Road  Board  v.  Speer, 
48  N.  J.  Law,  372,  9  Atl.  197.  If  no 
benefits  can  be  shown,  property  is 
exempt.  Aldridge  v.  Essex  Public 
Road  Board,  51  N.  J.  Law,  166,  16 
Atl.  695;  Buess  v.  Town  of  West 
Hoboken,  51  N.  J.  Law,  267,  17  Atl. 
110;  Mann  v.  Jersey  City,  24  N.  J. 
Law  (4  Zab.)  662;  Parker  v.  City  of 
New  Brunswick,  30  N.  J.  Law,  395; 
Pope  v.  Town  of  Union,  32  N.  J. 
Law,  343;  City  of  Newark  v.  In- 
habitants of  Verona  Tp.,  58  N.  J. 
Law,  595,  33  Atl.  959;  Felix  v.  At- 
lantic City;  34  N.  J.  Law,  99;  Becker 
v.  Gardner,  34  N.  J.  Law,  327.  A 
uniform  assessment  of  a  fixed  sum 
per  lineal  foot  on  abutting  property 
along  the  line  of  improvement  is 
erroneous  and  should  be  set  aside. 
Hampson  v.  City  of  Paterson,  36  N. 
J.  Law,  159;  Baxter  v.  Jersey  City, 
36  N.  J.  Law,  188;  Pudney  v.  Vil- 
lage of  Passaic,  37  N.  J.  Law,  65. 
But  unless  there  is  proof  of  inequal- 
ity or  injustice  of  an  assessment  per 
lineal  foot,  an  assessment  will  not 
be  necessarily  void. 

Van  Tassel  v.  Jersey  City,  37  N. 
J.  Law,  128.  In  this  case  the  court 
held  void  that  portion  of  the  Jersey 
City  Charter  of  1871,  §  48,  that  each 
lot  should  be  assessed  for  the  labor 
and  materials  used  to  grade  the 
street  in  front  of  it  and  for  its  share 
of  the  intersections  to  be  graded 


347 


SPECIAL  ASSESSMENTS. 


837 


for  the  materials  taken  in  front  of 
it  and  proportionally  from  any 
neighboring  intersection  used  be- 
cause in  total  disregard  of  the  whole 
established  doctrine  that  the  assess- 
ment should  not  exceed  the  benefits 
and  an  assessment  made  thereunder 
must  be  set  aside. 

Chosen  Freeholders  of  Hudson 
County  v.  Paterson  Ave.  &  S.  R, 
Com'rs,-41  N.  J.  Law,  83;  Frevert  v. 
City  of  Bayonne,  63  N.  J.  Law,  202, 
42  Atl.  773.  The  assessment  must 
be  based  upon  the  special  benefits  re- 
ceived by  the  property  in  question. 
Coward  v.  City  of  North  Plainfield, 
63  N.  J.  Law,  61,  42  Atl.  805.  An 
arbitrary  method  for  ascertaining 
benefits  derived  from  local  improve- 
ments will  invalidate  the  assess- 
ment. 

Johnston  v.  Inhabitants  of  Tren- 
ton, 43  N.  J.  Law,  166;  Borton  v. 
City  of  Camden,  65  N.  J.  Law,  511, 
47  Atl.  436;  Dooling  v.  Ocean  City, 
67  N.  J.  Law,  215,  50  Atl.  621.  The 
fact  that  special  assessments  have 
been  apportioned  upon  property  in 
proportion  to  frontage  will  not 
necessarily  make  it  invalid  where 
such  method  properly  apportions 
the  benefits.  Van  Wagoner  v.  City 
of  Paterson,  67  N.  J.  Law,  455,  51 
Atl.  922;  Benjamin  v.  Bog  &  Fly 
Meadow  Co.,  68  N.  J.  Law,  197,  52 
Atl.  215.  An  act  which  authorizes 
the  levy  of  assessments  in  propor- 
tion to  the  quantity  of  land  and  not 
to  the  benefits  received  is  invalid. 
People  v.  City  of  Brooklyn,  4  N.  Y. 
(4  Comst.)  419;  Canal  Bank  v.  City 
of  Albany,  9  Wend.  (N.  Y.)  244; 
Howell  v.  City  of  Buffalo,  37  N.  Y. 
267. 

In  re  Klock,  30  App.  Div.  24,  51  N. 
Y.  Supp.  897.  Where  the  benefit 
rule  obtainr,  an  assessment  on  the 
basis  of  front  footage  is  erroneous 


where  the  property  is  unequally  ben- 
efited by  the  improvement.  Dela- 
ware &  H.  Canal  Co.  v.  City  of  Buf- 
falo, 39  App.  Div.  333,  56  N.  Y.  Supp 
976.  Determining  the  effect  upon 
his  assessment  of  the  construction 
of  a  portion  of  the  local  improve- 
ment by  a  property  owner.  J.  &  A. 
McKechnie  Brewing  Co.  v.  Village  of 
Canandaigua,  162  N.  Y.  631,  57  N. 
E.  1113,  affirming  15  App.  Div.  139, 
44  N.  Y.  Supp.  317.  N.  Y.  Laws 
1887,  c.  266,  provides  for  the  as- 
sessment of  the  cost  of  a  sewer 
against  property  adjoining  it  and 
also  such  other  property  as  may  be 
benefited.  It  is  not  necessary,  there- 
fore, to  the  validity  of  an  assess- 
ment under  this  law,  that  property 
receive  a  benefit  from  the  construc- 
tion of  a  sewer. 

In  re  Church  of  Holy  Sepulchre, 
61  How.  Pr.  (N.  Y.)  315;  In  re 
Church,  92  N.  Y.  1.  A  law  which 
provides  for  the  assessment  of  the 
cost  of  local  improvements  on  prop- 
erty benefited  in  counties  containing 
cities  with  more  than  100,000  in- 
habitants is  not  a  local  law  and 
therefore  constitutional. 

Hoffeld  v.  City  of  Buffalo,  130  N. 
Y.  387.  Where  buildings  are  not 
benefited  by  the  construction  of  a 
local  improvement,  it  is  not  proper 
to  consider  their  value  in  connec- 
tion with  the  levy  of  special  assess- 
ments. 

Smith  v.  City  of  Buffalo,  159  N. 
Y.  427;  Scovill  v.  City  of  Cleveland, 
1  Ohio  St.  126;  Gest  v.  City  of  Cin- 
cinnati, 26  Ohio  St.  275;  Krumberg 
v.  City  of  Cincinnati,  29  Ohio  St. 
69;  Chamberlain  v.  City  of  Cleve- 
land, 34  Ohio  St.  551.  The  whole 
amount  of  the  assessment  must  be 
apportioned  among  the  several  par- 
cels of  land  especially  benefited  in 
proportion  that  the  special  benefit  to 


838 


PUBLIC  REVENUES. 


§   347a 


erty  must  be  proceeded  against  according  to  the  description  by 
which  it  is  legally  known  and  designated  upon  official  maps  or 
plats.829 

(a)  Ascertainment  of  benefits.  The  measure  of  such  benefits 
and  the  manner  of  ascertaining  them  is  established  by  some  arbi- 
trary r  ?thod  provided  by  law,330  usually  either  by  a  municipal 


each  bears  to  the  whole  special  ben- 
efit conferred  by  the  improvement. 

Spangler  v.  City  of  Cleveland,  35 
Ohio  St.  469.  The  assessment  on 
whatever  basis  levied  cannot  exceed 
the  cost  of  the  improvement.  Walsh 
v.  Barron,  61  Ohio  St.  15;  City  of 
Dayton  v.  Bauman,  66  Ohio  St.  379, 
64  N.  E.  433;  Paulson  v.  City  of 
Portland,  16  Or.  450,  1  L.  R.  A.  673. 

Baker  v.  Gartside,  86  Pa.  498.  A 
corner  lot  using  water  from  a  pipe 
laid  on  one  street  cannot  be  assessed 
for  the  cost  of  a  watermain  laid  on 
the  other  and  from  which  the  own- 
er receives  no  benefit.  Woodhouse 
v.  City  of  Burlington,  47  Vt.  301; 
Violett  v.  City  Council  of  Alexan- 
dria, 92  Va.  561,  31  L.  R.  A.  382. 
Under  a  city  charter  which  provides 
for  local  assessments  on  "real  es- 
tate benefited  thereby,"  a  uniform 
assessment  cannot  arbitrarily  be 
made  per  front  foot;  such  would  be 
an  unwarranted  assumption  of  bene- 
fits. Town  of  Elma  v.  Carney,  9 
Wash.  466;  City  of  New  Whatcom  v. 
Bellingham  Bay  Imp.  Co.,  9  Wash. 
639;  Town  of  Tumwater  v.  Fix,  18 
Wash.  153;  Hayes  v.  Douglas  Coun- 
ty, 92  Wis.  429,  65  N.  W.  482,  31  L. 
R.  A.  213;  Kersten  v.  City  of  Mil- 
waukee, 106  Wis.  200,  81  N.  W.  948, 
1103,  48  L.  R.  A.  851;  Sanderson  v. 
Herman,  108  Wis.  662,  84  N.  W. 
890,  85  N.  W.  141;  Friedrich  v.  City 
of  Milwaukee,  114  Wis.  304,  90  N. 
W.  174. 

32»  Cram  v.  City  of  Chicago,  139 
111.  265,  28  N.  E.  758;  Smith  v.  City 


of  Des  Moines,  106  Iowa,  590,  76  N. 
W.  836;  Bancroft  v.  City  of  Boston, 
115  Mass.  377;  Scott  County  v. 
Hinds,  50  Minn.  204;  Schroder  v. 
Overman,  61  Ohio  St.  1,  47  L.  R.  A. 
156;  City  of  Atchison  v.  Price,  45 
Kan.  296,  25  Pac.  605;  City  of  Ft. 
Scott  v.  Kaufman,  44  Kan.  137. 

330  city  of  Little  Rock  v.  Board  of 
Improvements,  42  Ark.  152;  German 
Sav.  &  Loan  Soc.  v.  Ramish,  138 
Cal.  120,  69  Pac.  89,  70  Pac.  1067; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  City  of 
Chicago  (111.)  27  N.  E.  926;  St. 
Louis  Nat.  Stock  Yards  v.  People, 
127  111.  22;  Givins  v.  City  of  Chi- 
cago, 188  111.  348,  58  N.  E.  912; 
Lovitt  v.  Russell,  138  Mo.  474,  40  S. 
W.  123.  The  power  to  assess  bene- 
fits is  possessed  by  the  circuit  court. 

Kansas  City  v.  Ward,  134  Mo.  172; 
Lansing  v.  City  of  Lincoln,  32  Neb. 
457;  Fink  v.  City  of  Newark,  40 
N.  J.  Law,  11;  People  v.  City  of 
Brooklyn,  23  Barb.  (N.  Y.)  166. 
The  decision  of  corporate  authorities 
that  a  proposed  improvement  will 
be  advantageous  to  certain  property 
will  be  conclusive.  Strusburgh  v. 
City  of  New  York,  45  N.  Y.  Super. 
Ct.  (13  J.  &  S.)  508.  An  assess- 
ment for  benefits  is  a  judgment  and 
cannot  be  attacked  collaterally  when 
made  by  a  competent  board.  King 
Real  Estate  Ass'n  v.  City  of  Port- 
land, 23  Or.  199,  31  Pac.  482:  Wat- 
kins  v.  Zwietusch,  47  Wis.  513. 
Where  the  method  provided  by  law 
involves  the  exercise  of  the  judg- 
ment and  discretion  of  the  commis- 


§  347a 


SPECIAL  ASSESSMENTS. 


839 


council,331  duly  qualified  commissioners,332  or  a  jury,333  in  the  man- 
ner provided  by  special  charter  or  statutory  provisions,33*  who 


sioners  in  ascertaining  the  amount 
of  taxes  measured  by  benefits  re- 
ceived, an  arbitrary  calculation  in 
which  there  is  a  failure  to  use  such 
judgment  and  discretion  will  make 
the  assessment  void. 

331  Chicago  &  A.  R.  Co.  v.  City  of 
Joliet,  153  111.  649;  Davis  v.  City  of 
Litchfield,  155  111.  384;  City  of  Burl- 
ington v.  Quick,  47  Iowa,  222;  City 
of  Baltimore  v.  Johns  Hopkins  Hos- 
pital, 56  Md.   1;    Brown  v.   City   of 
Saginaw,   107   Mich.   643,   65   N.  W. 
601.     That   the   members   of   a   city 
council  are  taxpayers  and  therefore 
presumably   interested   is  no   objec- 
tion to  an  assessment  of  benefits  by 
them     for     a     local     improvement. 
Goodrich    v.    City    of    Detroit,    123 
Mich.  559,  82  N.  W.  255;   Carpenter 
v.   City  of  St.  Paul,  23  Minn.   232; 
Savage  v.  City  of  Buffalo,  59  Hun, 
606,  14  N.  Y.  Supp.  101. 

Barnes  v.  Dyer,  56  Vt.  469.  The 
act  of  1878,  p.  219,  which  authorizes 
a  city  council  to  make  local  assess* 
ments  on  abutting  property  for  "so 
much  of  the  expense  thereof  as  they 
shall  deem  just  and  equitable"  is 
unconstitutional  as  providing  no 
fixed,  certain,  and  local  standard  of 
assessment. 

332  Spencer  v.  Merchant,  125  U.  S. 
345.     The  legislature  may  determine 
this   question   for   itself   instead   of 
delegating   it    to    subordinate   agen- 
cies.    The  Court  in   its  opinion   by 
Mr.  Justice  Gray,  said:     "In  the  ab- 
sence  of  any   more   specific   consti- 
tutional restriction  than  the  general 
prohibition  against  taking  property 
without  due  process  of  law,  the  legis- 
lature of  the  state  having  the  power 
to  fix  the  sum  necessary  to  be  levied 
for  the  expense  of  a  public  improve- 
ment and  to  order  it  to  be  assessed 


either  like  other  taxes  upon  proper- 
ty generally  or  only  upon  the  lands 
benefited  by  the  improvement,  is 
authorized  to  determine  both  the 
amount  of  the  whole  tax  and  the 
class  of  lands  which  will  receive 
the  benefit  and  should  therefore, 
bear  the  burden  although  it  may,  if 
it  sees  fit,  commit  the  ascertainment 
of  either  or  both  of  these  facts  to 
the  judgment  of  commissioners. 
When  the  determination  of  the  landg 
to  be  benefited  is  entrusted  to  com- 
missioners the  owners  may  be  en- 
titled to  notice  and  hearing  upon 
the  question  whether  their  lands  are 
benefited  and  how  much  but  the 
legislature  has  the  power  to  deter- 
mine by  the  statute  imposing  the 
tax  what  lands  which  mighc  oe  ben- 
efited by  the  improvement  are  in 
fact  benefited;  and  if  it  does  so,  its 
determination  is  conclusive  upon 
the  owners  and  the  courts  and  the 
owners  have  no  right  to  be  heard 
upon  the  question  whether  their 
lands  are  benefited  or  not,  but  only 
upon  the  validity  of  the  assessment 
and  its  apportionment  among  the 
different  parcels  of  the  class  which 
the  legislature  has  conclusively  de- 
termined to  be  benefited.  In  deter- 
mining what  lands  are  benefited  by 
the  improvement,  the  legislature 
may  avail  itself  of  such  information 
as  it  deems  sufficient  either  through 
investigations  by  its  committees  or 
by  adopting  as  its  own  the  estimates 
or  conclusions  of  others  whether 
those  estimates  or  conclusions  pre- 
viously had  or  had  not  any  legal 
sanction." 

Ferguson  v.  Borough  of  Stamford, 
60  Conn.  432;  Murphy  v.  City  of 
Peoria,  119  111.  509,  9  N.  E.  895; 
Lake  v.  City  of  Decatur,  91  111.  596; 


840 


PUBLIC   REVENUES. 


§  347a 


Latham  v.  Village  of  Wilmette,  168 
111.  153.  The  determination  of  the 
extent  of  benefits  is  within  the  dis- 
cretion of  such  commissioners  and 
in  absence  of  fraud  it  will  not  be  re- 
viewed. 

Bass  v.  South  Park  Com'rs,  171 
111.  370;  Birket  v.  City  of  Peoria, 
185  111.  369;  Mock  v.  City  of  Muncie 
(Ind.)  32  N.  E.  718;  Shank  v.  Smith, 
157  Ind.  401,  61  N.  E.  932,  55  L.  R. 
A.  564.  The  right  of  a  board  of 
trustees  to  adjust  assessments  to 
benefits  is  a  quasi  judicial  power 
and  where  such  board  has  jurisdic- 
tion of  the  person  and  subject  mat- 
ter their  decision  cannot  be  collater- 
ally attacked.  See,  also,  as  holding 
the  same,  Hibben  v.  Smith,  158  Ind. 
206,  62  N.  E.  447. 

Gavin  v.  Decatur  County  Com'rs, 
81  Ind.  480;  Bowditch  v.  Superin- 
tendent of  Streets  of  Boston,  168 
Mass.  239,  46  N.  E.  1026.  McKusick 
v.  City  of  Stillwater,  44  Minn.  372. 
Residents  and  freeholders  of  a  city 
may  lawfully  serve  as  a  commission 
to  award  damages  and  assess  bene- 
fits for  public  improvements.  State 
v.  District  Ct.  of  Ramsey  County,  80 
Minn.  293,  83  N.  W.  183;  Mann  v. 
Jersey  City,  24  N.  J.  Law  (4  Zab.) 
662.  Construing  statute  prescribing 
form  of  oath.  Weldon  v.  Town  of 
West  Hoboken  (N.  J.  Law)  43  Atl. 
535;  Providence  Retreat  v.  City  of 
Buffalo,  29  App.  Div.  160,  51  N.  Y. 
Supp.  654;  Dows  v.  Village  of 
Irvington,  66  How.  Pr.  (N.  Y.)  93. 
The  omission  to  take  an  oath  re- 
quired will  not  invalidate  an  assess- 
ment where  it  was  levied  by  mu- 
nicipal authority  who  are  officers  de 
factor. 

Kelly  v.  City  of  Cleveland,  34 
Ohio  St.  468;  In  re  Burgess  &  Town 
Council  of  Big  Run,  137  Pa.  590. 
Where  a  statute  provides  for  the  ap- 


pointment "of  disinterested  free 
holders"  to  make  assessments  on 
property  which  is  to  be  benefited  by 
the  proposed  public  improvement, 
property  owners  along  the  street 
proposed  to  be  improved  are  incom- 
petent. They  are  not  "disinterested 
free  holders"  within  the  meaning  of 
the  act. 

sss  Kankakee  Stone  &  Lime  Co.  v. 
City  of  Kankakee,  128  111.  173;  Hull 
v.  People,  170  111.  246.  A  right  to  a 
trial  by  jury  may  follow  the  assess- 
ment by  a  municipal  council  or  other 
official  body  as  an  opportunity  for 
an  individual  to  escape  what  may 
be  the  exercise  of  an  arbitrary  pow- 
er. 

Houston  v.  City  of  Chicago,  191 
111.  559.  The  jury  in  such  a  case 
under  Kurd's  Rev.  St.  of  111.  1899, 
p.  373,  cannot  pass  upon  or  deter- 
mine the  necessity  for  the  proposed 
improvement.  Friedenwald  v.  City 
of  Baltimore,  74  Md.  116,  21  Atl. 
555;  City  of  Detroit  v.  Beecher,  75 
Mich.  454,  4  L.  R.  A.  813;  Kansas 
City  v.  Bacon,  157  Mo.  450.  The 
verdict  of  a  jury  omitting  from  as- 
sessment certain  property  will  not 
be  set  aside  when  the  question  of 
benefits  is  one  for  their  determina- 
tion. 

ss*  Dann  v.  Woodruff,  51  Conn. 
203;  Sanitary  Dist.  of  Chicago  v. 
City  of  Joliet,  189  111.  270.  An  as- 
sessment upon  the  basis  of  benefits 
received  is  valid  though  it  happens 
to  correspond  with  frontage  in 
amount  as  compared  with  other 
property.  Turner  v.  Thorntown  & 
M.  Gravel  Road  Co.,  33  Ind.  317; 
Hardwick  v.  Danville  &  N.  G.  Gravel 
Road  Co.,  33  Ind.  321;  In  re  Cen- 
tral Park  Extension,  16  Abb.  Pr. 
(N.  Y.)  56;  In  re  Klock,  30  App. 
Div.  24,  51  N.  Y.  Supp.  897;  King  v. 
City  of  Portland,  38  Or.  402,  63  Pac. 


§  347a 


SPECIAL,  ASSESSMENTS. 


841 


pass  upon  the  questions  submitted,  then  ascertain  and  report  the 
benefits  received  and  levy  the  assessments  in  a  proportionate  man- 


ner/ 


2,  55  L.  R.  A.  812;  Sowles  v.  Village 
of  St.  Albans,  71  Vt.  418.  The  rec- 
ord of  the  commissioners  is  conclu- 
sive evidence  of  the  facts  recited. 

sss  city  of  Springfield  v.  Sale,  127 
111.  359.  If  the  assessments  are 
based  upon  benefits  received  and  this 
appears  from  the  proceedings,  it  is 
immaterial  that  the  street  frontage 
is  given  and  a  clerical  error  in  the 
caption  can  be  corrected. 

Walters  v.  Town  of  Lake,  129  111. 
23.  If  the  commissioners,  whose 
duty  it  is  to  apportion  the  cost  of 
the  improvement  between  the  pub- 
lic and  the  property  especially  bene- 
fited, return  that  the  public  have  re- 
ceived no  benefit  from  the  improve- 
ment and  assess  the  entire  cost  upon 
property  owners,  this  is  conclusive. 

Pike  v.  City  of  Chicago,  155  111. 
656;  Chicago  &  N.  W.  R.  Co.  v.  Vil- 
lage of  Elmhurst,  165  111.  148.  The 
decision  of  a  city  council  that  prop- 
erty was  benefited  by  a  local  im- 
provement is  conclusive  in  the  ab- 
sence of  facts  showing  an  abuse  of 
discretion.  Shurtleff  v.  City  of  Chi- 
cago, 190  111.  473.  In  ascertaining 
benefits  received  it  is  proper  for  the 
commissioners  to  consider  donations 
of  land  or  property  by  the  individual 
against  whose  property  an  assess- 
ment has  been  levied. 

Foley  v.  City  of  Haverhill,  144 
Mass.  352;  Collins  v.  City  of  Hoi- 
yoke,  146  Mass.  298;  Lincoln  v. 
Street  Com'rs  of  Boston,  176  Mass. 
210.  Where  a  statute  granting  au- 
thority does  not  direct  the  manner 
of  assessing  benefits  of  local  im- 
provements as  a  basis  for  the  levy  of 
a  special  assessment  for  their  con- 
struction, the  commissioners  are 


authorized  to  regard  the  improve- 
ments as  a  whole.  Citing,  Norwood 
v.  Baker,  172  U.  S.  269;  Alden  v. 
City  of  Springfield,  121  Mass.  271; 
Sears  v.  City  of  Boston,  173  Mass. 
71,  43  L.  R.  A.  834. 

Medland  v.  Linton,  60  Neb.  249,  82 
N.  W.  866.  The  report  of  commis- 
sioners need  not  show  affirmatively 
that  the  assessments  as  made  were 
based  upon  special  benefits;  this 
will  be  presumed  but  see,  tfowever, 
the  case  of  John  v.  Connell,  64  Neb. 
233,  89  N.  W.  806,  as  holding  that 
under  Compiled  Statutes  1893,  c.  12a, 
§  78,  it  must  affirmatively  appear 
that  the  city  council  as  a  board  of 
equalization  found  that  the  benefits 
were  equal  and  uniform  upon  all 
property  affected  by  the  proposed 
improvement. 

Sinclaire  v.  Town  of  West  Hoboken, 
58  N.  J.  Law,  129,  32  Atl.  65.  Com- 
missioners or  officials  whose  duty  it 
is  to  ascertain  benefits  must  exercise 
their  own  judgment  in  this  respect. 
Works  v.  City  of  Perth  Amboy  (N. 
J.  Law)  36  Atl.  666;  Pudney  v.  Vil- 
lage of  Passaic,  37  N.  J.  Law,  65. 
The  report  of  such  commissioners 
will  not  be  set  aside  merely  upon 
conflicting  evidence  of  the  justice  of 
their  action. 

Coward  v.  City  of  North  Plainfield, 
63  N.  J.  Law,  61,  42  Atl.  805.  The 
judgment  of  the  commissioners  is 
conclusive  in  the  absence  of  fraud 
or  unless  clearly  shown.  Allison 
Land  Co.  v.  Borough  of  Tenafly,  68 
N.  J.  Law,  205,  52  Atl.  231.  The  re- 
port of  the  commissioners  should  af- 
firmatively show  that  the  assess- 
ments do  not  exceed  the  benefits. 
Moran  v.  Jersey  City,  58  N.  J.  Law, 


842 


PUBLIC  REVENUES. 


§   347b 


It  is  not  customary  where  this  method  is  adopted  to  require 
an  agreement  with  the  property  owner  upon  the  assessment  to 
be  paid  by  him,  or,  stated  in  another  way,  the  value  of  the  benefits 
his  property  receives,  nor  other  conditions  usually  accompanying 
the  exercise  of  the  power  of  eminent  domain.336 

(b)  Appeal  from  appraisal  of  commissioners.  The  basis  of 
every  legal  proceeding  by  or  through  which  directly  or  indirectly 
a  person  may  be  deprived  of  a  right  is  notice  to  the  individual 
affected  by  such  proceeding.  This  rule  modified  as  noted  below 
applies  to  the  proceedings  suggested  in  the  preceding  paragraph. 
To  be  valid,  the  owner  must  have  due  notice  of  the  meetings  of 
the  commissioners  or  the  pendency  of  their  proceedings.337  If, 


653.  Such  an  assessment  will  not 
be  set  aside  as  erroneous  unless 
shown  excessive  and  unjust. 

In  re  Munn,  165  N.  Y.  149,  58  N. 
E.  881.  The  action  of  officers  in 
levying  local  assessments  for  the 
construction  of  a  sewer  is  not  con- 
clusive and  is  open  to  investigation 
on  appeal,  especially  where  the  evi- 
dence was  a  gross  discrimination  in 
the  levy  as  to  property  equally  bene- 
fited. O'Reilley  v.  City  of  Kingston, 
114  N.  Y.  439.  In  determining  the 
benefits,  officers  act  judicially.  Mon- 
roe County  v.  City  of  Rochester,  154 
N.  Y.  570.  Special  taxes  when  not 
based  upon  a  uniform  rule  of  assess- 
ment as  to  benefits  received  by  prop- 
erty will  be.  set  aside.  People  v. 
City  of  Buffalo,  159  N.  Y.  571. 

sss  Ferguson  v.  Borough  of  Stam- 
ford, 60  Conn.  432. 

337  Murdock  v.  City  of  Cincinnati, 
44  Fed.  726.  An  owner  of  land  abut- 
ting on  a  street  may,  by  his  con- 
duct, be  estopped  to  complain  of  the 
validity  of  a  local  assessment  based 
upon  lack  of  notice  or  want  of  an 
opportunity  to  be  heard. 

McDonald  v.  Littlefield,  5  Mackey 
(D.  C.)  574.  A  provision  for  giving 
notice  to  landholders  is  mandatory. 


Unless  the  statute  is  followed  in 
this  respect  the  assessment  Is  void. 
City  Council  of  Augusta  v.  King, 
115  Ga.  454,  41  S.  E.  661;  Murphy  v. 
City  of  Peoria,  119  111.  509. 

Jackson  v.  State,  104  Ind.  516.  A 
notice  though  defective  following 
substantially  the  form  required  by 
the  statute  will  not  render  a  judg- 
ment in  a  drainage  proceeding  open 
to  collateral  attack.  See,  also,  City 
of  Baltimore  v.  Johns  Hopkins'  Hos- 
pital, 56  Md.  1,  where  it  was  held 
that  an  ordinance  providing  for  a 
special  assessment  was  not  invalid 
because  it  made  no  provision  for  no- 
tice to  property  owners.  The  court 
held  that  the  levy  of  such  an  assess- 
ment was  an  exercise  of  the  taxing 
power  not  of  the  right  of  eminent 
domain. 

Mann  v.  Jersey  City,  24  N.  J.  Law 
(4  Zab.)  662.  Matter  of  DePeyster, 
80  N.  Y.  565.  Notice  to  the  owner 
need  not  necessarily  be  a  personal 
one.  Hershberger  v.  City  of  Pitts- 
burgh, 115  Pa.  78;  Hutcheson  v. 
Storrie,  92  Tex.  685,  reversing  (Tex. 
Civ.  App.)  48  S.  W.  785.  Legisla- 
tion which  confers  upon  a  municipal- 
ity the  authority  to  assess  property 
for  the  construction  of  a  local  im- 


348 


SPECIAL   ASSESSMENTS. 


843 


however,  the  benefits  accruing  from  local  improvements  are  to 
be  apportioned  according  to  a  fixed  rule  determined  in  advance 
by  legislative  act,  the  property  owner  is  not  entitled  to  notice  or 
hearing  at  the  time  that  assessment  is  made  or  in  respect  to  the 
amount  of  that  assessment.338 

(c)  Right  of  appeal.  Another  essential  to  the  validity  of  legal 
proceedings  and  especially  those  in  which  the  destruction  or  im- 
pairment of  a  right  is  involved  is  an  opportunity  for  its  owner 
to  appeal  to  some  other  and  higher  tribunal  whenever  he  deems 
his  rights  affected  by  the  proceedings  in  question.  The  right  to 
appeal  or  object  must  exist  to  render  proceedings  valid  and  to 
relieve  the  individual  from  a  fraudulent,  arbitrary  and  unjust 
exercise  of  power.839 


§  348. 


What  considered  as  benefits. 


The  general  principle  has  been  stated  that  the  validity  of  spe- 
cial assessments  is  based  upon  the  idea  of  an  equivalent  in  bene- 


provement  is  invalid  when  no  op- 
portunity is  given  a  property  owner 
to  be  heard  on  the  question  of  re- 
sulting benefits  to  his  property. 

sss  Hagar  v.  Reclamation  Dist.  No. 
108,  111  U.  S.  701;  Spencer  v.  Mer- 
chant, 125  U.  S.  345;  Parsons  v.  Dis- 
trict of  Columbia,  170  U.  S.  45; 
Voigt  v.  City  of  Detroit,  184  U.  S. 
115;  Stuart  v.  Palmer,  10  Hun  (N. 
Y.)  23;  English  v.  City  of  Wilming- 
ton, 2  Marv.  (Del.)  63,  37  Atl.  158; 
Allen  v.  City  of  Charlestown,  111 
Mass.  123;  City  of  St.  Louis  v.  Rich- 
eson,  76  Mo.  470;  Beaumont  v.  City 
of  Wilkes-Barre,  142  Pa.  198,  21  Atl. 
888;  Hutcheson  v.  Storrie  (Tex.  Civ. 
App.)  48  S.  W.  785. 

339  Hunerberg  v.  Village  of  Hyde 
Park,  130  111.  156,  22  N.  E.  486; 
Mercy  Hospital  v.  City  of  Chicago, 
187  111.  400,  58  N.  E.  353;  Job  v. 
City  of  Alton,  189  111.  256.  Such  an 
opportunity,  it  is  held  in  this  case, 
is  furnished  by  the  Sidewalk  Act  of 
1875,  §§  4  &  5.  Billings  v.  City  of 


Chicago,  167  111.  337.  The  determin- 
ation of  commissioners  selected  to 
make  an  assessment  in  this  case, 
however,  is  held  to  be  conclusive  of 
the  relative  amount  to  be  paid  by 
the  property  owners  and  the  city 
respectively. ' 

'Chicago  &  E.  R.  Co.  v.  City  of 
Huntington,  149  Ind.  518,  49  N.  E. 
379;  Bowditch  v.  Superintendent  of 
Streets  of  Boston,  168  Mass.  239,  46 
N.  E.  1026.  Certiorari  will  lie  from 
the  action  of  the  superintendent  of 
streets  in  determining  the  absolute 
cost  of  sewers  and  apportioning  it 
among  abutting  owners,  as  duties  in 
this  respect  are  judicial.  City  of 
St.  Louis  v.  Buss,  159  Mo.  9,  59  S. 
W.  969;  Culbertson  v.  City  of  Cin- 
cinnati, 16  Ohio,  574;  Ladd  v.  Spen- 
cer, 23  Or.  193,  31  Pac.  474.  But 
see  Oil  City  v.  Oil  City  Boiler 
Works,  152  Pa.  348,  as  holding  that 
act  of  May  23,  1889,  is  not  unconsti- 
tutional because  an  appeal  is  allow- 
ed to  the  courts  by  property  owners 


844 


PUBLIC  REVENUES. 


§   348 


fits  received  by  the  property  for  the  assessments  paid,  the  ques- 
tion of  what  property  receives  a  benefit  determined  arbitrarily 
according  to  some  fixed  rule  by  the  legislature  or  under  its  di- 
rection by  subordinate  agencies  after  an  examination  of  all  facts 
relating  to  a  particular  assessment.340  The  word  ''benefit"  as 
used  in  connection  with  the  levy  of  special  assessments  conveys 
the  idea  of  a  special  and  peculiar  advantage,  convenience  or  bene- 
fit received  by  particular  property  in  excess  of  that  received 
by  property  in  general.  It  is  the  idea  of  a  special  benefit  as 
contra-distinguished  from  common  or  universal  benefit.  Local 
improvements  are  supposed  to  result  in  an  advantage  or  common 
benefit  to  all  property  within  the  jurisdiction  of  the  taxing  dis- 
trict and  a  special  benefit  to  property  in  its  immediate  vicinity. 
This  question  of  special  benefits  determines,  as  has  been  seen 
from  an  examination  'of  the  authorities  cited  in  a  preceding  sec- 
tion,341 the  exemption  of  certain  property  from  the  levy  of  spe- 
cial assessments  because  of  the  character,342  the  location,343  or 


from  an  assessment  by  the  city 
council  for  the  cost  of  the  construc- 
tion of  a  local  improvement. 

3*0  Keith  v.  City  of  Boston,  120 
Mass.  108;  In  re  City  of  Amsterdam 
(N.  Y.)  27  N.  E.  272.  "Property 
benefited"  is  not  necessarily  limited 
to  property  fronting  upon  the  street 
improvement.  In  re  Klock,  30  App. 
Div.  24,  51  N.  Y.  Supp.  897.  The  de- 
cision by  commissioners  that  cer- 
tain property  receives  a  benefit  from 
the  construction  of  a  local  improve- 
ment is  not  necessarily  conclusive 
but  may  be  reviewed  by  a  court  of 
proper  jurisdiction.  Mansfield  v. 
City  of  Lockport,  24  Misc.  25,  52  N. 
Y.  Supp.  571;  Delaware  &  H.  Canal 
Co.  v.  City  of  Buffalo,  39  App.  Div. 
333,  56  N.  Y.  Supp.  976,  affirmed,  167 
N.  Y.  589,  60  N.  E.  1119;  McKee 
Land  &  Imp.  Co.  v.  Williams,  63 
App.  Div.  553,  51  N.  Y.  Supp.  399, 
71  N.  Y.  Supp.  1141;  Voght  v.  City 
of  Buffalo,  133  N.  Y.  463.  The  fact 
that  a  street  car  track  runs  nearer 


the  property  on  one  side  of  the  street 
than  the  other  may  properly  reduce 
the  benefits  to  be  derived  from  the 
construction  of  a  local  improvement 
in  that  street. 

341  See  §  343,  supra.  Mason  v. 
Spencer,  35  Kan.  512;  Agens  v.  City 
of  Newark,  37  N.  J.  Law,  415;  In  re 
Department  of  Public  Works,  65 
Hun,  619,  19  N.  Y.  Supp.  612. 

3*2  Buffalo  City  Cemetery  v.  City 
of  Buffalo,  46  N.  Y.  503.  See  §  343, 
supra. 

343Holdom  v.  City  of  Chicago, 
169  111.  109.  The  mere  fact  of  con- 
tiguity is  not  conclusive  evidence 
that  property  was  specially  benefited 
by  the  construction  of  a  local  im- 
provement. 

Fulton  v.  City  of  Davenport,  17 
Iowa,  404.  When  the  proprietors  of 
undedicated  property  in  their  per- 
sonal privileges  and  accommodations 
or  in  the  enhancement  to  the  value 
of  their  property  receive  a  benefit 
from  the  proximity  of  municipal 


348 


SPECIAL  ASSESSMENTS. 


845 


the  use344  of  such  property.  In  some  states  the  rule  has  been 
adopted  either  through  statutory  enactment  or  decision  of  the 
courts  that  agricultural  lands,  to  illustrate,  within  the  city  limits 
which  are  incapable  by  their  use  of  receiving  the  benefits  derived 
from  the  construction  of  a  sewer,  cannot  be  charged  with  any 
part  of  its  cost.  In  these  states  the  specific  liability  of  certain 
property,  or  in  other  words,  the  question  of  benefits  received,  is 
determined  by  an  examination  of  particular  facts  in  an  orderly 
proceeding,345 

Illustrations    of   benefits.     The    advancement  of  property  in 
value,346  its  susceptibility  for  drainage  to  a  sewerage  system,847 


improvements  and  accommodations 
and  organization,  the  power  to  tax 
this  property  for  such  purposes  ex- 
ists. Hershey  v.  City  of  Muscatine, 
22  Iowa,  184. 

s**  City  of  Atlanta  v.  First  Pres- 
byterian Church,  86  Ga.  730,  12  L. 
R.  A.  852,  overruling  Trustees  of 
First  M.  E.  Church  v.  City  of  At- 
lanta, 76  Ga.  181.  See  §  343,  supra. 

3*5  Leitch  v.  Village  of  La  Grange, 
138  111.  291,  27  N.  E.  917.  Unplatted 
land  within  a  city  limit  used  only 
for  farming  purposes  but  suscepti- 
ble for  use  as  city  property  for  sub- 
urban residences  is  subject  to  spe- 
cial assessments  for  the  cost  of  a 
proposed  sewer.  Borough  of  South 
Chester  v.  Garland,  162  Pa.  91.  The 
question  is  for  a  jury  to  determine 
whether  certain  lands  claimed  to  be 
rural  or  farm  lands  are  of  this  char- 
acter and  therefore  exempt  from  as- 
sessments for  public  improvements 
because  not  benefited.  City  of  Mc- 
Keesport  v.  Soles,  165  Pa.  628. 

346  Thomas  v.  City  of  Chicago,  152 
111.  292;  Fahnestock  v.  City  of  Peo- 
ria,  171  111.  454;  Mock  v.  City  of 
Muncie  (Ind.)  32  N.  E.  718;  Fried- 
enwald  v.  City  of  Baltimore,  74  Md. 
116,  21  Atl.  555;  City  of  Baltimore  v. 
Smith  &  Schwartz  Brick  Co.,  80  Md. 
458,  31  Atl.  423.  The  burden  of 


proof  is  upon  the  one  attempting  to 
show  an  enhancement  of  value  of 
property  as  the  result  of  opening  a 
street.  Grand  Rapids  School  Furni- 
ture Co.  v.  City  of  Grand  Rapids,  92 
Mich.  564.  There  is  no  need  of  a 
separate  finding  of  the  enhancement 
to  value  of  each  piece  of  property  in 
an  assessment  district.  Kansas  City 
V.  Bacon,  147  Mo.  259,  48  S.  W.  860  r 
City  of  St.  Louis  v.  Lane,  110  Mo. 
254;  Smith  v.  City  of  St.  Joseph,  122 
Mo.  643. 

347  Walker  v.  City  of  Aurora,  140 
111.  402,  29  N.  E.  741;  Kelly  v.  City 
of  Chicago,  148  111.  90.  Distance 
from  a  sewer  does  not  alone  deter- 
mine the  liability  of  the  property 
for  a  portion  of  its  cost;  it  is  mere- 
ly one  of  the  questions  to  be  consid- 
ered in  determining  the  benefits  re- 
ceived by  the  property.  Lipes  v. 
Hand,  104  Ind.  503;  Wright  v.  City 
of  Boston,  63  Mass.  (9  Gush.)  233. 
Vacant  lots  are  properly  assessed  for 
their  portion  of  the  cost  of  build- 
ing a  sewer  in  the  street  fronting 
them. 

Beals  v.  Inhabitants  of  Brookline, 
174  Mass.  1,  54  N.  E.  339;  Vreeland 
v.  City  of  Bayonne,  58  N.  J.  Law, 
126,  32  Atl.  68.  The  possible  bene- 
fits which  will  accrue  to  property  at 
an  unknown  period  in  the  future 


846 


PUBLIC   REVENUES. 


§   348 


the  fact  that  a  water  supply  is  made  available,348  better  facilities 
and  conveniences  for  ingress  and  egress,349  and  a  greater  advan- 
tage or  convenience  of  any  character  resulting  from  the  making 
of  a  local  improvement,350  have  each  and  all  been  held  special 
advantages  or  benefits  sufficient  to  justify  the  imposition  of  local 
assessments  upon  property  receiving  these  benefits.  The  ordinary 
rules  of  evidence  and  practice  will  control  the  courts  in  admit- 
ting testimony  or  evidence  of  such  facts  as  tend  to  show  either  a 
benefit  or  damage  received.351  and  making  a  proper  charge  to  the 
jury  upon  the  questions  involved  in  the  case  and  which  are  to  be 
submitted  to  them  for  their  determination.  Evidence  that  other 
property  not  assessed  was  specially  benefited  or  that  the  property 
has  been  disproportionately  assessed  is  not  usually  admissible,852 


when  a  connecting  branch  sewer  can 
be  laid  will  not  authorize  the  asess- 
ment  of  special  taxes  to  pay  the 
cost  of  a  main  sewer. 

City  of  Bayonne  v.  Morris,  61  N. 
J.  Law,  127,  38  Atl.  819;  Skinkle  v. 
Clinton  Tp.,  39  N.  J.  Law,  656. 
Where  drainage  benefits,  however, 
are  uncertain  and  indirect,  the  pre- 
sumption that  such  lands  are  bene- 
fited by  an  increase  of  healthfulness 
resulting  from  the  construction  of 
the  sewer  or  drain  is  not  a  sufficient 
benefit  to  warrant  the  levy  of  a  spe- 
cial assessment.  King  v.  Reed,  43 
N.  J.  Law,  186.  If  the  land  at- 
tempted to  be  assessed  is  not  sus- 
ceptible of  drainage  or  will  not  be 
benefited  by  the  construction  of  a 
sewerage  system,  it  cannot  be  as- 
sessed for  any  portion  of  its  cost. 
Seaman  v.  City  of  Camden,  66  N.  J. 
Law,  516,  49  Atl.  977.  The  benefits 
derived  may,  however,  be  so  prospec- 
tive and  uncertain  as  to  relieve  land 
of  liability.  People  v.  Adams,  18  N. 
Y.  Supp.  443;  Garratt  v.  Trustees  of 
Canandaigua,  135  N.  Y.  436;  Mich- 
ener  v.  City  of  Philadelphia,  118  Pa. 
535. 

In  the  cases  of  Witman  v.  City  of 


Reading,  169  Pa.  375;  In  re  Park 
Ave.  Sewers,  163  Pa.  433,  and  In  re 
Sewer  on  Beachwood  Ave.,  179  Pa. 
490,  it  is  held  that  mere  suscepti- 
bility to  prospective  benefits  derived 
from  the  construction  of  a  sewer  will 
not  make  property  liable  for  a  por- 
tion of  its  cost  based  upon  benefits 
received. 

348  Baker  v.  Gartside,  86  Pa.  498; 
City  of  Reading  v.  Shepp,  13  Pa.  Co. 
Ct.  R.  634. 

a"  City  of  Omaha  v.  Schaller,  26 
Neb.  522,  42  N.  W.  721. 

sso  piatt  v.  Town  of  Milton,  58  Vt. 
608.  The  increased  trade  and  busi- 
ness caused  by  the  construction  of  a 
highway  is  not  a  sufficient  benefit  to 
warrant  the  levy  of  a  local  assess- 
ment to  pay  the  cost  of  construction. 

351  Hutt  v.  City  of  Chicago,  132  111. 
352;   Philadelphia  &  R.  Coal  &  Iron 
Co.   v.  City  of  Chicago,   158   111.   9; 
Harris  v.  City  of  Chicago,   162   111. 
288;  Houston  v.  City  of  Chicago,  191 
111.  559;   Topliff  v.  City  of  Chicago, 
196  111.  215;   Henning  v.  Stengel,  23 
Ky.  L.  R.  1793,  66  S.  W.  41,   67  S. 
W.  64. 

352  Hughes    v.    City   of    Momence, 
163  111.  535;  Clark  v.  City  of  Chica- 


§  348 


SPECIAL  ASSESSMENTS. 


847 


and  that  as  affecting  other  property  the  proceedings  were  invalid 
is  not  usually  an  error  which  can  be  taken  advantage  of  by  a 
property  owner  against  whose  property  the  proceedings  have 
been  regular.  Under  proper  constitutional  or  statutory  author- 
ity, the  adoption  by  a  legislative  body  of  a  certain  method  is 
conclusive  that  that  method  correctly  determines  the  extent  of 
benefits  received  and  that  they  equal  the  cost  of  the  improve- 
ment levied  against  particular  property.353 


go,  166  111.  84;  Holdom  v.  City  of 
Chicago,  169  111.  109;  Heinroth  v. 
Kochersperger,  173  111.  205;  Farrell 
v.  West  Chicago  Park  Com'rs,  182 
111.  250;  Smythe  v.  City  of  Chicago, 
197  111.  311;  Kizer  v.  Town  of  Win- 
chester, 141  Ind.  694;  Mock  v.  City 
of  Muncie  (Ind.)  32  N.  E.  718. 

Sears  v.  Street  Com'rs  of  Boston, 
173  Mass.  350,  53  N.  E.  876.  Neither 
will  such  a  claim  afford  sufficient 
ground  for  the  court  on  certiorarl 
to  quash  an  assessment.  Lincoln  v. 
Street  Com'rs  of  Boston,  176  Mass. 
210;  Kansas  City  v.  Bacon,  157  Mo. 
450.  Such  objection  cannot  be  rais- 
ed on  appeal  for  the  first  time  but 
should  have  been  made  the  ground 
of  a  motion  for  a  new  trial.  Wilson 
v.  Longstreet,  38  N.  J.  Law,  312; 
Mansfield  v.  City  of  Lockport,  24 
Misc.  25,  52  N.  Y.  Supp.  571.  Neith- 
er will  such  condition  serve  as  a 
basis  for  an  equity  suit  to  vacate 
assessments  made.  Sowles  v.  Vil- 
lage of  St.  Albans,  71  Vt.  418. 

353  French  v.  Barber  Asphalt  Pav. 
Co.,  181  U.  S.  324;  Leitch  v.  Village 
of  La  Grange,  138  111.  291,  27  N.  E. 
917;  Chicago  &  A.  R.  Co.  v.  City  of 
Joliet,  153  111.  649;  Davis  v.  City  of 
Litchfield,  155  111.  384;  Chicago  &  N. 
W.  R.  Co.  v.  Village  of  Elmhurst,  165 
111.  148;  Illinois  Cent.  R.  Co.  v.  Peo- 
ple, 170  111.  224. 

Hull  v.  People,  170  111.  246.  In 
Illinois  by  the  amendment  of  1895 


to  the  City  and  Village  act,  special 
taxes  cannot  exceed  the  special  bene- 
fits accruing  to  the  property  taxed 
and  an  ordinance  providing  a 
method  of  levying  special  assess- 
ments is  not  conclusive  evidence  of 
benefits  received  as  measured  or 
established  by  such  method.  See, 
also,  as  holding  the  same,  Pfeiffer 
v.  People  170  111.  347.  This  case 
also  holds  that  the  amendment  re- 
ferred to  does  not  abolish  the  dis- 
tinction between  taxation  and  spe- 
cial assessments  but  deprives  the 
city  council  of  a  powei  to  conclusive- 
ly determine  the  question  of  special 
benefits. 

LeMoyne  v.  City  of  Chicago,  175 
111.  356.  The  final  judgment  in  pro- 
ceedings to  assess  lands  benefited  is 
conclusive  as  to  the  amount  of  bene- 
fits. City  of  Elkhart  v.  Wickwire, 
121  Ind.  331,  22  N.  E.  342;  City  of 
Ft.  Wayne  v.  Cody,  43  Ind.  197. 
Such  determination  is  conclusive 
and  cannot  be  reviewed  by  any 
other  tribunal  except  that  afforded 
a  corporation  in  making  the  assess- 
ment. 

City  of  Greensburg  v.  Zoller,  28 
Ind.  App.  126,  60  N.  E.  1007.  The 
decision  of  a  city  council  as  to  the 
extent  of  benefits  received  is  con- 
clusive and  cannot  be  attacked  col- 
laterally except  for  fraud.  Leeds  v. 
Defrees,  157  Ind.  392,  61  N.  E.  930; 
Barfield  v.  Gleason,  23  Ky.  L.  R.  128, 


848 


PUBLIC   REVENUES. 


§   349 


§  349.    Levy  based  upon  area  or  comparative  value  of  property. 

The  measure  by  which  the  proper  assessment  to  be  paid  by 
certain  property  is  ascertained  may  be,  instead  of  those  sug- 
gested in  preceding  sections,  the  total  area  of  the  property354  or 


63  S.  W.  964.  The  legislature  has  a 
large  discretion  in  determining  the 
property  specially  benefited  by  the 
construction  of  a  local  improvement 
and  courts  will  not  interfere. 

Davies  v.  City  of  Saginaw,  87 
Mich.  439.  In  the  absence  of  fraud 
or  mistake  the  resolution  of  a  city 
council  declaring  the  amount  to  be 
assessed  for  the  construction  of  a 
local  improvement  on  specific  prop- 
erty is  a  legal  determination  that 
the  benefits  conferred  are  equal  to 
such  amount.  Beecher  v.  City  of 
Detroit,  92  Mich.  268;  Grand  Rapids 
School  Furniture  Co.  v.  City  of 
Grand  Rapids,  92  Mich.  564;  Car- 
penter  v.  City  of  St.  Paul,  23  Minn. 
232;  City  of  Ithaca  v.  Babcock,  72 
App.  Div.  260,  76  N.  Y.  Supp.  49; 
In  re  Roberts,  81  N.  Y.  62. 

Savage  v.  City  of  Buffalo,  131  N. 
Y.  568.  Where  the  common  council 
provides  a  certain  method  for  the 
ascertainment  of  benefits  as  the 
basis  of  levy  of  special  assessments, 
this  must  be  strictly  followed  by 
the  officers  to  whom  ministerial  du- 
ties in  connection  therewith  are  del- 
egated that  such  an  assessment  be 
valid.  Northwestern  &  P.  Hypo- 
theek  Bank  v.  City  of  Spokane,  18 
Wash.  456. 

354  Shumate  v.  Heman,  181  U.  S. 
402  affirming  Heman  v.  Allen,  156 
Mo.  534.  Gillette  v.  City  of  Denver, 
21  Fed.  822;  Niklaus  v.  Conklin,  118 
Ind.  289;  Grimmell  v.  City  of  Des 
Moines,  57  Iowa,  144;  Swain  v.  Ful- 
mer,  135  Ind.  8,  34  N.  E.  639;  City 
of  Covington  v.  Matson,  17  Ky.  L.  R. 
1323,  34  S.  W.  897;  Dumesnil  v. 
Gleason,  18  Ky.  L.  R.  475.  37  S.  W. 


69;  Washle  v.  Nehan  (Ky.)  41  S.  W. 
1040.  The  liability  of  property  to 
local  assessment  may  be,  however, 
dependent  upon  its  contiguity  to  the 
improvement.  Barfield  v.  Gleason. 
23  Ky.  L.  R.  128,  63  S.  W.  964;  Mar- 
shall v.  Barber  Asphalt  Pav.  Co. 
(Ky.)  66  S.  W.  182,  reversing  21 
Ky.  L.  R.  712,  52  S.  W.  1117;  Mal- 
chus  v.  District  of  Highlands,  67  Ky. 
547. 

Thomas  v.  Gain,  35  Mich.  155, 
Johnson  v.  Duer,  115  Mo.  366,  21  S. 
W.  800;  City  of  St.  Joseph  v.  Farrell, 
106  Mo.  437;  New  Brunswick  Rub- 
ber Co.  v.  Street  &  Sewer  Com'rs,  38 
N.  J.  Law,  190;  Benjamin  v.  Bog  & 
Fly  Meadow  Co.,  63  N.  J.  Law,  197, 
52  Atl.  215. 

People  v.  City  of  Buffalo,  39  App. 
Div.  654,  57  N.  Y.  Supp.  1144.  Where 
the  assessment  of  a  uniform  rate  per 
square  foot  within  the  limits  of  an 
assessment  district  properly  shows 
the  benefits  received  by  property 
from  the  construction  of  a  sewer, 
such  an  assessment  is  not  void  even 
where  the  benefits-received  rule  is 
In  force.  Affirmed  in  54  App.  Div. 
629,  66  N.  Y.  Supp.  1139.  See,  also, 
Crowley  v.  Copley,  2  La.  Ann.  329; 
Yeatman  v.  Crandall,  11  La.  Ann. 
220;  Wallace  v.  Shelton,  14  La.  Ann. 
498;  Bishop  v.  Marks,  15  La.  Ann. 
147;  Smith  v.  Town  of  Aberdeen,  25 
Miss.  458;  Daily  v.  Swope,  47  Miss. 
367;  Egyptian  Levee  Co.  v.  Hardin, 
27  Mo.  495. 

But  where  an  act  made  no  pro- 
vision by  which  parties  might  avail 
themselves  of  the  benefit,  and  no 
distinction  between  lots  directly 


§  350 


SPECIAL  ASSESSMENTS. 


849 


its  value  as  determined  by  the  proper  officials  ;355  the  theory  being 
in  the  latter  case  that  property  supposedly  receives  benefits  in 
proportion  to  its  value,  and  in  the  former  case  the  arbitrary 
method  is  employed  as  a  convenient  way  of  ascertaining  the  as- 
sessment to  be  paid. 

§  350.    Individual  liability. 

A  special  assessment  is  an  imposition  of  a  burden  upon  specific 
property.  The  question  of  'ownership  does  not  affect,  as  a  rule, 
the  liability  of  such  property.356  Where  there  is,  as  customary, 


benefited  and  those  benefited  in  a 
more  remote  degree,  this  basis  of 
assessment  was  repudiated  as  un- 
fair and  inequitable.  Thomas  v. 
Gain,  35  Mich.  155. 

355  Town  of  Monticello  v.  Banks, 
48  Ark.  251;  Newman  v.  City  of  Em- 
poria,  41  Kan.  583,  21  Pac.  593; 
Parker  v.  City  of  Atchison,  48  Kan. 
574,  30  Pac.  20;  Blair  v.  City  of 
Atchison,  40  Kan.  353;  Barber  As- 
phalt Pav.  Co.  v.  Watt,  51  La.  Ann. 
1345;  S.  D.  Moody  &  Co.  v.  Chad- 
wick,  52  La.  Ann.  1888;  Snow  v.  City 
of  Fitchburg,  136  Mass.  183;  Walker 
v.  City  of  Ann  Arbor,  118  Mich.  251, 
76  N.  W.  394.  The  basis  of  assess- 
ment was  frontage  according  to  land 
values.  In  re  Whitlock  Ave.,  51 
App.  Div.  436,  64  N.  Y.  Supp.  717. 

Arkansas  and  Tennessee  have  con- 
stitutional provisions  requiring  the 
assessments  to  be  made  on  property 
"according  to  its  true  value  in 
money."  In  Arkansas  under  this 
provision  assessments  for  paving 
cannot  be  levied  according  to  front- 
age (Peay  v.  City  of  Little  Rock,  32 
Ark.  31) ;  and  in  Tennessee  frontage 
assessments  for  paving  are  invalid 
(Taylor  v.  Chandler,  56  Tenn.  [9 
Heisk.]  349). 

sse  Creighton  v.  Manson,  27  Cal. 
613;  Himmelmann  v.  Steiner,  38  Cal. 

Abb.    Corp. — 54. 


175;  Himmelmann  v.  Hoadley,  44 
Cal.  213;  Murphey  v.  City  of  Wil- 
mington, 5  Del.  Ch.  281;  Hoover  v. 
People,  171  111.  182;  Cummings  v. 
West  Chicago  Park  Com'rs,  181  111. 
136;  Hudson  v.  People,  188  111.  103; 
Palmer  v.  Nolting,  13  Ind.  App.  581, 
41  N.  E.  1045;  Busenbark  v.  Clem- 
ents, 22  Ind.  App.  557,  53  N.  E.  665; 
City  of  Muscatine  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  88  Iowa,  291,  55  N.  W. 
100;  City  of  Covington  v.  Boyle,  69 
Ky.  (6  Bush)  204;  Barber  Asphalt 
Pav.  Co.  v.  Watt,  51  La.  Ann.  1345. 

Morey  v.  City  of  Duluth,  75  Minn. 
221,  77  N.  W.  829.  The  term  "own- 
er" as  used  in  the  charter  authorizes 
an  appearance  in  proceedings  levy- 
ing special  taxes  refers  to  all  per- 
sons interested  in  the  land  taxed 
including  mortgagees.  Keith  v. 
Bingham,  100  Mo.  300;  Lincoln  St. 
R.  Co.  v.  City  of  Lincoln,  61  Neb. 
109,  84  N.  W.  802;  City  of  Newark 
v.  State,  34  N.  J.  'Law,  523;  Chancel- 
lor of  State  v.  City  of  Elizabeth,  65 
N.  J.  Law,  483,  47  Atl.  455. 

Marvin  v.  Town,  56  Hun,  510,  10 
N.  Y.  Supp.  148.  The  levy  of  a  spe- 
cial assessment  against  an  individ- 
ual is  void  without  reference  to  or  a 
description  of  the  land  or  object  of 
assessment.  Butler  v.  City  of  Tole- 
do, 5  Ohio  St.  225;  Village  of  St. 


850 


PUBLIC   REVENUES. 


§   351 


no  personal  liability,  an  error  in  the  use  of  a  name  as  party  de- 
fendant supposed  to  be  the  owner  of  the  property  or  a  misjoinder 
of  parties  defendant  is  immaterial357  when  the  property  is  cor- 
rectly described,  though  this  rule  may  be  changed  by  statutory 
provisions.358  When  land  is  occupied  by  an  individual  in  a  fidu- 
ciary or  official  capacity  or  as  lessee,  there  can  be  no  personal 
cause  of  action  against  him  in  any  case.359  Where,  however,  there 
are  statutory  provisions  establishing  or  creating  a  personal  lia- 
bility on  the  part  of  the  owner  of  property,  in  case  of  the  non- 
payment of  special  assessments,360  a  judgment  to  be  valid  must  be 
obtained  under  the  usual  rules  of  law  as  to  parties  and  other 
statutory  requirements  regulating  the  trial  of  cases  and  the  entry 
of  judgments.381 

§  351.    Estoppel  of  taxpayer. 
A  taxpayer  may  be  estopped  through  laches,362  acquiescence363 


Bernard  v.  Kemper,  60  Ohio  St.  244, 
45  L.  R.  A.  662;  Ivanhoe  v.  City  of 
Enterprise,  29  Or.  245,  45  Pac.  771, 
35  L.  R.  A.  58;  City  of  Philahelphia 
v.  Marklee,  159  Pa.  515;  City  of  Gal- 
veston  v.  Heard,  54  Tex.  420;  City, 
of  Seattle  v.  Yesler,  1  Wash.  T.  571. 

357  Conlin  v.  Seamen,  22  Cal.  546; 
Cohen  v.  City  of  Alameda,  124  Cal. 
504;  City  of  New  'London  v.  Miller, 
60  Conn.  112;  Edwards  &  Walsh 
Const.  Co.  v.  Jasper  County,  117 
Iowa,  365,  90  N.  W.  1006;  Masonic 
Bldg.  Ass'n  v.  Brownell,  164  Mass. 
306;  Hill  v.  Warrell,  87  Mich.  135. 
An  assessment  against  a  person  who 
does  not  hold  a  legal  title  is  void 
as  to  such  person.  Remsen  v. 
Wheeler,  51  Hun,  643,  4  N.  Y.  Supp. 
350. 

sss  Ede  v.  Knight,  93  Cal.  159; 
Hutt  v.  City  of  Chicago,  132  111.  352; 
Becker  v.  Baltimore  &  0.  S.  W.  R. 
Co.,  17  Ind.  App.  324,  46  N.  E.  685; 
Brennan  v.  City  of  St.  Paul,  44 
Minn.  464;  Donnelly  v.  City  of 
Brooklyn,  121  N.  Y.  9. 


359  Walford  v.  Hackney  Board  of 
Works,  15  Rep.  10;  Appeal  of  Reese, 
32  Cal.  567;  Morrow  v.  Shober,  19 
Ind.  App.  127,  49  N.  E.  189;  City  of 
Muscatine  v.  Chicago,  R.  I.  &•  P.  R. 
Co.,  88  Iowa,  291;  Smith  v.  Carney, 
127  Mass.  179. 

seo  in  re  Vacation  of  Centre  St., 
115  Pa.  247,  8  Atl.  56;  Deblois  T. 
Barker,  4  R.  I.  445. 

361  City  of  New  Orleans  v.  Wire, 
20  La.  Ann.  500.  A  surviving  widow 
may  be  proceeded  against  under  the 
La.  Statutes  as  being  the  owner  of 
land  abutting  and  adjoining  a  local 
improvement.     City    of    Sedalia    v. 
Gallie,  49  Mo.  App.  392;   Pelthousen 
v.  City  of  Amsterdam,  69  Hun,  505, 
23  N.  Y.  Supp.  424. 

362  Stark   v.    City   of   Boston,   180 
Mass.    293,    62   N.   E.   375;    Taber  v. 
City    of    New    Bedford,    135    Mass. 
162;      Van     Buskirk     v.     City     of 
Bayonne    (N.    J.   Eq.)    38   Atl.   458; 
Liebstein  v.  City  -*  Newark,  24  N. 
J.   Eq.    (9   C.  E.   Green)    200;   Lord 
T.  City  of  Bayonne,  65  N.   J.  Law, 


§  3- 


SPECIAL  ASSESSMENTS. 


851 


or  acceptance  of  benefits,304  from  denying  the  validity  of  a  special 
assessment. 

§  352.     Place  of  assessment. 

It  is  equally  true  with  the  exercise  of  the  right  to  levy  a  special 
assessment  as  with  the  levy  and  collection  of  general  taxes  that 
the  taxing  district  can  only  exercise  this  power  over  property 
within  its  jurisdiction  which  is  limited  by  its  geographical  con- 
fines.365 

§  353.    Acquiring  jurisdiction;  preliminary  proceedings. 

Not  only  must  the  property  which  may  be  chargeable  with  a 
special  assessment  lie  within  the  geographical  limits  of  the  tax- 
ing district,  but  it  also  must  have  been  in  the  manner  provided 
by  law  brought  within  its  jurisdiction  in  other  respects.388  The 
principle  thus  stated  is  one  of  the  most  important  in  connection 
with  the  levy  and  collection  of  special  assessments.  The  power 


127,  46  Atl.  701;  Van  Wagoner  v. 
City  of  Paterson,  67  N.  J.  Law,  455, 
51  Atl.  922;  Wiggin  v.  City  of  New 
York,  9  Paige  (N.  Y.)  16. 

ass  City  of  New  Haven  v.  Fairha- 
ven  &  W.  R.  Co.,  38  Conn.  422; 
Boehme  v.  City  of  Monroe,  106  Mich. 
401,  64  N.  W.  204;  State  v.  District 
Ct.  of  St.  Louis  County,  61  Minn. 
542;  Barker  v.  City  of  Omaha,  16 
Neb.  269;  People  v.  City  of  Utica, 
65  Barb.  (N.  Y.)  1;  Seattle  Transfer 
Co.  v.  City  of  Seattle,  27  Wash.  520, 
68  Pac.  90.  Where,  however,  there 
is  no  statutory  authority  for  cer- 
tain council  proceedings,  a  property 
owner  is  not  estopped  oy  his  failure 
to  object.  See,  also,  10  Am.  Rep. 
399. 

sei  Wyandotte  County  Com'rs  v. 
Hoag,  48  Kan.  413,  29  Pac.  758,  fol- 
lowing, Stewart  v.  Wyandotte  Coun- 
ty Com'rs,  45  Kan.  708;  City  of  Se- 
attle v.  Hill,  23  Wash.  92,  62  Pac. 
446.  A  subsequent  purchaser  may 


be  estopped  through  the  action  of 
his  grantor. 

36oDehail  v.  Morford,  95  Cal.  457; 
Town  of  Woodruff  Place  v.  Raschig, 
147  Ind.  517,  46  N.  E.  990.  The  pre- 
sumption exists  that  property  is 
within  the  jurisdiction  of  the  taxing 
district.  See,  also,  as  holding  the 
same,  Bliss  v.  City  of  Chicago,  156 
111.  584,  41  N.  E.  160;  Wheeler  v. 
People,  153  111.  480;  Stanton  v.  City 
of  Chicago,  154  111.  23;  Meadow- 
croft  v.  People,  154  111.  416;  Young 
v.  People,  155  111.  247;  and  West 
Chicago  St.  R.  Co.  v.  People,  155  111. 
299. 

Golding  T.  Collector  of  Cham- 
bersburg,  37  N.  J.  Law,  258;  Provi- 
dence Retreat  v.  City  of  Buffalo,  31 
App.  Div.  635,  53  N.  Y.  Supp.  1113, 
sustaining  29  App.  Div.  160,  51  N. 
Y.  Supp.  654;  Town  of  Tumwater  v. 
Fix,  18  Wash.  153. 

see  Bates  v.  City  of  Mobile,  46  Ala. 
158. 


852 


PUBLIC   REVENUES. 


to  levy  and  collect  special  assessments  is  one  which  does  not 
exist  as  a  matter  of  common  right  but  must  be  specially  granted 
to  a  municipal  organization  by  the  sovereign.367  The  grant  is 
found  either  in  organic  law,  general  statutes  or  special  legisla- 
tion. That  a  levy  be  legal  and  capable  of  enforcement  in  case 
of  a  failure  to  pay  by  the  property  owner,  the  taxing  district 
must  first  have  acquired  jurisdiction  or  power  over  the  property 


set  Walker  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  352.  Where 
the  authority  is  given  in  a  city  char- 
ter, upon  its  expiration  an  assess- 
ment made  by  an  unauthorized  of- 
ficer is  void.  McManus  v.  Horna- 
day,  99  Iowa,  507,  68  N.  W.  812. 
"The  city  of  Keokuk  exists  under 
a  special  charter,  and  its  powers 
are  derived  from  that  charter  and 
the  statutes.  It  is  a  familiar  rule 
that  when  a  mode  of  exercising  a 
power  granted  is  prescribed,  the 
power  can  only  be  legally  exercised 
in  that  mode.  In  determining 
whether  a  power  is  conferred,  char- 
ters and  statutes  are  strictly  con- 
strued; but  when  the  power  is  ascer- 
tained to  be  conferred,  the  exercise 
of  authority  within  the  recognized 
limits  is  favored  by  the  courts. 
These  principles  are  familiar  and 
undisputed  and  citations  are  un- 
necessary. Guided  by  these  rules, 
we  now  turn  to  the  special  charter 
and  statutes  to  see  whether  a  mode 
of  establishing  and  changing  grade 
is  prescribed.  The  city  of  Keokuk 
was  incorporated  by  chapter  three, 
Acts  2d  General  Assembly,  approv- 
ed December  13,  1848.  Section  13 
of  said  chapter  authorizes  the  city 
council  to  make  and  publish  ordi- 
nances upon  certain  subjects,  among 
which  are  'such  laws  and  ordinances 
as  to  them  shall  seem  necessary  to 
provide  for  the  safety,  preserve  the 
health,  promote  the  prosperity  and 


improve  the  morals,  order,  comfort 
and  convenience  of  said  city  and 
inhabitants  thereof.'  *  *  *  Clear- 
ly if  this  power  is  to  be  exercised 
under  authority  of  this  section,  it 
must  be  by  law  or  ordinance.  *  *  * 
There  is  no  provision  in  the  entire 
act  for  exercising  any  of  the  powers 
conferred  on  the  city  council  by 
merely  passing  a  resolution.  Reso- 
lutions are  not  required  to  be  signed 
nor  published  and  we  do  not  think 
that  a  matter  of  such  importance 
to  property  owners  as  the  estab- 
lishment of  grades  was  intended  to 
be  exercised  by  the  mere  passage  of 
resolutions.  *  *  *  Our  conclusion 
is  that  the  power  conferred  upon  the 
city  council  of  the  city  of  Keokuk 
to  establish  and  change  grades  can 
only  be  legally  exercised  by  the  en- 
actment and  publication  of  ordi- 
nances." 

Ft.  Dodge  Elec.  Light  &  Power 
Co.  v.  City  of  Ft.  Dodge,  115  Iowa, 
568,  89  N.  W.  7;  Heywood  v.  City  of 
Buffalo,  14  N.  Y.  (4  Kern.)  534; 
Pickton  v.  City  of  Fargo,  10  N.  D. 
469,  88  N.  W.  90.  The  repeal  of 
legislation  subsequent  to  the  incep- 
tion of  special  assessment  proceed- 
ings but  before  their  completion  will 
render  them  invalid,  as  the  repeal 
deprives  the  municipality  of  its  au- 
thority to  levy  the  tax.  City  of 
Portland  v.  Bituminous  Pav.  Co.,  33 
Or.  307,  52  Pac.  28. 


§  353 


SPECIAL   ASSESSMENTS. 


853 


liable.588  This  power  is  acquired  only  by  a  strict  and  technical 
compliance  with  the  various  provisions  of  the  law  granting  the 
authority  in  the  first  instance  and  further  providing  the  details  for 
its  exercise.  Such  statutes  are  construed  strictly,389  their  provi- 


seszeigler  v.  Hopkins,  117  U.  S. 
683;  Brady  v.  King,  53  Gal.  44; 
Mulligan  v.  Smith,  59  Cal.  206;  West 
Chicago  Park  Com'rs  v.  Sweet,  167 
111.  326;  Heman  v.  McNamara,  77 
Mo.  App.  1;  Armstrong  v.  Ogden 
City,  12  Utah,  476,  43  Pac.  119,  sus- 
taining 9  Utah,  255,  34  Pac.  53.  The 
decision  by  the  proper  officers  of  a 
municipality  that  it  has  acquired 
such  jurisdiction  is  not  conclusive 
in  an  action  brought  to  enjoin  the 
collection  of  assessments.  The  court 
say  in  part:  "But  appellants  con- 
tend that  the  publication  of  the  no- 
tice of  intention  gave  the  city  coun- 
cil jurisdiction  and  that  the  attempt 
to  dislodge  that  jurisdiction  by  a 
protest  was  a  matter  of  judicial  in- 
quiry upon  the  part  of  the  city 
council  and  the  fact  of  their  having 
determined  that  a  majority  of  the 
front  feet  abutting  had  not  properly 
protested  precluded  any  further  at- 
tack upon  that  decision.  This  rea- 
soning is  absolutely  fallacious.  The 
statute  plainly  provides  that  if  suf- 
ficient objections  are  not  filed  with- 
in the  time  required,  'the  city  coun- 
cil shall  be  deemed  to  have  acquired 
jurisdiction;'  and  of  course  by  rule 
of  statutory  construction,  it  provides 
that  if  a  sufficient  protest  has  been 
filed,  they  fail  to  acquire  jurisdic- 
tion, notwithstanding  any  decision 
the  city  council  might  arrive  at  to 
the  contrary.  Two  essential  facts 
were  necessary  before  the  city  coun- 
cil could  acquire  jurisdiction:  First, 
that  a  proper  and  legal  notice  of  in-- 
tention  had  been  published;  and  sec- 
ond, that  more  than  one-half  of  the 
front  feet  abutting  upon  the  street 


to  be  improved  had  failed  to  object 
within  the  time  specified.  If  these 
two  requirements  did  not  exist,  no 
owner  of  property  within  the  pro- 
posed paving  district  was  concluded 
by  the  decision  of  the  city  council." 
Welty,  Assess.  §  276.  "Until  the 
corporation  acquires  jurisdiction 
over  the  street  to  be  improved,  no 
levy  of  a  tax  or  assessment  on  the 
adjoining  property  is  valid  or  bind- 
ing. The  first  subject  of  inquiry, 
therefore,  is  the  mode  of  acquiring 
jurisdiction  over  the  improvement 
to  be  made,  so  as  to  make  a  valid 
assessment  or  tax.  In  some  cases 
proceedings  are  commenced  by  a  pre- 
liminary survey  and  estimate  of  the 
cost  of  the  work,  followed  by  a  res- 
olution, order  or  ordinance  of  the 
legislative  authority  of  the  town  or 
city;  in  others  by  a  petition  describ- 
ing the  work  to  be  done,  signed  by 
the  owners  of  a  majority  of  frontage 
of  the  street,  part  of  a  street,  or 
other  public  way  sought  to  be  im- 
proved; and  in  still  other  cases,  by 
notice  given  by  the  legislative  au- 
thority of  the  town  or  city  of  the 
intention  to  have  the  particular  im- 
provement made  at  the  cost  of  the 
property  benefited.  Whatever  the 
mode  prescribed  in  the  organic  law 
of  the  municipality,  it  must  be 
strictly,  or  at  least  substantially 
complied  with,  in  order  to  obtain 
jurisdiction  over  the  work.  A  fail- 
ure to  do  so  results  in  a  failure  to 
acquire  jurisdiction,  and  any  pro- 
ceedings had  without  this  prerequi- 
site will  be  null  and  void." 

369  Pittsburgh,   C.,  C.  &  St.  L.   R. 
Co.   v.   Hays,   17    Ind.   App.   261,  44 


S54 


PUBLIC   REVENUES. 


§   353 


sions  are  considered  usually  mandatory,370  and,  in  cases  of  doubt, 
resolved  against  the  corporation  in  favor  of  the  property  owner.371 


N.  E.  375,  45  N.  E.  675,  46  N.  E. 
597.  A  substantial  compliance  with 
the  statutes  will  confer  jurisdiction 
upon  the  authorities.  Case  v.  John- 
son, 91  Ind.  477. 

City  of  Chariton  v.  Holliday,  60 
Iowa,  391;  City  of  Argentine  v.  Sim- 
mons, 53  Kan.  491,  37  Pac.  14; 
Murphy  v.  City  of  Louisville.  72 
Ky.  (9  Bush)  189.  Where  the  mode 
of  action  of  a  municipal  corporation 
is  limited  by  charter  those  contract- 
ing with  it  for  the  construction  of  a 
local  improvement  must  take  no- 
tice of  such  restrictions. 

Barker  v.  Southern  Const.  Co.,  20 
Ky.  L.  R.  796,  47  S.  W.  608;  Inhab- 
itants of  Northampton  v.  Aboil,  127 
Mass.  507;  City  of  Springfield  v. 
Knott,  49  Mo.  App.  612.  Where 
there  is  a  failure  to  comply  literally 
with  all  the  regulations  contained 
in  an  ordinance,  by  which,  however, 
the  special  rights  of  property  own- 
ers are  not  affected,  this  will  not 
invalidate  a  special  tax  bill. 

Saxton  v.  City  of  St.  Joseph,  60 
Mo.  153;  Stewart  v.  City  of  Clinton, 
79  Mo.  603;  Town  of  Trenton  v. 
Coyle,  107  Mo.  193;  Arnett  v.  City 
of  Lambertville  (N.  J.  Law)  6  Atl. 
432;  Vreeland  v.  Jersey  City,  54  N. 
J.  Law,  49;  Finnell  v.  Kates,  19  Ohio 
St.  405;  Hawthorne  v.  City  of  East 
Portland,  13  Or.  271;  Ardrey  v.  City 
of  Dallas,  13  Tex.  Civ.  App.  442,  35 
S.  W.  726;  Kneeland  v.  City  of  Mil- 
waukee, 18  Wis.  411.  "It  is  a  gen- 
eral rule  when  measures  are  author- 
ized by  statute  in  derogation  of  the 
common  law  which  may  result  in 
divesting  the  title  of  one  person  to 
land  and  transferring  it  to  another 
that  every  requisite  having  the  sem- 
blance of  benefit  to  the  owner  must 


be  strictly  complied  with."  Wells 
v.  Burnham,  20  Wis.  112.  State  v. 
City  of  Ashland,  88  Wis.  599.  A  pre- 
liminary assessment  as  required  by 
Laws  1889,  c.  27,  is  essential  to 
the  validity  of  an  assessment  to  pay 
for  improvements. 

370  Michigan  Cent.  R.  Co.  v. 
Huehn,  59  Fed.  335;  Crane  v.  City 
of  Siloam  Springs,  67  Ark.  30;  City 
of  Sterling  v.  Gait,  117  111.  11;  Vil- 
lage of  Hammond  v.  Leavitt,  181  111. 
416;  John  v.  Connell,  61  Neb.  267, 
85  N.  W.  82.  "At  the  time  Popple- 
ton  avenue  was  ordered  graded,  by 
the  city  authorities,  the  charter  of 
1887  had  been  adopted  and  was  in 
force.  By  §  117  (c.  10,  Sess.  Laws 
1887),  it  was  provided:  'Before 
any  street,  avenue,  or  alley  shall  be 
ordered  graded,  the  damages,  if  any; 
by  reason  of  such  grading  to  prop- 
erty along  that  portion  of  the  street 
proposed  to  be  graded,  including  ap- 
proaches thereto,  shall  first  be  as- 
certained and  determined  by  three 
disinterested  freeholders,  who  shall 
be  appointed  by  the  mayor  and 
council  for  that  purpose  who  shall 
make  such  appraisement,  taking  in- 
to consideration  the  benefits,  if  any, 
to  such  property,  and  who  shall  ex- 
clude any  damages  resulting  from 
any  change  or  changes  of  the  origi- 
nal or  first  established  grade,  and 
the  amount  of  damages  so  assessed, 
unless  the  appeal  is  taken,  shall  be 
due  and  payable  to  such  property 
owners,  or  their  agents,  in  sixty 
days  after  the  completion  and  ac- 
ceptance of  such  work  of  grading.' 
The  requirement  of  this  section  in 
regard  to  the  ascertainment  of  dam- 
ages was,  in  our  opinion,  mandatory 
and  indispensable.  It  was  a  condi- 


§  354 


SPECIAL   ASSESSMENTS. 


855 


In  the  succeeding  sections  will  be  considered  some  of  the  steps 
necessary  to  acquire  the  necessary  jurisdiction. 

§  354.    Same  subject. 

The  proceeding's  should  clearly  show  from  their  inception  the 
property  assessed372  and  the  locality  of  the  local  improvement378 


tion  precedent  to  the  exercise  of  the 
power  to  order  the  grading  to  be 
done.  *  *  *  There  was  no  at- 
tempt on  the  part  of  the  city  au- 
thorities to  comply  with  section  117, 
supra,  and  consequently,  they  never 
acquired  jurisdiction  to  levy  the 
grading  tax.  Not  only  was  the  sale 
to  plaintiff  unwarranted  and  null, 
but  the  levy  itself  was  without  law- 
ful authority  and  created  no  lien 
against  defendant's  property."  Cit- 
ing, Von  Steen  v.  City  of  Beatrice, 

36  Neb.   421;    State   v.    Birkhauser, 

37  Neb.  521;  Smith  v.  City  of  Oma- 
ha,   49   Neb.   883;    Ives   v.   Irey,   51 
Neb.  136;   Harmon  v.  City  of  Oma- 
ha, 53  Neb.  164;   Leavitt  v.  Bell,  55 
Neb.  57;  Merrill  v.  Shields,  57  Neb. 
78;  and  Henderson  v.  City  of  South 
Omaha,  60  Neb.  125,  82  N.  W.  315. 

In  re  Delaware  &  H.  Canal  Co., 
8  N.  Y.  Supp.  352:  Void  assessments 
are  not  validated  by  curative  acts. 
See,  also,  cases  cited  in  preceding 
note. 

371  Preston  v.  Roberts,  75  Ky.  (12 
Bush)  570;  City  of  Springfield  v. 
Baker,  56  Mo.  App.  637.  Rev.  St. 
Mo.  1889,  §  1499,  provides  that  a 
special  tax  bill  shall  in  an  action 
thereon  be  prima  facie  evidence  of 
the  regularity  of  all  prior  proceed- 
ings and  in  the  absence  of  evidence 
to  the  contrary  the  court  will  pre- 
sume regularity.  Keith  v.  Bing- 
ham,  100  Mo.  300.  In  the  absence 
of  evidence  against  the  regularity 
of  proceedings,  this  will  be  pre- 
sumed. 


372  Bensinger  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  285;  Blanch- 
ard  v.  Ladd,  135  Gal.  214,  67  Pac. 
131.  Where  the  description  is  void 
on  its  face,  a  failure  to  appeal  will 
not  cure  the  defect.  Diggins  v. 
Hartshorne,  108  Cal.  154;  Cohen  v. 
City  of  Alameda,  124  Cal.  504;  Illi- 
nois Cent.  R.  Co.  v.  City  of  Decatur, 
126  111.  92,  18  N.  E.  315.  A  land 
owner  cannot  object  to  a  description 
which  does  not  include  all  of  the 
property  subject  to  the  assessment 
since  the  insufficiency  results  in  his 
advantage.  Louisville  &  N.  R.  Co. 
v.  City  of  East  St.  Louis,  134  111. 
656;  Dickey  v.  People,  160  111.  587; 
People  v.  Clifford,  166  111.  165;  Harts 
v.  People,  171  111.  458;  Upton  v.  Peo- 
ple, 176  111.  632;  Balfe  v.  Johnson, 
40  Ind.  235. 

Becker  v.  Baltimore  &  0.  S.  W. 
R.  Co.,  17  Ind.  App.  324,  46  N.  E. 
685;  Cleveland,  C.,  C.  &  St.  L.  R. 
Co.  v.  O'Brien,  24  Ind.  App.  547,  57 
N.  E.  47.  An  assessment  describ- 
ing the  property  as  being  "65.65  feet 
of  right  of  way"  of  a  certain  rail- 
road company  is  fatally  defective 
where  the  right  of  way  of  such 
company  extends  through  the  city 
for  many  miles.  Citing,  among  oth- 
er cases,  Van  Sickle  v.  Belknap,  129 
Ind.  558;  City  of  Terre  Haute  v. 
Mack,  139  Ind.  99;  and  Harrison 
Bldg.  &  Deposit  Co.  v.  Lackey,  149 
Ind.  10. 

City  of  Muscatine  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  79  Iowa,  645,  44  N.  W. 
909;  Heman  Const.  Co.  v.  Loevy,  64 


856 


PUBLIC  REVENUES. 


§  354 


for  which  the  assessment  is  levied ;  if  diagrams  or  plats  are  used, 
they  must  contain  such  references  as  will  enable  the  description 
of  the  premises  to  be  understood.37*  As  the  levy  of  a  local  as- 


Mo.  App.  430;  Drew  v.  Merrill,  62 
N.  H.  23;  Jackson  v.  Healy,  20 
Johns.  (N.  Y.)  495;  Hooker  v.  City 
of  Rochester,  30  N.  Y.  Supp.  297; 
Morse  v.  City  of  Buffalo,  35  Hun  (N. 
Y.)  613.  Where  there  is  no  result- 
ing injustice,  however,  from  inac- 
curacy of  the  description,  it  will  not 
impair  the  validity  of  a  sewer  as- 
sessment. Roberts  v.  First  Nat. 
Bank,  8  N.  D.  504,  79  N.  W.  1049; 
Poland  v.  Connolly,  16  Ohio  St.  64. 
A  description,  however,  which  iden- 
tifies the  property  is  sufficient. 
Lewis  T.  Laylin,  46  Ohio  St.  663; 
Baltimore  &  O.  R.  Co.  v.  City  of  Bel- 
laire,  60  Ohio  St.  301;  City  of  Scran- 
ton  T.  Jones,  133  Pa,  219,  19  All. 
347;  Dallas  Title  &  Trust  Co.  v. 
City  of  Oak  Cliffe,  8  Tex.  Civ.  App. 
217,  27  S^  W.  1036;  Kerr  v.  City  of 
CorsicanaX(Tex.  Civ.  App.)  35  S.  W. 
684;  Harrell  v.  Storrie  (Tex.  Civ. 
App.)  47  S.  W.  838. 

373Banaz  v.  Smith,  133  Cal.  102, 
65  Pac.  309;  McDonald  v.  Conniff, 
99  Cal.  386;  McChesney  v.  City  of 
Chicago,  173  111.  75;  People  v.  As- 
sessors of  Utica,  50  App.  Div.  54,  63 
N.  Y.  Supp.  445. 

374Qafney  v.  City  &  County  of 
San  Francisco,  72  Cal.  146,  13  Pac. 
467.  If  a  scale  of  the  map  is  indi- 
cated this  will  be  sufficient;  it  is 
not  necessary  to  have  the  distance 
written  in  figures.  People  v. 
Quackenbush,  53  Cal.  52;  Norton 
v.  Courtney,  53  Cal.  691;  Dyer  v. 
Parrott,  60  Cal.  551. 

Blanchard  v.  Ladd,  135  Cal.  24,  67 
Pac.  131.  "In  this  case  *  *  * 
it  is  found  by  the  court  not  only 
that  the  width  and  grade  of  the 


street  was  never  established,  but,  in 
effect,  that  the  diagram  accompany- 
ing the  assessment  was  never  re- 
corded; and  it  appeared  from  the 
evidence  offered  by  the  plaintiff  to 
make  his  prima  ifacie  case  that 
there  is  in  fact  a  variance  from  the 
original  in  the  copy  of  the  diagram 
in  the  record,  consisting  in  the  po- 
sition of  the  arrow  indicating  direc- 
tion, which  in  the  recorded  copy  is 
at  right  angles  to  Farallones  street, 
and  in  the  original  parallel  with  it. 
The  question  presented  therefore, 
*  *  *  is,  whether  this  is  a  fatal 
variance.  In  considering  this 
question  it  is  to  be  observed  that 
it  appears  from  the  description  of 
the  land  assessed  in  the  complaint, 
and  the  undenied  allegations  with 
reference  thereto,  that  Farallones 
street  runs  east  and  west,  as  in- 
dicated by  the  arrow  in  the  record- 
ed copy  of  the  diagram,  and  conse- 
quently that  the  error  in  the  direc- 
tion of  the  arrow  is  in  the  original, 
and  also  that  the  lot  of  the  defend- 
ant as  described,  was  in  fact  as- 
sessed, as  alleged.  It  follows  that 
the  variance  must  be  regarded  as 
immaterial.  'The  purpose  of  the 
recordation  being  to  carry  notice 
by  an  inspection  of  the  record  to 
the  owner,  and  all  others  having 
dealings  with  the  property,  it  fol- 
lows that  any  variance  between  the 
original  and  the  recorded  instru- 
ments which  defeats  this  purpose 
is  material.  Per  contra,  if  the  dia- 
gram and  assessment  as  recorded, 
do  contain  a  sufficient  description, 
then,  in  this  regard,  any  departure 
from  the  original  form  will  be  held 


§  354 


SPECIAL,  ASSESSMENTS. 


857 


sessment  is  usually  a  proceeding  against  property,  not  an  indi- 
vidual, it  is  not  always  necessary  to  name  correctly  the  owner 
of  property ;  a  mistake  in  this  respect  in  the  name  will  not  vitiate 
subsequent  proceedings.375  When  the  form  of  the  assessment  is 
prescribed  by  statutory  provisions,  ordinarily  these  are  considered 
of  a  mandatory  character  and  the  form  thus  prescribed  must  be 
strictly  followed.376  Statutory  requirements  for  the  recording  of 
contracts  or  warrants  upon  which  the  assessment  is  based  or  the 
certificates  of  the  completion  of  such  contract  unless  regarded  as 
mandatory  will  be  considered  directory  only  and  a  failure  to 
strictly  follow  them  will  not  invalidate  the  assessment  ;377  usually, 


trifling  and  immaterial.' "  Citing, 
Labs  v.  Cooper,  107  Cal.  657. 

Gillis  v.  Cleveland,  87  Cal.  214. 
The  identity  of  the  property  must 
be  ascertained  from  the  recorded 
diagram  without  reference  to  other 
official  maps,  plats  or  records. 

375  De  Koven  v.  City  of  Lake 
View,  129  111.  399,  21  N.  E.  813; 
White  v.  City  of  Alton,  149  111.  626, 
37  N.  E.  96;  Zeigler  v.  People,  164 
111.  531;  Pfeiffer  v.  People,  170  111. 
347;  Smith  v.  City  of  Des  Moines, 
106  Iowa,  590,  76  N.  W.  836;  City 
of  New  Orleans  v.  Ferguson,  28  La. 
Ann.  240;  Gregory  v.  City  of  Ann 
Arbor,  127  Mich.  454,  86  N.  W.  1013; 
Auditor  General  v.  Maier,  95  Mich. 
127;  Gallaher  v.  Bartlett,  2  Mo. 
App.  Rep'r,  1006-1289;  City  of  St. 
Louis  v.  De  Noue,  44  Mo.  136.  But 
see,  however,  Lane  v.  Morrel,  3 
Edw.  Ch.  (N.  Y.)  185,  which  holds 
differently,  a  decision,  however, 
based  upon  a  special  act. 

Gallaher  v.  Bartlett,  64  Mo.  App. 
258;  Farrell  v.  Rammelkamp,  64 
Mo.  App.  425;  Brewer  v.  City  of 
Elizabeth,  66  N.  J.  Law,  547,  49  Atl. 
480.  An  error  in  name  can  be  cor- 
rected under  the  authority  of  a  sub- 
sequent curative  act.  In  re  Munn, 
165  N.  Y.  149,  reversing  49  App. 
•Div.  232,  63  N.  Y.  Supp.  22. 


37«  Stebbins  v.  Kay,  51  Hun  (N. 
Y.)  589;  City  of  Chicago  v.  Wright, 
32  111.  192;  Murphy  v.  City  of 
Louisville,  72  Ky.  (9  Bush)  189; 
Worthington  v.  City  of  Covington, 
82  Ky.  265;  City  of  Lowell  v. 
Wheelock,  65  Mass.  (11  Gush.)  391; 
Brophy  v.  Landman,  28  Ohio  St. 
542;  Flewellin  v.  Proetzel,  80  Tex. 
191,  15  S.  W.  1043;  Allen  v.  City  of 
Galveston,  51  Tex.  302;  City  of 
Spokane  Falls  v.  Browne,  3  Wash. 
St.  84,  27  Pac.  1077. 

377  Connolly  v.  City  &  County  of 
San  Francisco  (Cal.)  33  Pac.  1109. 
A  contractor  through  his  failure  to 
complete  his  contract  forfeits  his 
right  to  any  warrant  or  assessment 
thereunder.  Rauer  v.  Lowe,  107 
Cal.  229,  40  Pac.  337.  Statutes  of 
1891,  p.  205,  require  a  certificate  of 
the  completion  of  street  work  to  be 
signed  by  the  city  engineer  that  the 
moneys  assessed  may  become  a  lien 
on  property  liable  for  the  assess- 
ment. Such  a  certificate  when 
signed  by  a  mere  clerk  under  the 
general  jurisdiction  of  the  city 
engineer  is  not  sufficient.  Brady  v. 
Bartlett,  56  Cal.  350;  Cotton  v.  Wat- 
son, 134  Cal.  422,  66  Pac.  490;  Ede 
v.  Knight,  93  Cal.  159;  Moffitt  v. 
Jordan,  127  Cal.  622;  Allen  v.  City 
of  Galveston,  51  Tex.  302.  See,  also. 


858 


PUBLIC   REVENUES. 


however,  they  are  considered  mandatory  and  the  corresponding 
principle  applies  as  to  the  performance  of  acts  so  required.378 

Local  statutes,  charters  or  ordinances  may  contain  provisions, 
compliance  with  which  is  necessary  on  the  part  of  the  taxing  dis- 
trict that  the  assessment  be  legal  and  result  in  the  required  ju- 
risdiction of  property.  In  some  states  it  is  essential  that  prop- 
erty owners  be  given  an  opportunity  to  construct  the  local  im- 
provement and  only  upon  their  failure  to  act  can  the  municipality 
proceed.379 

The  filing  or  recording  of  plans,  profiles  and  specifications  may 
be  also  necessary  for  the  validity  of  subsequent  proceedings;380 
these  must  contain  a  description  of  the  property  or  district  or 
both  likely  to  be  affected  or  benefited  by  the  proposed  improve- 
ment.381 An  accurate  and  definite  description  of  the  work  to  be 


Jenkins  v.  Stetler,  118  Ind.  275; 
Gearhart  v.  Dixon,  1  Pa.  224. 

378Rauer  v.  Lowe,  107  Cal.  229; 
Frenna  v.  Sunnyside  Land  Co.,  124 
Cal.  437.  Where  the  form  is  de- 
fective, not  being  signed  by  the 
engineer  or  his  deputy  as  required 
by  law,  the  truth  of  its  statements 
will  not  cure  such  defect.  But  see 
the  case  of  Gray  v.  Lucas,  115  Cal. 
430. 

379  Ferine  v.  Forbush,  97  Cal.  305, 
32  Pac.  226.  It  will  be  no  defense 
in  an  action  to  enforce  a  street  as- 
sessment that  the  contract  for  the 
construction  of  the  improvement  re- 
lieves from  assessment  certain 
abutting  property  where  the  owner 
had  previously  constructed  such 
improvement.  California  Imp.  Co. 
v.  Quinchard,  119  Cal.  87;  McChes- 
ney  v.  City  of  Chicago,  173  111.  75; 
Biggins'  Estate  v.  People,  193  111. 
601;  Hawley  v.  City  of  Ft.  Dodge, 
103  Iowa,  573;  Gleason  v.  Barnett, 
22  Ky.  L.  R.  1660,  61  S.  W.  20. 
The  permission  of  the  property 
owners  to  make  the  improvement 
may  be  granted  by  the  municipal 
authorities.  Bonsall  v.  Town  of 


Lebanon,  19  Ohio,  419;  Washington 
v.  City  of  Nashville,  31  Tenn.  (1 
Swan)  177;  Town  of  Franklin  v. 
Maberry,  25  Tenn.  (6  Humph.)  368; 
Fass  v.  Seehawer,  60  Wis.  525. 
Such  action  on  part  of  the  abutter 
may  be  required  by  law. 

sso  Barrett  v.  Falls  City  Artificial 
Stone  Co.,  21  Ky.  L.  R.  669,  52  S. 
W.  947. 

3»i  Grant  v.  Barber,  125  Cal.  188, 
67  Pac.  127.  "In  the  present  case, 
before  the  passage  of  the  resolution 
of  intention,  the  common  council 
adopted  special  specifications  for 
the  grading  of  Figueroa  street,  set- 
ting forth  with  great  minuteness 
the  manner  in  which  the  grading 
was  to  be  completed  and  made 
those  specifications  a  part  of  its 
resolution  of  intention.  The  coun- 
cil must  be  assumed  to  have  known 
the  configuration  on  the  ground 
upon  which  the  work  was  to  be 
done.  *  *  *  Under  this  speci- 
fication a  bidder  could  intelligently 
comprehend  the  amount  of  work  to 
be  done  and  estimate  its  cost;  and 
the  superintendent  *  *  *  could 
determine  whether  the  work  was 


§  354 


SPECIAL   ASSESSMENTS. 


859 


done  is  also  necessary  to  obtain  jurisdiction  of  property  for  the 
purpose  of  levying  the  special  assessment;  this  description  should 
be  in  writing  and  should  be  of  such  a  character  as  to  leave  noth- 
ing open  to  oral  proof.  The  character,  the  extent  or  the  locality 
of  the  improvement,  must  not  be  left  to  the  determination  of 
subordinate  officials  or  municipal  employes.382  .A  designation  of 
the  locality,  or  extent  of  the  work  that  will  be  done  in  a  street, 
by  the  phrases  "where  necessary"  or  "where  required"  or 
"where  not  already  done,"  is  insufficient.  As  well  said,  such  a 
description  of  the  locality  of  the  work  to  be  done  would  give  no 
notice  to  the  landowner  of  an  intention  to  charge  his  property 
with  an  assessment.383  In  some  states  in  order  that  a  special 
assessment  be  valid  it  is  necessary  that  a  special  board  or  public 
official  having  control  or  charge  of  such  property  request  or  take 
other  action  relative  to  the  levy  of  a  special  tax  or  the  institution 
of  special  assessment  proceedings.384  In  other  states  before  these 


performed  in  accordance  with  the 
contract.  *  *  *  If  it  was  nec- 
essary to  construct  culverts  at  any 
place  along  the  line  of  grading  the 
council  should  have  designated 
such  places  as  well  as  the  materials 
01  which  they  were  to  be  construct- 
ed." Haughawout  v.  Hubbard,  131 
Cal.  675. 

382  Peters  v.  City  of  Newark,  31 
N.  J.  Law,  364. 

sss  People  v.  Clark,  47  Cal.  457; 
People  v.  Ladd,  47  Cal.  604;  Rich- 
ardson v.  Haydenfeldt,  46  Cal.  69; 
Himmelmann  v.  McCreery,  51  Cal. 
562;  Andrews  v.  City  of  Chicago,  57 
111.  240.  An  assessment  is  void 
when  based  upon  an  ordinance  pro- 
viding for  an  improvement  in  the 
following  language:  "Curbed  with 
curb  stones,  filled,  graded  and  paved 
with  wooden  blocks  excepting  such 
portions  of  the  above  described  work 
which  have  already  been  done  in 
a  suitable  manner;  said  work  to  be 
done  under  the  superintendence  of 
the  board  of  public  works."  The 
court  said  however,  "what  portion 


had  already  been  done  in  a  suitaule 
manner  was  in  no  way  denned." 
Merrill  v.  Abbott,  62  Ind.  549;  Smith 
v.  Duncan,  77  Ind.  92. 

884  Greenwood  v.  Morrison,  128 
Cal.  350;  Hunt  v.  City  of  Chicago, 
60  111.  183.  An  officer  who  owns 
property  which  is  to  be  affected  by 
the  local  improvement  is  disquali- 
fied by  reason  of  interest  from  par- 
ticipation in  the  preliminary  pro- 
ceedings and  the  assessment  made 
is  void. 

Hundley  v.  Lincoln  Park  Com'rs, 
67  111.  559.  The  corporate  authori- 
ties of  one  town  cannot  participate 
in  assessing  the  property  of  other 
towns,  so  held  where  a  park  was 
situated  partly  in  two  towns  and 
the  proper  authorities  of  each  of 
tne  two  towns  met  in  joint  session 
and  fixed  the  assessment  upon  prop- 
erty in  both  towns. 

West  Chicago  Park  Com'rs  v. 
Sweet,  167  111.  326.  The  West  Chi- 
cago Park  Commissioners  are  "cor- 
porate authorities"  of  the  town 
within  the  meaning  of  constitution, 


860 


PUBLIC   REVENUES. 


.5  355 


proceedings  can  be  sustained,  the  local  legislative  body  must  have 
authorized  the  construction  of  the  local  improvement.385 

§  355.    Execution  of  a  contract. 

Elsewhere  we  find  it  necessary  that  the  proper  authorities  enter 
into  a  contract  for  the  construction  of  the  improvement  before 
any  steps  can  be  taken  for  the  levy  and  collection  of  the  special 
assessments  necessary  to  meet  the  financial  obligations  of  such 
contract.386  Without  its  execution  the  assessment  will  be  invalid, 


art.  IX,  §  9,  and  may,  under 
this  section,  be  authorized  to  levy 
special  assessments  for  the  mak- 
ing of  local  improvements  within 
their  jurisdiction.  See,  also,  West 
Chicago  Park  Com'rs  v.  Farber,  171 
111.  146. 

Murphy  v.  City  of  Chicago,  186 
111.  59.  Where  the  ordinance  does 
not  provide  for  a  majority  report 
of  recommendation,  joint  and  unani- 
mous action  of  the  board  is  neces- 
sary. City  of  Westport  v.  Jack- 
son, 69  Mo.  App.  148;  Equitable 
Trust  Co.  v.  O'Brien,  55  Neb.  735, 
76  N.  W.  417;  Medland  v.  Connell, 
57  Neb.  10,  77  N.  W.  437;  Merrill 
v.  Shields,  57  Neb.  78,  77  N.  W. 
368;  White  v.  City  of  Bayonne,  49 
N.  J.  Law,  311,  8  Atl.  295;  Central 
R.  Co.  v.  City  of  Bayonne,  51  N.  J. 
Law,  428,  17  Atl.  971.  Where  by 
law  the  map  and  report  of  commis- 
sioners of  assessment  should  be 
filed  within  a  certain  time,  the  com- 
mon council  of  Bayonne,  it  was  held 
in  this  case,  might  grant  a  reason- 
able extension  of  time.  See,  how- 
ever, the  case  of  Central  R.  Co.  v. 
City  of  Bayonne,  35  N.  J.  Law,  332, 
which  holds  that  their  neglect  in 
this  respect  would  render  void  their 
proceedings.  Van  Anglen  v.  City 
of  Bayonne,  56  N.  J.  Law,  463,  29 
Atl.  168;  Hendrickson  v.  Borough 


of  Point  Pleasant,  65  N.  J.  Law, 
535,  47  Atl.  465.  Where  an  ineli- 
gible person  acts  as  a  member  of 
a  commission,  assessments  levied 
by  it  will  be  invalid.  Hooker  v. 
City  of  Rochester,  30  N.  Y.  Supp. 
297;  In  re  Schell,  76  N.  Y.  432. 

385  Lewis  v.  City  of  Seattle,  28 
Wash.  639,  69  Pac.  393.  See  post,  §§ 
358  and  359. 

sse  wiles  v.  Hoss,  114  Ind.  371; 
Budd  v.  Kraus,  79  Ind.  137;  City  of 
Argentine  v.  Simmons,  53  Kan.  491, 
37  Pac.  14.  A  change  of  grade  in 
a  proposed  street  improvement  with- 
out the  letting  of  a  new  contract 
for  its  construction  will  invalidate 
the  assessment. 

Home  v.  Mehler,  23  Ky.  L.  R.  1176, 
64  S.  W.  918.  The  cancellation  of 
an  old  contract  and  the  execution 
of  a  new,  it  is  held  in  this  case,  will 
not  in  an  action  between  the  plain- 
tiff, contractor,  and  defendant,  prop- 
erty owner,  entitle  the  latter  to  any 
abatement  of  the  amount  assessed. 
See,  also,  Gibson  v.  O'Brien,  9  Ky. 
L.  R.  639,  6  S.  W.  28,  where  it  is 
held  that  a  variance  between  the 
mayor's  report  regarding  a  street 
improvement  and  the  contract  based 
upon  it  is  no  defense  in  an  action 
by  the  contractor  against  the  abut- 
ting property  owners  after  the  rati- 
fication of  the  contract  and  per- 


355 


SPECIAL  ASSESSMENTS. 


861 


and  further  it  is  essential  that  the  contract  must  be  legal,  namely, 
executed  in  the  manner  required  by  law,357  observing  all  the  re- 
quirements for  competitive  bidding  if  such  exist.388  A  legal  con- 
tract must  exist  as  a  basis  for  legal  proceedings,  instituting  and 
collecting  local  assessments.389  In  some  jurisdictions  not  only 
must  the  contract  be  executed  as  above  stated  but  the  work  called 
for  must  be  fully  completed.390  An  immaterial  variance  or  a  ma- 


formance  of  the  work.  Oakley  v. 
Atlantic  City,  68  N.  J.  Law,  127. 

SST  Ede  v.  Knight,  93  Cal.  159.  The 
presumption  exists  that  the  con- 
tract had  been  duly  executed  and 
performed.  Gray  v.  Richardson,  124 
Cal.  460;  Union  Pav.  &  Contracting 
Co.  v.  McGovern,  127  Cal.  638; 
Clingman  v.  People,  183  111.  339; 
McEwen  v.  Gilker,  38  Ind.  233;  City 
of  Terre  Haute  v.  Lake,  43  Ind.  480; 
Ottumwa  Brick  &  Const.  Co.  v.  Ain- 
ley,  109  Iowa,  386.  The  fact  that  a 
contract  let  for  a  street  improve- 
ment does  not  conform  exactly  to 
the  ordinance  is  not  jurisdictional 
and  such  a  variance  may  be  disre- 
garded if  not  prejudicial  to  property 
owners.  Bogard  v.  O'Brien,  14  Ky. 
L.  R.  648,  20  S.  W.  1097. 

sss  Edwards  v.  Berlin,  123  Cal. 
544;  Dewey  v.  City  of  Des  Moines, 
101  Iowa,  416;  Fishburn  v.  City  of 
Chicago,  171  111.  338,  39  L.  R.  A.  482; 
Alberger  v.  City  of  Baltimore,  64 
Md.  1.  Inviting  proposals  for  ma- 
terial for  the  repaving  of  a  street  in 
common  with  other  streets  instead 
of  separately  as  required  by  ordi- 
nance does  not  necessarily  invali- 
date an  assessment  levied  to  pay 
the  cost  of  such  repaving.  Bambrick 
v.  Campbell,  37  Mo.  App.  460;  Peo- 
ple v.  Board  of  Improvement,  43  N. 
Y.  227.  See,  also,  §  262,  supra. 

389  Reid  v.  Clay,  134  Cal.  207,  66 
Pac.  262;  City  of  Meriden  v.  Camp, 
46  Conn.  284.  The  assessment  can 


be  made  either  before  or  after  the 
completion  of  the  work.  City  of 
Connersville  v.  Merrill,  14  Ind.  App. 
303;  Pittsburg,  C.,  C.  &  St.  L.  R. 
Co.  v.  Hays  (Ind.  App.)  44  N.  E. 
375.  A  substantial  compliance  with 
the  statute  will  confer  jurisdiction 
upon  the  authorities.  Willard  v.  Al- 
bertson,  23  Ind.  App.  162,  53  N.  E. 
1076,  54  N.  E.  446;  Levi  v.  Coyne,  22 
Ky.  L.  R.  493,  57  S.  W.  790.  A  fail- 
ure to  complete  a  contract  within  the 
time  set  is  no  defense  to  an  assess- 
ment where  the  failure  was  waived 
by  the  proper  city  authorities. 

Bowditch  v.  Superintendent  of 
Streets,  168  Mass.  239,  46  N.  E.  1026; 
Kansas  City  v.  O'Connor,  82  Mo. 
App.  655.  Street  sprinkling  is  not  a 
local  improvement  for  which  local 
assessments  can  be  levied  to  pay  the 
cost  and  a  performance  or  part  per- 
formance of  a  contract  for  sprink- 
ling will  not  legalize  such  a  con- 
tract or  validate  an  assessment  based 
upon  it.  As  the  court  said,  "part 
performance  will  not  validate  an  ul- 
tra vires  contract."  Quinn  v.  City  of 
New  York,  16  App.  Div.  408,  45  N. 
Y.  Supp.  7.  City  of  Philadelphia  v. 
Jewells'  Estate  (Pa.)  20  Atl.  281. 
A  paving  contract  void  because  not 
completed  in  time  may  be  revived 
by  general  ordinance. 

390  Blair  v.  Luning,  76  Cal.  134,  18 
Pac.  153;  Doane  v.  Houghton,  75 
Cal.  360;  Wood  v.  Strother,  76  Cal. 
545;  Wilbur  v.  City  of  Springfield, 


862 


PUBLIC   REVENUES. 


§    356 


terial  one  which  has  been  ratified  by  the  proper  authorities  will 
not  usually,  as  a  defense,  be  available  to  the  property  owner  iu  an 
action  brought  to  enforce  the  payment  of  a  special  assessment.391 

§  356.    Preliminary  investigation  or  estimates. 

It  is  a  common  requirement  that  before  a  special  assessment  can 
be  legally  levied  and  collected,  an  investigation  into  the  advisa- 
bility and  feasibility  of  the  construction  of  the  local  improvement 
must  be  made  by  civil  engineers  or  commissioners,392  and  an  es- 


123  111.  395;  Craig  v.  People,  193  I1L 
199. 

Fralich  v.  Barlow,  25  Ind.  App. 
383,  58  N.  E.  271.  The  estimate  of 
the  engineer  was  conclusive  upon 
the  quantity  of  the  work  done.  Dit- 
toe  v.  City  of  Davenport,  74  Iowa, 
66;  Shaw  v.  Des  Moines  County,  74 
Iowa,  679 ;  State  v.  City  of  Neodesha, 
3  Kan.  App.  319,  45  Pac.  122.  In 
this  case,  the  court  writing  the  syl- 
labus says:  "The  mayor  and  com- 
mon council,  having  authority  to 
make  improvements  cannot  make 
the  assessments  to  pay  for  the  con- 
templated improvements  until  the 
walks  are  built.  They  must,  in  the 
first  instance,  contract  for  building 
and  create  the  indebtedness,  and  then 
ascertain  the  cost  of  the  same.  This 
must  necessarily  precede  making  the 
assessments  on  abutting  lots  to  pay 
for  the  same.  The  indebtedness  be- 
ing created  and  assessments  made, 
the  mayor  and  council  are  author- 
ized to  issue  warrants  on  the  treas- 
urer for  the  payment  of  the  same, 
specifying  the  nature  of  the  claim 
for  which  it  is  issued  and  the  fund 
out  of  which  it  is  payable  and  the 
treasurer  must  pay  the  same  out 
of  the  proper  funds  on  presentation 
of  the  warrants  when  he  has  money 
in  his  hands  for  the  payment  of 
such  warrants."  Nevin  v.  Roach.  86 


Ky.  492;  City  of  Westport  v.  Mas- 
tin,  62  Mo.  App.  647. 

s»i  McDonald  v.  Mezes,  107  Cal. 
492,  40  Pac.  808;  Hadley  v.  Dague, 
130  Cal.  207,  62  Pac.  500;  Holloran 
v.  Morman,  27  Ind.  App.  309,  59  N. 
E.  869;  Ottumwa  Brick  &  Const.  Co. 
v.  Ainley,  109  Iowa,  386;  Gibson  v. 
O'Brien,  9  Ky.  L.  R.  639,  6  S.  W.  28; 
Home  v.  Mehler,  23  Ky.  L.  R.  1176, 
64  S.  W.  918;  City  of  Baltimore  v. 
Raymo  (Md.)  13  Atl.  383;  Toop  v. 
City  of  New  York,  13  N.  Y.  Supp. 
280;  Dady  v.  City  of  New  York,  57 
Hun  (N.  Y.)  456;  Gilmore  v.  City 
of  Utica,  131  N.  Y.  26;  People  v. 
City  of  Buffalo,  147  N.  Y.  675;  Mur- 
phy v.  City  of  Albina,  22  Or.  106,  29 
Pac.  353.  The  question  of  what  is 
an  acceptance  or  ratification  is  one 
of  fact  to  be  determined  by  the  evi- 
dence. The  ratification  of  a  con- 
tract will  not  be  presumed  from  the 
subsequent  use  of  the  improved 
street  or  the  acceptance  of  the  work. 

302  Edgar  v.  City  of  Pittsburg,  114 
Fed.  586;  Hammond  v.  City  of  San 
Leandro,  135  Cal.  450,  67  Pac.  692. 
Under  act  of  March  19th,  1889,  §  4, 
it  is  not  necessary  that  such  specifi- 
cations and  plans  be  official.  The 
court  say:  "Witness  Williams  tes- 
tified that  'no  one  ever  submitted 
any  written  estimate  *  *  *  but 
that  one  Scrivener  gave  verbal  esti- 


§  356 


SPECIAL   ASSESSMENTS. 


863 


timate  of  the   cost  of  the  improvement  with  or  without  maps, 
profiles  and  specifications  filed  in  the  proper  office.393     This  esti- 


mate   *     *    *    of   the    cost   of   an 
electric    light    plant    for    said    city 

*  *     *     at    the     request    of     said 
board.'     One    John    Driver    testified 
that   he   submitted    plans  and   esti- 
mates to  the  board  for  a  building 

*  *     *     and  a  plan  for  an  engine 
and   they    were   the   only   plans   he 
submitted;     *     *     *     that    he    had 
an  electrician  make  out  the  specifi- 
cations for  the  rest  of  the  plant  and 
they    were    adopted    by    the    board. 
Whether  this  was  Scrivener  or  some 
other    electrician    does    not    appear. 
This  was  all  the  evidence.     It  suffi- 
ciently appears  that  there  were  no 
written   plans  and   specifications  of 
a  complete  plan  filed  by  any  one  per- 
son.    But   it  appears   that  an   elec- 
trician made  out  plans  and  specifica- 
tions  for  the   plant  except  for   the 
building  and  engine  and  as  to  these 
Driver    made    plans    and    specifica- 
tions.     It   appears    that    plans    and 
specifications  were  before  the  board 
and    adopted   though    submitted    by 
different  persons.     There  is  no  evi- 
dence that  the  persons  making  these 
plans  did  not  possess   the  requisite 
qualifications  and  it  was  incumbent 
on    plaintiff   to    overcome   this   pre- 
sumption by  evidence." 

sss  Edgar  v.  City  of  Pittsburg,  114 
Fed.  586;  Thomason  v.  Ruggles,  69 
Cal.  465,  11  Pac.  20;  White  v.  City 
of  Alton,  149  111.  626,  37  N.  E.  96.  A 
member  of  a  city  commission  is  not 
disqualified  because  of  the  fact  that 
he  owns  property  which  will  be  af- 
fected by  the  proposed  improvement. 
Barber  v.  City  of  Chicago,  152  111. 
37;  Illinois  Cent.  R.  Co.  v.  People, 
170  111.  224.  It  is  not  necessary  un- 
der Illinois  act  of  April  15,  1875,  to 


appoint  commissioners  to  estimate 
the  cost  of  a  sidewalk  before  the 
same  can  be  ordered  constructed. 
But  in  Moore  v.  City  of  Mattoon,  163 
111.  622,  a  report  of  such  commis- 
sioners signed  by  two  only  of  the 
three  appointed  held  insufficient  to 
sustain  a  special  assessment. 

Hinkle  v.  City  of  Mattoon,  170  111. 
316.  A  majority  of  the  committee 
or  commissioners  appointed  to  esti- 
mate a  report  of  cost  of  the  pro- 
posed street  improvement  may  make 
a  report  which  shall  be  binding  un- 
der authority  of  Rev.  St  c.  131,  §  1, 
cl.  9,  which  provides  that  authority 
given  to  three  or  more  public  offi- 
cials or  other  persons  shall  be  con- 
strued as  authority  given  to  a  ma- 
jority of  such  officials  or  persons. 
That  such  a  report,  however,  be  con- 
sidered binding,  it  is  necessary  that 
all  of  the  trustees  or  commissioners 
should  be  present  and  acting  at  the 
time  of  the  adoption  of  the  report. 
This  should  be  shown  in  the  report. 
See,  however,  the  case  of  Markley 
v.  City  of  Chicago,  170  111.  358,  hold- 
ing to  the  contrary. 

Berry  v.  City  of  Chicago,  192  111. 
154;  Sands  v.  Hatfield,  7  Ind.  App. 
357,  34  N.  E.  654;  Goring  v.  McTag- 
gart,  92  Ind.  200;  Yarnold  v.  City  of 
Lawrence,  15  Kan.  126;  Gilmore  v. 
Hentig,  33  Kan.  156;  Kansas  Town 
Co.  v.  City  of  Argentine,  5  Kan. 
App.  50,  47  Pac.  542,  affirmed  in  59 
Kan.  779,  54  Pac.  113.  The  prelim- 
inary estimate  of  a  city  engineer 
should  be  upon  a  cash  basis.  The 
fact  that  such  estimate  was,  how- 
ever, made  upon  the  basis  of  bonds 
at  ninety  cents  on  the  dollar  will  not 
invalidate  subsequent  proceedings 


864 


PUBLIC   REVENUES. 


356 


mate  should  contain  in  detail  the  various  items  entering  into  the 
cost  of  the  improvement.394    The  inclusion  of  illegal  items  of  cost 


because  the  cash  basis  can  be  readily 
ascertained  from  the  estimate  as 
made. 

Kansas  City  v.  Cullinan,  65  Kan. 
68,  68  Pac.  1099;  City  of  Shreveport 
v.  Prescott,  51  La.  Ann.  1895,  46  L. 
R.  A.  193;  City  of  Independence  v. 
Briggs,  58  Mo.  App.  241;  State  v. 
City  of  St.  Louis,  161  Mo.  371,  61  S. 
W.  658;  Barber  Asphalt  Pav.  Co.  v. 
Hezel,  76  Mo.  App.  135;  City  of 
Marshall  v.  Rainey,  78  Mo.  App. 
416;  City  of  Rich  Hill  v.  Donnan, 
82  Mo.  App.  386;  Kohler  v.  Town  of 
Iruttenberg,  38  N.  J.  Law,  419;  Gil- 
more  v.  City  of  Utica,  61  Hun,  618, 

15  N.  Y.  Supp.  274;  Id.,  131  N.  Y.  26. 
The  existence  of  errors  or  mistakes 
in   an   estimate   of   costs   on   which 
the  assessment  was   based  will  not 
render     invalid      such     assessment 
where   no    fraud,    collusion    or    bad 
faith  appears.    People  v.  Assessors  of 
Utica,  50  App.  Div.  54,  63  N.  Y.  Supp. 
445;   Jones  v.  Town  of  Tonawanda, 

16  N.  Y.  438;  City  of  Dallas  v.  At- 
kins  (Tex.  Civ.  App.)   32  S.  W.  780, 
following  City  of  Dallas  v.  Ellison, 
10  Tex.  Civ.  App.  28,  30  S.  W.  1128. 

City  of  Corsicana  v.  Kerr,  89  Tex. 
461,  35  S.  W.  794;  Davies'  Ex'rs  v. 
City  of  Galveston,  16  Tex.  Civ.  App. 
13,  41  S.  W.  145;  Frosh  v.  City  of 
Galveston,  73  Tex.  401;  Pound  v. 
Chippewa  County  Sup'rs,  43  Wis.  63. 

See,  in  regard  to  the  sufficiency  of 
the  estimate,  Cuming  v.  City  of 
Grand  Repids,  46  Mich.  150;  Good- 
willie  v.  City  of  Detroit,  103  Mich. 
283;  Wewell  v.  City  of  Cincinnati, 
45  Ohio  St.  407,  15  N.  E.  196;  City 
of  Erie  v.  Brady,  150  Pa.  462. 

394  City  of  Chicago  v.  Cummings, 
144  111.  446,  33  N.  E.  34.  The  valid- 


ity of  such  estimate  will  not  be  pre- 
sumed. Ware  v.  City  of  Jerseyville, 
158  111.  234.  Where  the  report  con- 
tains no  estimate  of  the  cost  of 
levying  and  collecting  a  special  tax 
as  required  by  law,  the  assessment 
should  not  be  confirmed. 

Quick  v.  Village  of  River  Forest, 
130  111.  323.  The  declaration  of  com- 
missioners is  not  competent  to  im- 
peach their  report  or  estimate  of 
cost.  Gage  v.  City  of  Chicago,  162 
111.  313;  Title  Guarantee  &  Trust  Co. 
v.  City  of  Chicago,  162  111.  505; 
Moore  v.  City  of  Mattoon,  163  111. 
622.  Court  costs  are  legitimate 
items  to  be  included  in  the  estimate. 
Pfeiffer  v.  People,  170  111.  347.  It  is 
not  necessary  that  such  an  estimate 
determine  the  relative  proportion  of 
the  total  cost  of  the  improvement 
borne  respectively  by  the  municipal- 
ity and  the  property  benefited. 

Harts  v.  People,  171  111.  373;  Ad- 
cock  v.  City  of  Chicago,  172  111.  24. 
An  estimate  specifying  the  width 
and  number  of  lineal  feet  to  be  built, 
cost  per  lineal  foot  of  sidewalk  and 
the  aggregate  cost  of  the  price  spe- 
cified together  with  the  cost  of  lay- 
ing and  making  the  improvement,  is 
sufficiently  definite. 

Dobler  v.  Village  of  Warren,  174 
111.  92;  Cramer  v.  City  of  Charles- 
ton, 176  111.  507;  Biggins'  Estate  v. 
People,  193  111.  601;  Ronan  v.  Peo- 
ple, 193  111.  631;  Jenney  v.  City  of 
Des  Moines,  103  Iowa,  347.  If  the 
plans  and  specifications  are  suffi- 
ciently full  and  definite  this  is  suffi- 
cient; they  need  not  be  as  full  and 
complete  as  it  is  possible  to  make 
them. 

City  of  Argentine  v.  Simmons,  54 


§  356 


SPECIAL  ASSESSMENTS. 


865 


will  not  usually  affect  the  validity  of  the  estimate  as  a  basic  re- 
quirement, provided  such  items  can  be  deducted  from  the  total 
cost  before  its  apportionment  upon  property  subject  to  the  tax.395 
Where  the  statutes  do  not  require  such  an  estimate  or  report  in 
advance  of  the  construction  of  the  local  improvement  or  the  levy 
of  the  tax,  a  failure  to  make  it  will  not  invalidate  the  proceed- 
ings.396 The  rule  also  holds  that  where  the  work  has  been  per- 


Kan.  699;  Kansas  City  v.  Gray,  62 
Kan.  198,  61  Pac.  746;  Friedenwald 
v.  Shipley,  74  Md.  220,  21  Atl.  790, 
24  Atl.  156.  The  estimate  of  the  ex- 
aminer must  be  in  detail. 

Cuming  v.  City  of  Grand  Rapids, 
46  Mich.  150;  Goodwillie  v.  City  of 
Detroit,  103  Mich.  283,  61  N.  W.  526. 
An  estimate  of  the  gross  cost  will  be 
sufficient.  Duffy  v.  City  of  Saginaw, 
106  Mich.  335,  64  N.  W.  581;  Cass 
Farm  Co.  v.  City  of  Detroit,  124 
Mich.  433,  83  N.  W.  108;  Kubns  v. 
City  of  Omaha,  55  Neb.  183,  75  N.  W. 
562.  The  compensation  of  apprais- 
ers is  also  a  proper  item.  People  v. 
Common  Council  of  Buffalo,  2  Misc. 
7,  21  N.  Y.  Supp.  601;  People  v. 
Common  Council  of  Kingston,  39 
App.  Div.  80,  56  N.  Y.  Supp.  606; 
Wewell  v.  City  of  Cincinnati,  45  Ohio 
St.  407,  15  N.  E.  196;  City  of  Erie 
v.  Brady,  150  Pa.  462,  24  Atl.  641. 
Where  the  statute  provides  that  the 
estimate  should  "particularly  state 
the  items  and  cost  of  each,"  an  ap- 
proximate estimate  of  quantities  and 
cost  is  not  sufficient. 

395  Brethold  v.  Village  of  Wilmette, 
168  111.  162.  A  commissioner  after 
having  reported  an  estimate  cannot 
change  it  by  testifying  that  he  in- 
cluded an  illegal  item  of  cost.  Loes- 
nitz  v.  Seelinger,  127  Ind.  422,  fol- 
lowing "White  v.  Fleming,  114  Ind. 
560.  Loomis  v.  City  of  Little  Falls, 
66  App.  Div.  299,  72  N.  Y.  Supp.  774. 
Neither  will  a  special  assessment  be 


set  aside  for  the  reason  that  the 
estimate  of  cost  was  determined  on 
insufficient  evidence  when  it  does 
not  appear  that  the  officers  acted  dis- 
honestly or  that  the  assessment  is 
excessive.  In  re  Leake  &  Watts  Or- 
phan Home,  92  N.  Y.  116;  City  of 
Cincinnati  v.  Anchor  White  Lead 
Co.,  44  Ohio  St.  243. 

sseRonan  v.  People,  193  111.  631; 
McKusick  v.  City  of  Stillwater,  44 
Minn.  372".  Where  a  clause  in  a  city 
charter  provides  that  no  informality 
or  irregularity  in  or  preliminary 
to  making  a  special  assessment  shall 
affect  its  validity  when  the  assess- 
ment roll  has  been  adopted  by  the 
city  council,  a  failure  to  make  a 
preliminary  estimate  of  the  cost  of 
the  proposed  improvement  before  the 
assessment  is  made  must  be  treated 
as  an  irregularity.  The  court  say: 
"The  charter  provides  that  after  the 
city  engineer  has  made  his  plat,  sur- 
vey and  profile  of  the  proposed  im- 
provement, showing  the  character 
and  extent  thereof,  and  his  estimate 
of  the  cost  thereof,  'the  city  council 
may  cause  such  plat  and  survey  to 
be  modified,  amended  or  changed  as 
it  may  deem  proper  and  shall  esti- 
mate and  fix  upon  the  cost  of  mak- 
ing such  improvement  when  the  as- 
sessment made  for  defraying  the  ex- 
pense of  such  work  or  improvement 
is  ordered,  prior  to  the  doing  of  such 
work  or  making  such  improvement. 
When  such  plat  and  survey  shall  be 


Abb.  Corp. — 55. 


866 


PUBLIC   REVENUES. 


357 


formed  in  compliance  with  the  contract,  the  failure  to  make  an 
estimate  cannot  defeat  a  lien  for  the  cost  of  the  local  improve- 
ment.397 

§  357.     Same  subject  continued. 

In  still  other  municipalities  we  find  the  requirement  that  the 
city  council,  an  assessing  board  or  other  official  body  must  take 
specific  and  definite  action  either  in  regard  to  the  necessity  for 
the  improvement,  by  the  adoption  of  a  resolution  of  intention,  or 
an  order  directing  its  construction,398  or  official  action  of  some 


finally  adopted  by  the  city  council 
it  shall  be  filed  with  the  city  clerk 
and  it  shall  be  held  to  show  correct- 
ly the  character  and  extent  of  the 
improvement  actually  agreed  upon 
and  ordered  by  the  city  council.'  It 
is  objected  that  the  council  did  not 
make  any  formal  estimate,  as  above 
provided,  upon  the  filing  of  the  sur- 
vey and  estimate  of  the  engineer. 
But  the  latter  were  filed  and  acted 
on  by  the  council  and  the  commis- 
sioners duly  appointed  to  proceed 
thereunder,  which  was  equivalent 
to  an  adoption  of  the  report  as  a 
whole.  Besides  it  is  provided  in  sec- 
tion 16,  c.  10  (Sp.  Laws  1881,  c.  92, 
p.  590)  of  the  charter  that  'no  omis- 
sion, informality  or  irregularity  in 
proceedings  in  or  preliminary  to  the 
making  of  any  special  assessment 
shall  affect  the  validity  of  the  same 
where  the  assessment  roll  has  been 
adopted  by  the  city  council.  *  *  * 
And  no  variance  from  the  direc- 
tions herein  contained  as  to  the  form 
or  manner  of  any  of  the  proceed- 
ings shall  be  held  material,  unless 
it  be  clearly  shown  that  the  party 
objecting  was  materially  injured 
thereby  and  unless  such  objections 
were  taken  at  the  time  and  in  the 
manner  prescribed  in  this  chapter.' 
This  objection  was  not  so  taken  and 


must  be  disregarded."  Herbert  v. 
City  of  Bayonne,  63  N.  J.  Law,  532, 
42  Atl.  833. 

•  397  Tennessee  Pav.  Brick  Co.  v. 
Barker  (Ky.)  59  S.  W.  755. 

sas  Williams  v.  McDonald,  58  Cal. 
527;  Haughawout  v.  Hubbard,  131 
Cal.  675,  63  Pac.  1078;  Grant  v.  Bar- 
ber, 135  Cal.  188,  67  Pac.  127;  Union 
Pav.  &  Contracting  Co.  v.  McGovern, 
127  Cal.  638;  Edwards  v.  Berlin,  123 
Cal.  544;  West  Chicago  Park  Com'rs 
v.  Sweet,  167  111.  326.  After  eight 
years'  undisputed  jurisdiction  and 
control  over  a  street  by  park  com- 
missioners, the  regularity  of  pro- 
ceedings, where  such  jurisdiction 
was  conceded  to  them,  cannot  be 
questioned  in  proceedings  for  the 
levy  of  a  special  assessment  for  the 
improvement  of  a  street. 

Clarke  v.  City  of  Chicago,  185  111. 
354.  Where  a  preliminary  hearing 
on  the  question  of  cost  is  required 
by  statute,  before  a  valid  resolution 
can  be  made  recommending  a  pro- 
posed street  improvement  by  the 
board  of  local  improvements,  upon 
failure  to  give  such  preliminary 
hearing  all  subsequent  proceedings 
ars  invalid.  Bozarth  v.  McGillicud- 
dy,  19  Ind.  App.  26,  47  N.  E.  397,  48 
N.  E.  1042;  City  of  Nevada  v.  Eddy, 
123  Mo.  546;  King  v.  City  of  Port- 


§  357 


SPECIAL   ASSESSMENTS. 


867 


character389  designed  to  serve  as  a  basis  for  putting  in  motion  all 
the  proceedings  and  steps  necessary  to  the  legal  levy  and  collec- 
tion of  a  special  assessment.  The  action  of  such  officials  is,  in  this 
respect,  usually  considered  ministerial  in  its  character,  not  judi- 
cial, but  no  appeal400  will  lie  unless  this  right  is  expressly  given 


land,  38  Or.  402,  63  Pac.  2,  55  L.  R. 
A.  812;  Mason  v.  City  of  Sioux  Falls, 
2  S.  D.  640;  Buckley  v.  City  of  Ta- 
coma,  9  Wash.  253;  Bellingham  Bay 
Imp.  Co.  v.  City  of  New  Whatcom, 
17  Wash.  496;  Jones  v.  City  of  Se- 
attle, 19  Wash.  6C9;  Kline  v.  City 
of  Tacoma,  11  Wash.  193,  39  Pac. 
453;  Id.,  12  Wash.  657,  40  Pac.  418. 

See,  also,  the  following  cases  con- 
sidering especially  the  question  of  a 
declaration  of  necessity,  so  called, 
for  the  improvement.  Such  declara- 
tion is  usually  required  by  special 
charter  provisions,  and  is  not,  in 
their  absence,  a  jurisdictional  mat- 
ter, but  it  may  be  necessary  for 
the  acquirement  of  jurisdiction 
over  property  sought  to  be  as- 
sessed: Michigan  Cent.  R.  Co.  v. 
Huehn,  59  Fed.  335;  McLauren  v. 
City  of  Grand  Forks,  6  Dak.  397; 
Hoyt  v.  City  of  East  Saginaw,  19 
Mich.  39;  Stephan  v.  Daniels,  27 
Ohio  St.  527. 

Generally  on  the  question  of  ne- 
cessity see  the  following:  Barber 
Asphalt  Pav.  Co.  v.  Edgerlon,  125 
Ind.  455;  City  of  Baltimore  v.  Johns 
Hopkins  Hospital,  56  Md.  1;  Dorman 
v.  City  Council  of  Lewiston,  81  Me. 
411;  Com.  v.  Abbott,  160  Mass.  282; 
Davies  v.  City  of  Saginaw,  87  Mich. 
439;  Beecher  v.  City  of  Detroit,  92 
Mich.  208;  Naegely  v.  City  of  Sag- 
inaw, 101  Mich.  532;  Cook  v.  Slocum, 
27  Minn.  509;  Taylor  v.  City  of  St. 
Louis,  14  Mo.  20;  City  of  Raleigh  v. 
Peace,  110  N.  C.  32,  17  L.  R.  A.  330; 
Strowbridge  v.  City  of  Portland,  8 
Or.  67;  Clinton  v.  City  of  Portland, 


26  Or.  410;  Kerr  v.  City  of  Corsi- 
cana  (Tex.  Civ.  App.)  35  S.  W.  694; 
Connor  v.  City  of  Paris,  87  Tex.  32; 
Boyd  v.  City  of  Milwaukee,  92  Wis. 
456.  See  §  361,  post. 

399  City  of  Chicago  v.  Weber,  94 
111.  App.  561.  No  contract  relation 
exists  between  the  commissioners, 
who  make  a  special  assessment,  and 
the  municipality.  They  are  not  its 
agents  but  officers  of  the  court  ap- 
pointing them.  West  Chicago  Park 
Com'rs  v.  Farcer,  171  111.  146;  King- 
man,  Petitioner,  156  Mass.  361,  30  N. 
E.  820,  construing  statutes  of  1889, 
c.  439,  authorizing  the  construction 
of  sewerage  systems  for  certain  cit- 
ies and  towns.  Stifel  v.  Southern 
Cooperage  Co.,  38  Mo.  App.  340. 
Where  a  charter  provision  requires 
"that  all  special  bills  for  work  con- 
templated by  this  charter  shall  be 
made  out  by  the  president"  of  the 
board  of  public  improvements  and 
signed  by  him,  this  power  cannot  be 
delegated  and  a  tax  bill  made  out 
and  signed  by  the  president  pro  tern 
is  void.  Hendrickson  v.  Borough  of 
Point  Pleasant,  65  N.  J.  Law,  535,  47 
Atl.  465. 

«o  Gait  v.  City  of  Chicago,  174  111. 
605.  The  report  is  conclusive  of 
commissioners  fixing  the  relative 
proportion  of  the  cost  of  an  improve- 
ment to  be  borne  respectively  by  the 
municipality  and  owners  of  property 
liable. 

City  of  Terre  Haute  v.  Mack,  139 
Ind.  99,  38  N.  E.  468,  holding  the 
acts  of  the  engineer  ministerial  and 


868 


PUBLIC  REVENUES. 


§  358 


by  statute,401  or  unless  they  abuse  their  discretion  or  are  palpably 
wrong  in  some  important  particular  ;*°2  they  may  be  vested,  more- 
over, with  the  power  by  law  to  correct  such  errors  as  may  be 
shown  to  exist.*03 

§  358.    Jurisdiction  acquired  through  the  introduction  and  pass- 
age of  an  ordinance. 

in  the  greater  number  of  municipalities  or  other  districts  au- 
thorized to  levy  special  assessments,  it  will  be  found  that  the  en- 
tire machinery  of  the  law  relating  thereto  is  set  in  motion  through 
the  adoption  of  an  ordinance.404  Without  this,  the  authority  for 


not  judicial  and  therefore  not  ap- 
pealable under  Vigo  County  Com'rs 
v.  Davis,  136  Ind.  503,  36  N.  E.  141, 
22  L.  R.  A.  515. 

401  Vigo  County   Com'rs  v.   Davis, 
136  Ind.  503,  36  N.  E.  141,  22  L.  R. 
A.  515;  City  of  Terre  Haute  v.  Mack, 
139  Ind.  99,  38  N.  E.  468. 

402  Davis  v.  City  of  Newark,  54  N. 
J.  Law,  144,  23  Atl.  276;  In  re  Brook 
Ave.,  8  App.  Div.  294,  40  N.  Y.  Supp. 
949;  Sinclaire  v.  Town  of  West  Ho- 
boken,  58  N.  J.  Law,  129. 

403  Brooks  v.  City  of  Chicago,  168 
111.  60;  Aldis  v.  South  Park  Com'rs, 
171   111.  424;    In  re  Delaware  &  H. 
Canal  Co.,  8  N.  Y.  Supp.  352. 

404  Edgar  v.  City  of  Pittsburg,  114 
Fed.   586;    Kansas  City,  P.  &  G.  R. 
Co.  v.  Waterworks  Imp.  Dist.  No.  1, 
68  Ark.  376,  59   S.  W.  248;    Pacific 
Pav.  Co.  v.  Reynolds,  130  Cal.  XVIII, 
62  Pac.  212;  City  of  Napa  v.  Easter- 
by,  76  Cal.  222;  City  of  Savannah  v. 
Weed,  96  Ga.  670.    If  the  charter  so 
provides,    a    single    ordinance    may 
authorize     the     paving    of     several 
streets. 

City  of  Atlanta  v.  Smith,  99  Ga. 
462;  May  wood  Co.  v.  Village  of  May- 
wood,  140  111.  216,  29  N.  E.  704.  It 
is  not  necessary  that  the  municipal- 
ity own  the  title  to  land  in  which  a 


sewer  is  to  be  constructed  at  the 
time  the  ordinance  authorizing  such 
sewer  is  passed.  City  of  Carlyle  v. 
Clinton  County,  140  111.  512,  30  N.  E. 
782.  The  city  cannot  levy  a  special 
tax  to  pay  for  an  improvement  con- 
structed before  the  ordinance  au- 
thorizing it  was  passed.  See,  also, 
City  of  East  St.  Louis  v.  Albrecht, 
150  111.  506,  37  N.  E.  934. 

Weld  v.  People,  149  111.  257,  36  N. 
E.  1006;  Freeport  St.  R.  Co.  v.  City 
of  Freeport,  151  111.  451.  The  ille- 
gality of  one  part  of  an  ordinance 
will  not  affect  the  remainder  where 
it  is  not  to  be  applied  or  taken  as  a 
whole.  Adcock  v.  City  of  Chicago, 
160  111.  611.  It  is  not  necessary  that 
an  ordinance  be  certified  for  its  use 
in  connection  with  a  petition  for  an 
assessment. 

Payne  v.  Village  of  South  Spring- 
field, 161  111.  285.  A  single  ordinance 
may  provide  for  more  than  one  im- 
provement. Thaler  v.  West  Chicago 
Park  Com'rs,  174  111.  211.  An  assess- 
ment for  the  cost  of  an  improve- 
ment is  invalid  where  the  contract 
for  its  construction  was  let  before 
the  ordinance  authorizing  it  was 
passed.  Shannon  v.  Village  of  Hins- 
dale,  180  111.  202.  The  invalid  por- 
tions of  an  improvement  ordinance 


3£8 


SPECIAL  ASSESSMENTS. 


869 


the  levy  of  the  assessment  does  not  exist  and  if  a  failure  to  pass 
a  legal  ordinance  can  be  shown,  all  subsequent  proceedings  will 
be  considered  invalid  and  the  collection  of  the  assessment  can  be 
successfully  resisted  by  the  property  owner.405 


If  separable  from  those  which  are 
valid  will  not  affect  them. 

Noonan  v.  People,  183  111.  52.  An 
improvement  ordinance  may  be  re- 
pealed so  far  as  it  relates  to  street 
intersections  without  impairing  its 
validity  in  other  respects.  Thom- 
son v.  People,  184  111.  17;  State  v. 
Common  Council  of  Michigan  City, 
138  Ind.  455,  37  N.  E.  1041.  The  or- 
dinance may  become  a  part  of  the 
contract  for  the  execution  of  which 
it  is  authority.  Lewis  v.  Albertson, 
23  Ind.  App.  147,  53  N.  E.  1071.  The 
improvement  of  two  streets  may  be 
authorized  by  one  resolution.  Mc- 
Manus  v.  Hornaday,  99  Iowa,  507,  68 
N.  W.  812;  Cooper  v.  City  of  Cedar 
Rapids,  112  Iowa,  367,  83  N.  W.  1050. 
No  special  authority  is  necessary  for 
the  construction  of  a  temporary  open 
sewer  for  surface  drainage. 

Barren  v.  Krebs,  41  Kan.  338; 
Richardson  v.  Mehler,  23  Ky.  L.  R. 
917,  63  S.  W.  957;  Alberger  v.  City 
of  Baltimore,  64  Md.  1;  Barber  As- 
phalt Pav.  Co.  v.  French,  158  Mo. 
534,  58  S.  W.  934,  54  L.  R.  A.  492. 
Passing  upon  the  constitutionality  of 
an  ordinance  authorizing  the  paving 
of  a  street  and  the  levy  of  a  special 
assessment  according  to  the  front- 
foot  rule;  such  ordinance  held  valid. 
This  case  was  taken  to  the  supreme 
court  of  the  United  States  on  writ  of 
error  and  afterwards  affirmed.  See 
French  v.  Barber  Asphalt  Pav.  Co., 
181  U.  S.  364.  See,  also,  note  223, 
§  337. 

Maudlin  v.  City  of  Trenton,  67  Mo. 
App.  452;  Wheeler  v.  City  of  Poplar 
Bluff,  149  Mo.  36;  Orr  v.  City  of  Oma- 


ha, 2  Neb.  Unoff.  771,  90  N.  W.  301; 
Turner  v.  Brigantine  Borough,  54 
N.  J.  Law,  476,  24  Atl.  481;  Murphy 
v.  City  of  Albina,  20  Or.  379,  26  Pac. 
234;  City  of  Chester  v.  Eyre,  181  Pa. 
642.  The  effect  of  a  paving  ordi- 
nance cannot  be  abrogated  by  oral 
declarations  of  individual  members 
of  the  council  to  the  effect  that  the 
paving  directed  to  be  made  will  not 
be  immediately  required.  In  re 
Beachwood  Ave.,  194  Pa.  86;  Davie's 
Ex'rs  v.  City  of  Galveston,  16  Tex. 
Civ.  App.  13,  41  S.  W.  145;  City  of 
Spokane  v.  Browne,  8  Wash.  317. 

405  Bacon  v.  City  of  Savannah,  105 
Ga.  62,  31  S.  E.  127.  A  defective  or- 
dinance may  be  subsequently  amend- 
ed so  as  to  validate  the  special  as- 
sessment. St.  John  v.  City  of  East 
St.  Louis,  136  111.  207,  27  N.  E.  543; 
People  v.  Green,  158  111.  594.  An  ob- 
jection cannot  be  sustained  in  an 
application  for  judgment  under  a 
delinquent  special  tax  which  should 
have  been  raised  during  the  pend- 
ency of  other  proceedings  prior  to 
the  assessment.  People  v.  McWethy, 

165  111.  222.     The  repeal  of  an  ordi- 
nance  will   not   affect   the    liability 
for  unpaid  instalments  of  the  assess- 
ment levied  under  it. 

Bradford  v.  City  of  Pontiac,  165 
111.  612.  Where  a  city  engineer  is 
given  power  to  supervise  an  im- 
provement and  see  that  the  work 
done  and  materials  used  are  in  ac- 
cordance with  the  ordinance,  this 
will  not  invalidate  such  ordinance 
because  delegating  the  power  vested 
in  the  city  council.  Cass  v.  People, 

166  111.    126.     No   objection   can   be 


870 


PUBLIC  REVENUES. 


§  358a 


(a)  Legality  of  ordinances.     The  legality  of  the  ordinance  will 
depend  upon  the  validity  of  the  various  steps  required  by  law  for 


made  to  the  insufficiency  of  an  im- 
provement ordinance  on  application 
for  judgment  for  assessments  made 
thereunder. 

O'Neil  v.  People,  166  111.  561; 
Trimble  v.  City  of  Chicago,  168  111. 
567;  Holdom  v.  City  of  Chicago,  169 
111.  109.  An  ordinance  providing  for 
street  improvements  repeals  a  prior 
one  inconsistent  and  in  conflict  with 
it.  Andrews  v.  People,  173  111.  123. 
It  is  not  necessary  that  an  ordinance 
should  set  out  the  particular  statute 
authorizing  its  passage.  City  of 
Bloomington  v.  Reeves,  177  111.  161. 
Where  the  improvement  must  be 
considered  as  a  whole  when  the  pro- 
ceedings relating  to  a  prior  one  are 
invalid,  this  will  invalidate  the  im- 
provement in  toto. 

Village  of  Western  Springs  v.  Hill, 
177  111.  634;  Davidson  v.  City  of  Chi- 
cago, 178  111.  582.  A  general  objec- 
tion to  the  sufficiency  of  an  improve- 
ment ordinance  is  sufficient.  Con- 
necticut Mut.  Life  Ins.  Co.  v.  City 
of  Chicago,  185  111.  148.  After  the 
completion  of  an  improvement,  an 
ordinance  authorizing  it  is  valid  and 
an  assessment  upon  property  liable 
can  be  made. 

Hull  v.  West  Chicago  Park  Com'rs, 
185  111.  150;  Zelie  v.  City  of  Web- 
ster City,  94  Iowa,  393,  62  N.  W. 
796;  Altman  v.  City  of  Dubuque,  111 
Iowa,  105,  82  N.  W.  461.  Where  the 
law  requires  that  the  mayor  of  a 
cif.y  of  the  first  and  second  class 
shall  sign  or  veto  and  return  reso- 
lutions directing  street  improve- 
ments before  the  same  shall  take  ef- 
fect or  be  in  force,  such  a  require- 
ment is  mandatory  and  a  failure  to 
do  this  will  invalidate  the  special  tax 


levied  to  pay  the  cost.  Macldn  v. 
Wilson,  20  Ky.  L.  R.  218,  45  S.  W. 
663.  The  formalities  required  for 
the  construction  of  an  original  street 
improvement  will  not  apply  to  an  or- 
dinance for  its  reconstruction.  See, 
also,  upon  this  question  as  holding 
the  same  principle,  the  case  of  City 
of  Augusta  v.  McKibben,  22  Ky.  L. 
R.  1224,  60  S.  W.  291. 

Bitzer  v.  Dinwiddy,  20  Ky.  L.  R. 
298,  45  S.  W.  1049,  following  Fehler 
v.  Gosnell,  18  Ky.  L.  R.  238,  35  S. 
W.  1125.  An  ordinance  which  is 
void  in  part  is  not  necessarily  void 
in  toto.  Richardson  v.  Mehler,  23 
Ky.  L.  R.  917,  53  S.  W.  957;  Bitzer 
v.  O'Bryan,  21  Ky.  L.  R.  1307,  54  S. 
W.  951.  The  burden  of  proving  the 
illegality  of  proceedings  is  upon  the 
party  attacking  them.  See,  also,  as 
discussing  the  same  question,  Elder 
v.  Cassilly,  21  Ky.  L.  R.  1274,  54  S. 
W.  836;  and  McHenry  v.  Selvage,  18 
Ky.  L.  R.  473,  35  S.  W.  645. 

Lynde  v.  City  of  Maiden,  166  Mass. 
244;  Dennison  v.  City  of  Kansas,  95 
Mo.  416,  8  S.  W.  429;  City  of  Nevada 
v.  Eddy,  123  Mo.  546,  27  S.  W.  471; 
McQuiddy  v.  Brannock,  70  Mo.  App. 
535;  Heman  v.  Ring,  85  Mo.  App. 
231;  Steffen  v.  Fox,  124  Mo.  630. 
Morse  v.  City  of  Westport,  136  Mo. 
276.  The  excessive  cost  of  an  im- 
provement authorized  by  an  ordi- 
nance will  not  of  itself  alone  make 
such  ordinance  invalid.  Neill  v. 
Gates,  152  Mo.  585;  Grant  v.  Bar- 
tholomew, 58  Neb.  839,  modifying 
judgment  in  57  Neb.  673,  78  N.  W. 
314.  The  burden  of  proving  the 
validity  of  special  assessments  is 
upon  the  party  attacking  them.  See, 
also,  upon  this  question  and  holding 


§  358a 


SPECIAL  ASSESSMENTS. 


871 


its  passage.  The  manner  and  mode  of  its  introduction  into  the 
local  legislative  body,406  the  procedure  within  that  body  upon  its 
passage,407  the  question  of  a  quorum,408  the  necessary  number  of 


the  same,  the  case  of  Johnson  v.  Fer- 
rell,  8  Ky.  L.  R.  216,  1  S.  W.  412,  541, 
distinguishing  Ormsby  v.  City  of 
Louisville,  79  Ky.  197. 

North  Baptist  Church  v.  City  of 
Orange,  54  N.  J.  Law,  111,  22  Atl. 
1004,  14  L.  R.  A.  62.  The  fact  that 
a  citizen  promises  to  pay  part  of 
the  expense  of  opening  a  street  will 
not  invalidate  an  ordinance  induced 
by  such  promise.  Ogden  v.  City  of 
Hudson,  29  N.  J.  Law  (5  Dutch.) 
475.  It  is  not  necessary  that  ques- 
tions affecting  the  legality  of  an  or- 
dinance be  raised  before  the  levy  of 
an  assessment.  Wilson  v.  City  of 
Hudson,  32  N.  J.  Law,  365.  The  fact 
that  funds  were  injudiciously  ap- 
plied is  no  ground  against  an  im- 
provement ordinance.  Mansfield  v. 
City  of  Lockport,  24  Misc.  25,  52  N. 
Y.  Supp.  571.  An  assessment  ordi- 
nance is  not  invalid  though  three  of 
the  members  of  the  city  council  were 
influenced  in  its  favor  by  fraud  there 
being  irrespective  of  such  three 
votes,  a  sufficient  number  to  pass  it 
under  the  provisions  of  the  city 
charter.  Paulson  v.  City  of  Port- 
land, 16  Or.  450,  1  L.  R.  A.  673; 
Vesta  Mills  v.  City  Council  of 
Charleston,  60  S.  C.  1. 

406  Wadlow  v.  City  of  Chicago,  159 
111.  176.  The  ordinance  should  be 
passed  at  the  time  required  by  law 
considering  the  proceedings  for  the 
making  of  the  improvement,  pass- 
age of  the  ordinance  and  the  levy 
and  collection  of  the  assessment  as 
a  whole. 

People  v.  Colvin,  165  111.  67.  The 
respective  proceedings  should  fol- 
low in  their  chronological  order  as 


required  by  statute  and  objections 
made  to  any  one  of  them  should  be 
raised  at  the  proper  time  and  be- 
fore the  question  of  the  local  im- 
provement has  passed  this  stage. 
See,  also,  chapter  on  Ordinances, 
post. 

*OT  Gleason  v.  Barnett,  20  Ky.  L. 
R.  1865,  49  S.  W.  1060.  People  v. 
Board  of  Contract  &  Apportionment 
of  Albany,  39  App.  Div.  30,  56  N.  Y. 
Supp.  334.  The  court  say:  "The  ob- 
jections are  based  upon  the  claim 
that  the  proceedings  of  the  common 
council  in  passing  the  ordinance  or 
law  referred  to  were  so  irregular  as 
to  render  it  invalid.  The  argument 
is  that,  the  law  being  invalid,  the 
board  has  no  jurisdiction  to  take 
any  proceedings  to  cary  it  out. 
There  is  no  provision  in  the  charter 
that  I  can  discover  authorizing  any 
party  to  require  the  board  to  disre- 
gard such  a  law  on  the  ground  that 
it  has  been  irregularly  passed,  and 
it  may  be  that  such  board  has  no 
authority  to  inquire  into  such  a  mat- 
ter. Section  3  of  title  9  of  the  char- 
ter gives  the  board  charge  of  such 
matters,  'under  the  direction  of  the 
common  council,'  and  it  is  not  alto- 
gether plain  that  the  board  has  any 
power  to  review  the  proceedings  of 
such  council  or  reject  any  of  its  or- 
dinances. But  without  deciding  that 
question,  it  is  clear  that  such  re- 
view should  not  be  exercised  by  the 
board  and  an  ordinance  disregarded 
unless  it  is  made  to  appear  that  the 
irregularities  complained  of  have 
actually  occurred.  Nothing  appears 
in  the  record  before  us  to  show  that 
any  proofs  of  the  alleged  irregulari- 


872  PUBLIC  REVENUES.  §   35Sa 

votes,409   its  publication   or   recording   regarded   both   from   the 


ties  were  made  or  tendered  to  the 
board.  In  the  objections  filed,  cer- 
tain irregular  modes  are  stated  to 
have  been  followed  by  the  common 
council  in  passing  the  law  but  it  is 
squarely  denied  in  the  return  that 
the  correctness  of  that  statement 
was  conceded  and  it  is  not  claimed 
by  the  relators  that  any  proof  there- 
of was  ordered.  It  cannot  be  said, 
therefore,  that  the  board  has  com- 
mitted any  error  in  proceeding  as  if 
a  valid  ordinance  was  before  them." 

The  following  cases  consider  the 
element  of  time  in  connection  with 
the  passage  or  presentation  of  ordi- 
nance providing  for  local  improve- 
ments and  the  levying  of  local  as- 
sessments. City  of  Paxton  v.  Bo- 
gardus,  201  111.  628.  The  failure  to 
pass  the  necessary  ordinance  before 
the  execution  of  a  contract  for  local 
improvements  invalidates  it.  Ken- 
dig  v.  Knight,  60  Iowa,  29;  Fehler 
T.  Gosnell,  99  Ky.  380;  Smith  v.  To- 
bener,  32  Mo.  App.  601  (special  meet- 
ing of  council) ;  Dollar  Sav.  Bank  v. 
Ridge,  62  Mo.  App.  324;  Aurora  Wa- 
ter Co.  v.  City  of  Aurora,  129  Mo. 
540  (validity  of  ordinance  passed  at 
special  meeting  considered) ;  City 
of  Springfield  v.  Weaver,  137  Mo. 
650  (Bids  for  the  paving  of  a  street 
may  be  advertised  for  before  the 
formal  passage  of  an  ordinance  or- 
dering the  work  to  be  done) ;  Wright 
T.  Forrestal,  65  Wis.  341. 

The  manner  of  the  passage  of  such 
an  ordinance  considered  in  the  fol- 
lowing cases:  Hough  v.  City  of 
Bridgeport,  57  Conn.  290;  Murphy 
v.  City  of  Louisville,  72  Ky.  (9 
Bush)  189. 

State  v.  Armstrong,  54  Minn.  457. 
It  is  necessary  to  take  a  separate 
vote  upon  each  of  the  several  dif- 


ferent propositions  having  in  view 
the  construction  of  local  improve- 
ments. Stewart  v.  City  of  Clinton, 
79  Mo.  603;  Town  of  Trenton  v. 
Coyle,  107  Mo.  193;  Campbell  v.  City 
of  Cincinnati,  49  Ohio  St.  463.  An 
improvement  ordinance  must  be  read 
on  three  different  days  under  a  char- 
ter provision '  requiring  all  ordi- 
nances of  a  permanent  nature  to  be 
read  in  such  manner.  City  of  Cin- 
cinnati v.  Anderson,  52  Ohio  St.  600. 

Oilman  v.  City  of  Milwaukee,  61 
Wis.  588.  The  failure  to  refer  an  or- 
dinance to  a  committee  of  the  coun- 
cil as  required  by  the  charter  in- 
validates street  improvement  ordi- 
nances. See  the  following  cases 
relative  to  the  signing  of  such  an 
ordinance  by  a  presiding  or  other 
officer:  Creighton  v.  Manson,  27  Cal. 
613;  Thompson  v.  Hoge,  30  Cal.  179; 
Williams  v.  McDonald,  58  Cal.  527. 
Where  a  charter  provision  requires 
the  clerk  to  sign  the  resolution  for 
a  local  improvement,  his  printed  sig- 
nature is  sufficient. 

The  mayor's  signature  held  neces- 
sary in  the  following  cases:  Doty  v. 
Lyman,  166  Mass.  318;  Saxton  v. 
Beech,  50  Mo.  488;  Irvin  v.  Devors, 
65  Mo.  625;  Kinsella  v.  City  of  Au- 
burn, 54  Hun  (N.  Y.)  634. 

The  following  hold  signature  or 
approval  not  necessary:  Taylor  v. 
Palmer,  31  Cal.  241;  Beaudry  v.  Val- 
dez,  32  Cal.  269;  McDonald  v.  Dodge, 
97  Cal.  112 ;  Martindale  v.  Palmer,  52 
Ind.  411;  State  v.  Armstrong,  54 
Minn.  457;  Hall  v.  City  of  Racine,  81 
Wis.  72. 

408  Ferguson  v.  Crittenden  County, 
6  Ark.  479;    Price  v.  Grand  Rapids 
&  I.  R.  Co.,  13  Ind.  58;    City  of  Lo- 
gansport  v.  Legg,  20  Ind.  315. 

409  Bacon  v.  City  of  Savannah,  86 


358a 


SPECIAL   ASSESSMENTS. 


873 


standpoint  of  manner  and  time,410  will  all  be  considered  and  due 
weight  given  to  all  statutory  requirements  controlling  or  affecting 
the  passage  of  local  legislation. 


Ga.  301;  City  of  Logansport  v.  Legg, 
20  Ind.  315;  Pittsburgh,  C.,  C.  &  St. 
L.  R.  Co.  v.  Town  of  Crown  Point, 
150  Ind.  536,  50  N.  E.  741.  Where 
the  ordinance  directing  the  public 
improvement  recites  that  it  was 
passed  by  a  two-thirds  vote,  this 
statement  is  conclusive  of  the  fact 
stated  on  collateral  attack.  Mc- 
Eneney  v.  Town  of  Sullivan,  125  Ind. 
407;  City  of  Covington  v.  Sullivan, 
19  Ky.  L.  R.  1884,  44  S.  W.  630; 
City  of  Covington  v.  Casey,  66  Ky. 
(3  Bush)  698. 

Tennant  v.  Crocker,  85  Mich.  328; 
Clark  v.  City  of  Elizabeth,  61  N.  J. 
Law,  565,  40  Atl.  616,  737;  City  of 
Bradford  v.  Fox,  171  Pa.  343;  Con- 
nor v.  City  of  Paris,  87  Tex.  32,  27  S. 
W.  88;  Kerr  v.  City  of  Corsicana 
(Tex.  Civ.  App.)  35  S.  W.  694;  City 
of  Waco  v.  Prather  (Tex.  Civ.  App.) 
35  S.  W.  958;  Buckley  v.  City  of  Ta- 
coma,  9  Wash.  269;  Dieckmann  v. 
Sheboygan  County,  89  Wis.  571. 

In  re  City  of  Mt.  Vernon,  34 
Misc.  225,  68  N.  Y.  Supp.  823,  the 
court  say:  "The  charter  of  this 
city  authorizes  the  common  council 
by  an  ordinary  majority  vote  to  al- 
low a  street  to  be  laid  out  and  open- 
ed on  receipt  of  a  petition  therefor 
signed  by  one-third  of  the  landown- 
ers along  its  line  and  after  giving 
a  hearing  thereon  on  a  prescribed 
notice  by  publication;  but  only  pro- 
vided that  there  be  no  remonstrance 
against  it  on  such  hearing.  It  then 
adds:  'The  common  council  by  an 
unanimous  vote  of  all  its  members, 
may  allow  any  such  improvement  to 
be  made  *  *  *  without  such  peti- 
tion and  notice,  or,  in  case  of  a  peti- 


tion, notwithstanding  such  remon- 
strance;' and  next  follows  a  provi- 
sion that  if  the  proposed  improve- 
ment be  a  sewer  'the  common  coun- 
cil by  the  vote  of  a  majority  of  all 
its  members,  to  be  ascertained  by 
taxing  and  recording  the  ayes  and 
noes,  may  allow  the  improvement  to 
be  made  and  the  property  rights  or 
easements  to  be  taken  without  peti- 
tion of  any  owner  and  notwithstand- 
ing any  remonstrance.'  There  was 
no  petition  in  this  case,  and  the 
moving  papers  purport  to  show  that 
whereas  the  common  council  consist- 
ed of  ten  aldermen,  only  eight  were 
present  at  the  meeting  and  voted  to 
allow  the  improvement.  If  this  be 
true  the  contention  that  the  common 
council  never  allowed  this  improve- 
ment is  valid.  It  could  allow  it  only 
'by  a  unanimous  vote  of  all  its  mem- 
bers.' The  statute  is  plain  and  un- 
ambiguous on  this  head  and  there- 
fore artificial  rules  of  construction 
may  not  be  resorted  to.  They  can- 
not be  invoked  to  change  a  plain 
meaning." 

410  Crane  v.  City  of  Siloam 
Springs,  67  Ark.  30;  Hellman  v. 
Shoulters,  114  Cal.  136,  44  Pac.  915, 
45  Pac.  1057;  Ferine  v.  Lewis,  128 
Cal.  236,  60  Pac.  422,  judgment 
modified  on  rehearing  in  128  Cal. 
236,  60  Pac.  772;  City  of  Conners- 
ville  v.  Merrill,  14  Ind.  App.  303,  42 
N.  E.  1112;  City  of  New  Albany  v. 
Endres,  143  Ind.  192;  City  of  Du- 
buque  v.  Wooton,  28  Iowa,  571;  City 
of  Lexington  v.  Headley,  68  Ky.  (5 
Bush)  508;  Fox  v.  Middlesborough 
Town  Co.,  96  Ky.  262,  28  S.  W.  776; 
Nevin  v.  Roach,  86  Ky.  492;  Chase 


874 


PUBLIC  REVENUES. 


358b 


(b)  Form.  As  the  collection  of  a  local  assessment  may  result 
in  the  confiscation  of  property,  it  follows  that  to  protect  the  own- 
er, the  law  may  require  all  ordinances  designed  as  a  basis  for  the 
levy  of  local  assessments  to  be  of  a  special  form  setting  forth  in 
detail  the  character,411  cost,412  and  locality  or  place413  of  the  im- 


v.  Aldermen  of  Springfield,  119  Mass. 
556;  Inhabitants  of  Leominster  v. 
Conant,  139  Mass.  384;  City  of 
Springfield  v.  Weaver,  137  Mo.  650, 
37  S.  W.  509,  39  S.  W.  276;  Kansas 
City  v.  Duncan,  135  Mo.  571.  The 
acquirement  of  jurisdiction  through 
the  publication  of  an  ordinance  di- 
rected "to  whom  it  may  concern" 
without  naming  them  is  not  uncon- 
stitutional as  taking  property  with- 
out due  process  of  law  though  most 
of  the  interested  parties  are  resi- 
dent property  owners.  McGavock 
v.  City  of  Omaha,  40  Neb.  64;  Hand 
v.  City  Council  of  Elizabeth,  30  N. 
J.  Law,  365;  Cunningham  v.  Bor- 
ough of  Merchantville,  61  N.  J.  Law, 
466,  39  Atl.  639;  Cowen  v.  Village  of 
"West  Troy,  43  Barb.  (N.  Y.)  48. 
Haven  v.  City  of  New  York,  67  App. 
Div.  90,  73  N.  Y.  Supp.  678.  A  sub- 
stantial" compliance  with  the  statute, 
however,  is  all  that  is  necessary.  In 
re  Burmeister,  76  N.  Y.  174;  In  re 
City  of  Buffalo,  78  N.  Y.  362;  Oil 
City  v.  Lay,  164  Pa.  370. 

411  Williams  v.  Bisagno  (Cal.)  34 
Pac.  640;  City  of  Los  Angeles  v.  De- 
hail,  97  Cal.  13;  Pearson  v.  City  of 
Chicago,  162  111.  383,  distinguishing 
Washington  Ice  Co.  v.  City  of  Chi- 
cago, 147  111.  327;  Title  Guarantee 
&  Trust  Co.  v.  City  of  Chicago,  162 
111.  505;  Culver  v.  City  of  Chicago, 
171  111.  399.  An  improvement  ordi- 
nance need  not  show  on  its  face 
whether  it  will  prove  beneficial  to 
the  property  on  which  the  proposed 
assessment  is  to  be  levied.  Brewster 
v.  City  of  Peru,  180  111.  124.  A  de- 


scription is  sufficient  if  the  charac- 
ter of  the  improvement  can  be  as- 
certained either  from  the  ordinance 
itself  or  by  reference  to  some  other 
ordinance  or  map. 

The  statutes  of  Illinois,  c.  24,  art. 
9,  §  19,  provide  that  to  authorize  a 
local  improvement  to  be  paid  by  spe- 
cial assessment,  an  ordinance  must 
be  passed  specifying  the  nature,  lo- 
cality and  description  of  the  pro- 
posed improvement.  Under  this 
statute  as  originally  passed  and  as 
amended  in  1887,  the  following  cases 
hold  that  the  descriptions  contained 
in  the  ordinances  were  not  sufficient- 
ly definite  in  some  one  of  the  par- 
ticulars as  specified  to  sustain  an  as- 
sessment. St.  John  v.  City  of  East 
St.  Louis,  136  111.  207,  27  N.  E.  543; 
Lake  Shore  &  M.  S.  R.  Co.  v.  City  of 
Chicago,  144  111.  391,  33  N.  E.  602, 
following  Village  of  Hyde  Park  v. 
Carton,  132  111.  100.  Hull  v.  City  of 
Chicago,  156  111.  381,  40  N.  E.  937. 
A  sidewalk  ordinance  which  directs 
the  sidewalk  to  be  constructed  of 
plank  at  one  place  and  stone  in  an- 
other is  void  for  uncertainty.  City 
of  Connersville  v.  Merrill,  14  Ind. 
App.  303,  42  N.  E.  1112.  The  speci- 
fications, however,  need  not  be  set 
out  in  the  minutest  detail.  Rose  v. 
City  of  Chicago,  188  111.  347,  58  N. 
E.  933;  Fehringer  v.  City  of  Chi- 
cago, 187  111.  416,  58  N.  E.  303;  Wil- 
lis v.  City  of  Chicago,  189  111.  103.  59 
N.  E.  543;  City  of  Sterling  v.  Gait, 
117  111.  11. 

City  of  Alton  v.  Middleton's  Heirs, 
158  111.  442.  A  description  in  an  or- 


§  358b 


SPECIAL   ASSESSMENTS. 


875 


dinance  of  a  public  improvement 
cannot  be  made  good  by  a  reference 
to  plans  In  the  office  of  the  village 
engineer.  Otis  v.  City  cf  Chicago, 
lol  111.  199.  An  ordinance  provid- 
ing for  the  erection  of  a  specified 
number  of  lamp  posts  on  a  certain 
avenue  between  two  streets  named 
accompanied  by  a  plat  of  the  street 
does  not  comply  with  the  statute 
which  requires  the  ordinance  to  spe- 
cify the  nature,  character,  locality 
and  description  of  the  improvement. 
Illinois  Cent.  R.  Co.  v.  City  of  Ef- 
fingham,  172  111.  607.  If  a  street  is 
to  be  improved  by  tiling,  the  ordi- 
nance should  give  a  specific  descrip- 
tion of  the  tiles.  Jacobs  v.  City  of 
Chicago,  178  111.  560.  An  ordinance 
is  insufficient  which  does  not  de- 
scribe the  height  of  the  curb  direct- 
ed to  be  laid.  See,  also,  as  holding 
the  same,  the  case  of  Lingle  v.  City 
of  Chicago,  178  111.  628. 

Davidson  v.  City  of  Chicago,  178 
111.  582.  An  ordinance  which  pre- 
scribes that  the  curb  stones  "shall 
be  firmly  bedded  on  flat  stones"  Is 
void  because  of  an  insufficient  de- 
scription of  the  flat  stones.  Dickey 
v.  City  of  Chicago,  179  111.  184; 
Gage  v.  City  of  Chicago,  179  111. 
392;  Lundberg  v.  City  of  Chicago, 
183  111.  572;  Kuester  v.  City  of  Chi- 
cago, 187  111.  21;  Libbey  v.  City  of 
Chicago,  187  111.  189;  City  of  Chi- 
cago v.  Sherman,  192  111.  576;  Nich- 
ols v.  City  of  Chicago,  192  111.  290; 
Kelly  v.  City  of  Chicago,  193  111. 
324;  Beach  v.  City  of  Chicago,  193 
111.  369;  Moll  v.  City  of  Chicago,  194 
111.  28. 

The  following  cases  hold  the  de- 
scription sufficiently  definite  in  ei- 
ther one  or  all  of  the  above  particu- 
lars to  warrant  the  assessment  as 
levied:  Woods  v.  City  of  Chicago, 
135  111.  582,  26  N.  E.  608.  Paving 


ordinances  need  not  specify  the 
width  of  a  street  where  the  record- 
ed plats  show  this  as  well  as  the 
width  of  the  sidewalks.  See,  also, 
as  holding  the  same,  Chicago,  B.  & 
Q.  R.  Co.  v.  City  of  Quincy,  136  111. 
563,  27  N.  E.  192,  from  the  opinion 
in  which,  however,  Craig,  J.,  dis- 
sented. Kimble  v.  City  of  Peoria, 
140  111.  157,  29  N.  E.  723;  Steele  v. 
Village  of  River  Forest,  141  111.  302, 
30  N.  E.  1034;  City  of  Carlinville  v. 
McClure,  156  111.  492,  41  N.  E.  169 
A  profile  with  an  ordinance  where 
the  former  is  made  a  part  of  the 
latter  may  sufficiently  describe  the 
improvement. 

Harrison  v.  City  of  Chicago,  163 
111.  129,  44  N.  E.  395.  Where  the 
statutes  provide  that  the  ordinance 
must  specify  the  nature,  locality  and 
description  of  the  improvement,  it 
is  not  necessary  to  state  the  width 
of  a  proposed  pavement.  White  v. 
City  of  Chicago,  188  111.  392,  58  N.  E. 
917;  Hyman  v.  City  of  Chicago,  188 
111.  462,  59  N.  E.  10;  Johnson  v. 
People,  189  111.  83,  59  N.  E.  515; 
Peters  v.  City  of  Chicago,  192  111. 
437,  61  N.  E.  438. 

Gallon  v.  City  of  Jacksonville,  147 
111.  113.  It  is  sufficient  under  the 
111.  statutes  if  the  character  and  de- 
scription of  the  proposed  local  im- 
provement can  be  ascertained  from 
the  ordinance  directing  its  construc- 
tion or  by  reference  to  official  maps, 
plans,  profiles  or  specifications  on 
file. 

Newman  v.  City  of  Chicago,  153 
111.  469;  Cunningham  v.  City  of  Pe- 
oria, 157  111.  499.  The  fact  that  an 
ordinance,  complete  and  sufficient 
in  itself,  refers  to  documents  on  file 
in  the  department  of  public  works 
does  not  render  it  invalid.  Dickey 
v.  City  of  Chicago,  164  111.  37.  An 
ordinance  need  not  state  the  width 


876 


PUBLIC  REVENUES. 


§  358b 


of  a  street  unless  some  uncertainty 
is  shown  as  to  this  fact  in  order  to 
comply  with  the  Rev.  St.  c.  24,  §  19, 
art.  9,  requiring  a  special  assessment 
ordinance  to  specify  the  nature, 
character,  locality  and  description 
of  the  work. 

Bradford  v.  City  of  Pontiac,  165 
111.  612.  A  street  ordinance  is  void 
which  delegates  to  the  city  engineer 
the  power  to  substantially  determine 
the  character  of  the  improvement. 
Latham  v.  Village  of  Wilmette,  168 
111.  153.  A  specification  in  an  ordi- 
nance that  certain  portions  of  the 
work  shall  be  of  "no  less  than"  cer- 
tain specified  dimensions  does  not 
render  it  invalid  for  uncertainty. 
Trimble  v.  City  of  Chicago,  168  111. 
567.  An  ordinance  which  provides 
that  a  pavement  may  be  leveled  by 
a  roller  or  pavement  rammer  is  not 
void  for  uncertainty. 

Walker  v.  People,  170  111.  410; 
Hoover  v.  People,  171  111.  182.  Gen- 
eral ordinances  relating  to  the  same 
subject  can  be  referred  to  and  made 
a  part  of  a  local  improvement  ordi- 
nance. Chicago  &  N.  P.  R.  Co.  v. 
City  of  Chicago,  172  111.  66;  Gross  v. 
People,  172  111.  571;  Kunst  v.  Peo- 
ple, 173  111.  79;  Chicago  &  N.  P.  R. 
Co.  v.  City  of  Chicago,  174  111.  439; 
Lehmers  v.  City  of  Chicago,  178  111. 
530. 

Chicago  Terminal  Transfer  Co.  T. 
City  of  Chicago,  178  111.  429.  An  or- 
dinance which  fails  to  specify  ma- 
terial with  which  the  new  curbing 
shall  be  constructed  or  its  height  or 
thickness  is  not  invalid  where  such 
curbing  is  to  improve  or  replace 
curbing  already  in  place.  Claflin  v. 
City  of  Chicago,  178  111.  549.  See 
this  case  of  a  sufficient  description 
under  the  111.  Statutes  for  paving  an 
avenue.  Ewart  v.  Village  of  West- 
ern Springs,  180  111.  318.  An  ordi- 
nance is  not  indefinite  in  failing  to 


state  the  dimension  of  electric  light 
poles  where  the  top  and  length  is 
given,  the  bottom  dimensions  being 
approximately  ascertainable  there- 
from. 

Bickerdike  v.  City  of  Chicago,  185 
111.  280.  It  is  not  necessary  to  give 
the  dimensions  of  each  stone  to  be 
used  in  a  local  improvement.  Giv- 
ins  v.  City  of  Chicago,  186  111.  399; 
Hintze  v.  City  of  Elgin,  186  111.  251; 
Hardin  v.  City  of  Chicago,  186  111. 
424;  Markley  v.  City  of  Chicago,  190 
111.  276;  Houston  v.  City  of  Chicago, 
191  111.  559;  Tuttle  v.  Polk,  84  Iowa, 
12. 

Kentucky  Gen.  St.  §  3449,  provides 
that  an  improvement  ordinance  shall 
"fully  declare  and  prescribe  the  kind 
and  extent  of  improvement  to  be 
made."  Under  this  section  the  fol- 
lowing cases  hold  the  descriptions 
sufficiently  specific.  Councilmen  of 
Frankfort  v.  Murray,  99  Ky.  422, 
36  S.  W.  180;  Hackworth  v. 
Louisville  Artificial  Stone  Co., 
20  Ky.  L.  R.  1789,  50  S'.  W.  33. 
The  description  of  sidewalk  ma- 
terial as  "granitoid"  is  sufficient- 
ly specific.  Dumesnil  v.  Hexagon 
Tile  Walk  Co.,  23  Ky.  L.  R.  144,  58 
S.  W.  705;  Richardson  v.  Mehler,  111 
Ky.  408,  63  S.  W.  957;  Home  v. 
Mehler,  23  Ky.  L.  R.  1176,  64  S.  W. 
918.  An  ordinance  calling  for  "vit- 
rified brick"  is  sufficient. 

Scott  County  v.  Hinds,  50  Minn. 
204;  City  of  St.  Joseph  v.  Owen,  110 
Mo.  445,  19  S.  W.  713.  It  is  not  nec- 
essary, however,  to  specify  the  mi- 
nutest details.  Verdin  v.  City  of 
St.  Louis  (Mo.)  27  S.  W.  447.  A 
street  improvement  ordinance  is  void 
which  fails  to  comply  with  a  charter 
provision  that  such  ordinance  must 
specify  the  material  to  be  used. 
Barber  Asphalt  Pav.  Co.  v.  Ullman, 
137  Mo.  543,  38  S.  W.  458.  An  ordi- 


§  358b 


SPECIAL   ASSESSMENTS. 


877 


nance  is  sufficient  which  refers  to 
specifications  in  the  office  of  the  city 
engineer  giving  the  manner  in  which 
the  work  shall  be  done.  Haegele  v. 
Mallinckrodt,  46  Mo.  577.  An  or- 
dinance authorizing  the  macadamiz- 
ing of  a  street  without  furnishing 
directions  as  to  the  manner  of  doing 
the  work  is  insufficient.  Skinker  v. 
Heman,  148  Mo.  349,  49  S.  W.  1026, 
reversing  64  Mo.  App.  441.  An  ordi- 
nance which  provides  the  character 
of  materials  to  be  used  is  not  unrea- 
sonable and  oppressive  because  the 
cost  of  replacing  the  sidewalk  will 
many  times  exceed  the  cost  of  the 
repairs.  City  of  Rich  Hill  v.  Don- 
nan,  82  Mo.  App.  386;  Ruling  v.  Ban- 
dera  Flag  Stone  Co.,  87  Mo.  App. 
349;  Turner  v.  Brigantine  Borough, 
54  N.  J.  Law,  476;  Clarke  v.  Long 
Branch  Com'rs,  54  N.  J.  Law,  484; 
Caldwell  v.  Village  of  Carthage,  49 
Ohio  St.  334;  Buckley  v.  City  of  Ta- 
coma,  9  Wash.  253. 

The  following  cases  consider  with 
other  questions  the  sufficiency  of  de- 
scriptions in  connection  with  local 
assessment  proceedings  referring  to 
the  particular  improvement  suggest- 
ed. 

Sewers,  including  catch-basins, 
manholes  and  connections:  Rick- 
cords  v.  City  of  Hammond,  67  Fed. 
380.  Under  Ind.  St.,  a  failure  to 
specify  the  size  of  a  sewer  held  not 
to  invalidate  the  proceedings.  Vil- 
lage of  Hyde  Park  v.  Borden,  94  111. 
26;  City  of  St.  Joseph  v.  Owen,  110 
Mo.  445;  Village  of  Hyde  Park  v. 
Spencer,  118  111.  446;  Ogden  v.  Town 
of  Lake  View,  121  111.  422;  City  of 
Springfield  v.  Mathus,  124  111.  88; 
Pearce  v.  Village  of  Hyde  Park,  126 
111.  287;  City  of  Springfield  v.  Sale, 
127  111.  359;  Cochran  v.  Village  of 
Park  Ridge,  138  111.  295;  Steele  v. 
Village  of  River  Forest,  141  111. 


302  (location  of  drain) ;  Barber 
v.  City  of  Chicago,  152  111.  37;  Rich 
v.  City  of  Chicago,  152  111.  18;  City 
of  Alton  v.  Middleton's  Heirs,  158 
Hi.  442;  Payne  v.  Village  of  South 
Springfield,  161  111.  285;  Village  of 
Hinsdale  v.  Shannon,  182  111.  312; 
Peters  v.  City  of  Chicago,  192  111. 
437;  Duane  v.  City  of  Chicago,  198 
111.  471;  Walker  v.  City  of  Chicago, 
202  111.  531;  Bennett  v.  City  of  New 
Bedford,  110  Mass.  433;  Com.  v. 
Abbott,  160  Mass.  282;  Young  v.  City 
of  Kansas,  27  Mo.  App.  101;  City  of 
St.  Joseph  v.  Landis,  54  Mo.  App. 
315;  State  v.  City  of  St.  Louis,  56 
Mo.  277;  South  Highland  Land  & 
Imp.  Co.  v.  Kansas  City,  172  Mo. 
523. 

For  street  improvements,  including 
opening,  extending,  grading  and  wid- 
ening, see  the  following  cases: 
Washington  Ice  Co.  v.  City  of  Chi- 
cago, 147  111.  327;  City  of  Danville 
v.  McAdams,  153  111.  216;  Pearson 
v.  City  of  Chicago,  162  111.  383;  Raw- 
son  v.  City  of  Chicago,  185  111.  87; 
Hays  v.  City  of  Vincennes,  82  Ind. 
178;  Mann  v.  Jersey  City,  24  N.  J. 
Law  (4  Zab.)  662;  Parker  v.  City 
of  New  Brunswick,  30  N.  J.  Law, 
395;  Woodruff  v.  Town  of  Orange, 
32  N.  J.  Law,  49;  Boice  v.  Inhab- 
itants of  Plainfield,  38  N.  J.  Law,  95. 

Paving  streets,  including  material: 
Main  v.  City  of  Ft.  Smith,  49  Ark. 
480.  Material  need  not  be  described 
under  an  ordinance  requiring  the 
proceedings  "to  specuy,  briefly  and 
plainly  the  kind  of  material  order- 
ed." Emery  v.  San  Francisco  Gas 
Co.,  28  Cal.  345;  Deady  v.  Townsend, 
57  Cal.  298;  Durand  v.  Borough  of 
Ansonia,  57  Conn.  70;  Bacon  v.  City 
of  Savannah,  86  Ga.  301;  Jackson- 
ville R.  Co.  v.  City  of  Jacksonville, 
j.14  111.  562;  Woods  v.  City  of  Chi- 
cago, 135  111.  582;  Harrison  Bros.  v. 


PUBLIC  REVENUES. 


§  3585 


City  of  Chicago,  163  111.  129;  Shan- 
non v.  Village  of  Hinsdale,  180  111. 
202  (Stone);  Hull  v.  West  Chicago 
Park  Com'rs,  185  111.  150;  Topliff  v. 
City  of  Chicago,  196  111.  215;  City 
of  Chicago  v.  Singer,  202  111.  75. 
Brick:  Barber  Asphalt  Pav.  Co.  v. 
Garr,  115  Ky.  334,  73  S.  W.  1106; 
Redersheimer  v.  Flower,  52  La.  Ann. 
2089.  Asphalt:  Morley  v.  Weakley, 
86  Mo.  451;  Becker  v.  City  of  Wash- 
ington, 94  Mo.  375;  Verdin  v.  City  of 
St.  Louis,  131  Mo.  26;  Skinker  v. 
Heman,  148  Mo.  349;  Barber  Asphalt 
Pav.  Co.  v.  Hezel,  155  Mo.  391,  48  L. 
R.  A.  285.  ' 

Sidewalks:  City  of  Chariton  v. 
Holliday,  60  Iowa,  391;  Councilmen 
of  Frankfort  v.  Murray,  99  Ky.  422; 
City  of  Lowell  v.  Wheelock,  65  Mass. 
(11  Gush.)  391;  Browne  v.  City  of 
Boston,  166  Mass.  229.  Gallaher  v. 
Smith,  55  Mo.  App.  116.  A  descrip- 
tion of  material  for  a  sidewalk  by 
reference  to  a  specific  section  of  a 
general  ordinance  is  sufficient. 

Miscellaneous:  Washburn  v.  City 
of  Chicago,  202  111.  210.  A  descrip- 
tion of  a  fire  hydrant  and  supply 
pipes  as  "city  of  Chicago  standard" 
is  insufficient. 

412  Kimble  v.  City  of  Peoria,  140 
111.  157,  29  N.  E.  723,  following  Kueh- 
ner  v.  City  of  Freeport,  143  111.  92, 
32  N.  E.  372,  17  L.  R.  A.  774;   Lake 
Shore  &  M.  S.  R.  Co.  v.  City  of  Chi- 
cago, 144  111.  391,  33  N.  E.  602,  fol- 
lowing Village  of  Hyde  Park  v.  Car- 
ton, 132  111.  100;  Sterling  v.  Gait,  117 
111.  11.     An  ordinance  which  states 
substantially  as  the  statute  requires 
"the  nature,  character,  locality  and 
description"  of  the  improvement,  is 
invalid;   the  provisions  of  the  stat- 
ute  are  mandatory.     West   Chicago 
Park  Com'rs  v.  Farber,  171  111.  146; 
Ronan  v.  People,  193  111.  631. 

413  Rollo  v.   City   of  Chicago,   187 


111.  417,  58  N.  E.  355;  Steele  v.  Vil- 
lage of  River  Forest,  141  111.  302,  30 
N.  E.  1034.  Where  from  the  ordi- 
nance as  a  whole  the  location  can 
be  determined,  it  is  sufficient.  Levy 
v.  City  of  Chicago,  113  111.  650;  City 
of  Kankakee  v.  Potter,  119  111.  324; 
Barber  v.  City  of  Chicago,  152  111. 
37,  following  City  of  Springfield  v. 
Mathus,  124  111.  88.  An  ordinance 
which  provides  that  the  authorized 
number  of  manholes  shall  be  built 
upon  a  sewer  at  such  points  as  may 
be  designated  by  the  department  of 
public  works  sufficiently  describes 
their  location.  See,  also,  as  hold- 
ing the  same,  Rich  v.  City  of  Chi- 
cago, 152  111.  18. 

City  of  Danville  v.  McAdams,  153 
111.  216;  Newman  v.  City  of  Chi- 
cago, 153  111.  469;  Stanton  v.  City 
of  Chicago,  154  111.  23.  In  describ- 
ing the  locality  of  an  improvement 
in  an  ordinance  authorizing  it,  it 
is  not  necessary  to  state  that  it  is 
within  the  limits  of  the  municipality 
making  it,  the  presumption  being 
that  the  council  did  not  exceed  its 
powers.  See,  also,  as  holding  the 
same,  Bliss  v.  City  of  Chicago,  156 
111.  584,  41  N.  E.  160;  Wheeler  v. 
People,  153  111.  480;  Meadowcroft  v. 
People,  154  111.  416;  West  Chicago 
St.  R.  Co.  v.  People,  155  111.  299; 
Beach  v.  People,  157  111.  659;  An- 
drews v.  People,  158  111.  477;  Dela- 
mater  v.  City  of  Chicago,  158  111. 
575;  Illinois  Cent.  R.  Co.  v.  City  of 
Chicago,  169  111.  329. 

Sargent  v.  City  of  Evanston,  154 
111.  268;  Steenberg  v.  People,  164  111. 
478;  Sanger  v.  City  of  Chicago,  169 
111.  286.  The  limits  of  the  improve- 
ment must  be  definitely  stated.  Mc- 
Chesney  v.  People,  171  111.  267;  Par- 
ker v.  Village  of  La  Grange,  171  111. 
344;  Nicholes  v.  People,  171  111.  376; 
Kunst  v.  People,  173  111.  79.  An  or- 


SPECIAL  ASSESSMENTS. 


879 


provement  with  a  description  of  the  property  upon  which  the  as- 
sessment levied  to  pay  its  cost  may  become  a  lien;414  and  the  man- 
ner of  payment.415  Clearness  of  expression,  accuracy  of  descrip- 


dinance  is  sufficiently  definite  which 
refers  to  a  datum  as  a  standard  of 
measurements. 

Church  v.  People,  179  111.  205; 
Ewart  v.  Village  of  Western  Springs, 
180  111.  318.  The  location  of  an  elec- 
tric light  plant  "at  the  water- 
works pump  house"  is  sufficient;  this 
being  a  public  building  and  its  loca- 
tion well  known. 

McManus  v.  People,  183  111.  391; 
Giving  v.  City  of  Chicago,  186  111. 
399.  In  establishing  a  street  grade, 
reference  can  be  made  in  an  ordi- 
nance to  an  outside  source  of  infor- 
mation which  the  law  recognizes  and 
which  places  all  improvements;  in 
this  case  the  plane  of  low  water 
mark  in  Lake  Michigan  of  1874  as 
established  by  the  trustees  of  the 
111.  &  Mich.  Canal  and  adopted  by 
the  municipality  of  Chicago  as  a  ba- 
sis for  such  levels.  See,  also,  as  dis- 
cussing the  same  subject,  Hardin  v. 
City  of  Chicago,  186  111.  424. 

Gage  v.  City  of  Chicago,  191  111. 
210.  An  ordinance  which  directs  the 
construction  of  a  sewer  commencing 
at  a  sewer  which  does  not  exist  is 
void  for  uncertainty.  Craig  v.  Peo- 
ple, 193  111.  199.  An  ordinance  for 
a  street  improvement  based  upon  the 
established  grade  is  invalid  in  the 
absence  of  an  ordinance  establish- 
ing such  grade. 

Job  v.  People,  193  111.  609.  An  im- 
provement ordinance  is  invalid 
which  does  not  specify  the  grade  on 
which  the  improvement  is  to  be  con- 
structed or  a  reference  to  a  general 
ordinance  fixing  such  grade.  City  of 
Connersville  v.  Merrill,  14  Ind.  App. 
303,  42  N.  E.  1112.  See  City  of 


Shreveport  v.  Prescott,  51  La.  Ann. 
1895,  26  So.  664,  46  L.  R.  A.  193,  con- 
struing statute,  §  2  of  Act  No.  10  of 
1896  apportioning  the  cost  of  an  im- 
provement where  the  street  is  occu- 
pied by  a  railroad  bed  or  track. 
Browne  v.  City  of  Boston,  166  Mass. 
229 ;  People  v.  Delaware,  L.  &  W.  R. 
Co.,  11  App.  Div.  280,  42  N.  Y.  Supp. 
1011. 

414  Burckhardt  v.  City  of  Atlanta, 
103  Ga.  302,  30  S.  E.  32;   Hyman  v. 
City  of  Chicago,  188  111.  462,  59  N.  E. 
10;    Chicago,   R.    I.   &   P.    R.   Co.   v. 
City  of  Moline,  158  111.  64;   Cramer 
v.  City  of  Charleston,  176  111.  507; 
Cummings    v.    West    Chicago    Park 
Com'rs,    181    111.    136;    Middaugh   v. 
City  of  Chicago,  187  111.  230;  Graham 
v.  City  of  Chicago,  187  111.  411;  Peo- 
ple v.  Hills,  193  111.  281;    Becker  v. 
City  of  Henderson,  18  Ky.  L.  R.  881, 
38  S.  W.  857;    Elder  v.  Cassilly,  21 
Ky.  L.  R.  1274,  54  S.  W.  836.    An  or- 
dinance is  not  void  which  provides 
for  the  improvement  of  each  side  of 
the  street  by  separate  contracts,  cit- 
ing   Barlow  v.  Waters,  16  Ky.  L.  R. 
426,  28  S.  W.  785;  Wise  v.  Foote,  81 
Ky.  10;    and  Bush  v.  Lisle,  89  Ky. 
400. 

Trustees  of  Phillip's  Academy  v. 
Inhabitants  of  Andover,  175  Mass. 
118,  48  L.  R.  A.  550;  City  of  Balti- 
more v.  Stewart,  92  Md.  535,  48  Atl. 
165;  Moale  v.  City  of  Baltimore,  61 
Md.  224;  Farrington  v.  City  of  Mt. 
Vernon,  51  App.  Div.  250,  64  N.  Y. 
Supp.  863. 

415  Burhans  v.  Village  of  Norwood 
Park,   138   111.   147,   27   N.    E.   1088; 
Lawrence  v.  People,  188  111.  407,  58 
N.  E.  991;   Dolese  v.  McDougall,  78 


880 


PUBLIC  REVENUES. 


§  358c 


tion  and  particularity  in  detail,  are  all  essential  to  the  validity 
of  an  ordinance,416  and  strict  compliance  with  its  provisions  neces- 
sary. 

(c)  A  local  improvement  ordinance  must  be  reasonable.  An 
improvement  ordinance  or  one  levying  a  local  assessment  must 
in  common  with  other  legislative  enactments,  in  order  to  be  valid, 
comply  with  the  law,  not  only  in  the  particulars  suggested  in  the 


111.  App.  629;  City  of  Sterling  v. 
Gait,  117  111.  11;  Davis  v.  City  of 
Litchfield,  155  111.  384;  Delamater  v. 
City  of  Chicago,  158  111.  575;  Hughes 
v.  City  of  Momence,  163  111.  535. 

White  v.  Town  of  West  Chicago, 
164  111.  196.  Under  act  of  May  2d, 
1873,  the  cost  of  the  improvement 
of  a  boulevard  cannot  be  divided 
into  instalments.  Andrews  v.  Peo- 
ple, 164  111.  581;  Latham  v.  Village 
of  Wilmette,  168  111.  153;  Trimble  v. 
City  of  Chicago,  168  111.  567;  Walk- 
er v.  People,  170  111.  410;  Parker  v. 
Village  of  'La  Grange,  171  111.  344; 
Ryder  Estate  v.  City  of  Alton,  175 
111.  94;  Danforth  v.  Village  of  Hins- 
dale,  177  111.  579;  Village  of  Western 
Springs  v.  Hill,  177  111.  634.  The 
time  of  payment  cannot  be  extended 
by  ordinance  beyond  the  time  au- 
thorized by  law.  Gray  v.  Town  of 
Cicero,  177  111.  459;  Walker  v.  City 
of  Chicago,  202  111.  531;  Gleason  v. 
Barnett,  20  Ky.  L.  R.  1694,  50  S.  W. 
67;  Kansas  City  v.  Marsh  Oil  Co., 
140  Mo.  458,  41  S.  W.  943;  Moran  v. 
Thompson,  20  Wash.  525,  56  Pac.  29. 

4ie  Cunningham  v.  City  of  Peoria, 
157  111.  499.  "Objection  is  also  made 
that  the  ordinance  is  void  because 
it  refers  for  greater  certainty  in  the 
description  of  the  proposed  improve- 
ment, to  the  plans  and  specifications 
on  file  in  the  department  of  public 
works  of  the  city  of  Peoria.  It  is 
claimed  that  as  the  statute  provides 
that  reference  may  be  made  to  'maps, 


plats,  plans,  profiles  or  specifications 
on  file,'  *  *  *  reference  to  such 
documents  on  file  in  any  other  de- 
partment of  the  city  government  is 
nugatory.  If  that  is  admitted  the 
consequences  contended  for  would 
not  seem  to  follow  in  this  case.  The 
ordinance  itself,  by  its  own  terms, 
specifies  the  nature,  character,  lo- 
cality and  description  of  the  im- 
provement with  sufficient  certainty 
to  answer  the  requirements  of  the 
statute;  and  the  fact  that  the  'ref- 
erence to  documents  on  file  in  the 
department  of  public  works  is  nu- 
gatory in  nowise  invalidates  the 
specification  of  the  improvement, 
which  is  already  sufficiently  full  and 
precise." 

Title  Guarantee  &  Trust  Co.  v. 
City  of  Chicago,  162  111.  505.  Mc- 
Quillin,  Mun.  Ord.  §  540.  "The  cases 
differ  materially  respecting  the  con- 
struction of  laws  relative  to  the  de- 
scription of  the  proposed  improve- 
ment but  this  difference  is  due  main- 
ly to  the  fact  that  the  laws  are  dif- 
ferent. Where  this  is  to  be  paid 
for  by  special  assessment  or  taxa- 
tion, closer  adherence  to  charter  pro- 
visions is  usually  enforced.  The 
proceedings  should  clearly  indicate 
the  nature,  extent,  cost  and  method 
of  apportionment  that  the  property 
owners  may  know  what  they  will  be 
called  upon  to  pay  and  the  probable 
benefits  to  them.  Simple  justice  de- 
mands this." 


§  358c 


SPECIAL   ASSESSMENTS. 


881 


preceding  paragraph,  but  must  also  be  considered  legal  with  ref- 
erence to  its  subject-matter.  It  must  be  reasonable  and  not  vio- 
late the  other  principles  given  in  those  sections  treating  generally 
this  question.417 


*"  Village  of  Norwood  v.  Baker, 
172  U.  S.  269;  Field  v.  Barber  As- 
phalt Pav.  Co.,  117  Fed.  925;  City  of 
Bloomington  v.  Chicago  &  A.  R.  Co., 
134  111.  451.  The  fact  that  a  local 
improvement  ordinance  is  grossly 
unreasonable,  unjust  and  oppressive, 
can  be  shown  in  defense  of  an  ap- 
plication for  confirmation  of  the  as- 
sessment. 

Davis  v.  City  of  Litchfield,  145  111. 
313,  21  L.  R.  A.  563;  Palmer  v.  City 
of  Danville,  154  111.  156.  An  ordi- 
nance levying  a  special  tax  for  a  lo- 
cal improvement  is  void  when  it  can 
be  shown  that  it  is  unreasonable  and 
an  arbitrary  abuse  of  power. 

Hawes  v.  City  of  Chicago,  158  111. 
653,  30  L.  R.  A.  225.  "The  uncon- 
tradicted  evidence  further  shows 
that  the  street  along  which  it  is  pro- 
posed to  construct  this  cement  side- 
walk has  never  been  improved  by 
the  city.  It  is  neither  curbed  nor 
paved,  sewered  nor  watered,  sur- 
veyed nor  graded.  If  it  is  to  be 
considered  as  a  street  66  feet  wide, 
then  there  is  a  line  of  telegraph 
poles  planted  right  through  the  cen- 
ter of  it;  and  the  north  33  feet  of 
it  has  never  been  formally  dedicated 
by  the  owner  to  public  use,  nor  con- 
demned by  any  municipal  corpora- 
tion; and  if  the  public  have  any 
right  to  it  at  all  it  is  a  right  by 
prescription  or  by  implied  dedica- 
tion. Such  was  and  is  the  condition 
of  this  street  in  front  of  appellants' 
property.  And  yet,  as  appears  from 
the  record  of  the  case,  the  common 
council  of  the  city  of  Chicago,  only 
five  months  after  the  construction 


at  a  great  expense  of  a  new  plank 
sidewalk,  built  in  conformity  with 
the  order  of  the  city  council,  1,256 
feet  long  passed  a  second  ordinance 
ordering  this  new  plank  sidewalk 
torn  up,  and  a  cement  walk,  at  an 
assessed  expense  of  $1,915.50  or  $1,- 
638.75,  put  down  in  its  place.  It  is 
admitted  by  the  city — at  least  not 
denied — that  this  plank  or  wooden 
sidewalk,  at  the  time  the  ordinance 
for  the  cement  sidewalk  was  passed, 
and  at  the  time  this  case  was  heard 
in  the  court  below,  was  in  good  or- 
der and  condition,  and  will  answer 
equally  as  well,  for  the  purpose  of 
travel,  as  a  cement  walk.  Nor  can 
it  for  a  moment  be  contended  that  it 
is  not  unreasonable,  unjust  and  op- 
pressive to  compel  the  owner  of  a 
vacant  20  acre  lot  first  to  construct 
and  pay  for  a  wood  sidewalk,  and 
then  within  less  than  six  months, 
and  when  it  is  in  substantially  as 
good  condition  as  when  first  built, 
and  in  all  respects  safe,  convenient, 
and  sufficient  for  public  use  and 
travel,  take  it  up,  throw  it  away, 
and  put  down  another  in  its  place, 
at  an  expense  of  over  $1,600?  It 
seems  to  us  that  it  cannot  be,  espe- 
cially when  we  take  into  considera- 
tion the  fact  that  the  street  has  nev- 
er been  improved,  curbed,  graded, 
paved  or  sewered.  And  further,  it 
is  clear  from  the  evidence  in  the 
case  that  if  this  judgment  should  be 
affirmed,  and  appellant  compelled  to 
take  up  the  wood  sidewalk  and  put 
down  one  of  cement,  the  cement  side- 
walk will  be  ruined  by  putting  in 
the  house  drains  every  25  feet  along 


Abb.   Corp.— 56. 


882 


PUBLIC   REVENUES. 


358C 


the  line  of  the  street,  or  at  least 
seriously  injured;  and  whenever  the 
street  is  improved,  and  dwellings  are 
constructed  along  the  line  of  the 
walk,  the  walk  itself  is  quite  likely 
to  be  destroyed.  An  ordinance  must 
be  reasonable;  and  if  it  is  unrea- 
sonable, unjust,  and  oppressive,  the 
courts  will  hold  it  invalid  and  void 
(City  of  Chicago  v.  Rumpff,  45  111. 
90;  Tugman  v.  City  of  Chicago,  78 
111.  405).  The  question  of  the  rea- 
sonableness or  unreasonableness  of 
a  municipal  ordinance  is  one  for  the 
decision  of  the  court,  and  in  deter- 
mining that  question  the  court  will 
have  regard  to  all  the  existing  cir- 
cumstances or  contemporaneous  con- 
ditions, the  objects  sought  to  be  ob- 
tained, and  the  necessity  or  want  of 
necessity  for  its  adoption  (Toledo, 
W.  &  W.  R.  Co.  v.  City  of  Jackson- 
ville, 67  111.  37;  City  of  Lake  View 
v.  Tate,  130  111.  247;  1  Dillon,  Mun. 
Corp.  §  327).  And  even  where  the 
power  to  legislate  on  a  given  subject 
is  conferred  on  a  municipal  corpo- 
ration, yet,  if  the  details  of  such 
legislation  are  not  prescribed  by  the 
legislature,  there  the  ordinance 
passed  in  pursuance  of  such  power 
must  be  a  reasonable  exercise  there- 
of, or  it  will  be  pronounced  invalid. 
City  of  St.  Paul  v.  Colter,  12  Minn. 
41  (Gil.  16);  Dunham  v.  Trustees  of 
Rochester,  5  Cow.  (N.  Y.)  462;  Bren- 
inger  v.  Treasurer  of  Town  of  Bel- 
videre,  44  N.  J.  Law,  350."  Wash- 
burn  v.  City  of  Chicago,  198  111.  506. 
Corrigan  v.  Gage,  68  Mo.  541.  An 
ordinance  for  the  paving  of  a  side- 
walk in  an  uninhabited  portion  of 
the  city  and  disconnected  with  any 
other  portion  of  the  street  or  side- 
walk was  held  void  because  unrea- 
sonable, oppressive  and  therefore 
subject  to  judicial  inquiry.  Wistar 
v.  City  of  Philadelphia,  80  Pa.  505, 


where  in  the  opinion  Agnew,  C.  J., 
says:  "But  if  we  say  the  city  may 
change  its  pavements  at  pleasure 
and  as  often  as  it  please  at  the  ex- 
pense of  the  ground  owner,  we  take 
a  new  step  and  there  must  be  ex- 
plicit legislation  to  authorize  such 
taxation.  *  *  *  If,  while  the 
pavement  is  good  and  stands  in  no 
need  of  repair,  the  city  may  tear  it 
up,  re-lay  and  charge  the  owner 
again  with  one  excessively  costly,  it 
would  be  exaction;  not  taxation. 
*  *  *  We  are  not  at  liberty  to 
impute  such  a  design  to  the  legis- 
lature unless  it  has  plainly  express- 
ed its  meaning  to  do  this  unjust 
thing."  Wistar  v.  City  of  Philadel- 
phia, 111  Pa.  604. 

Allen  v.  Drew,  44  Vt.  174.  "We 
have  no  doubt  that  a  local  assess- 
ment may  so  transcend  the  limits  of 
equality  and  reason  that  its  exaction 
would  cease  to  be  a  tax  or  contri- 
bution to  a  common  burden  and  be- 
come extortion  and  "confiscation.  In 
that  case,  it  would  be  the  duty  of 
the  court  to  protect  the  citizen  from 
robbery  under  color  of  a  better 
name."  Cooley,  Taxation,  c.  20,  p. 
428.  "A  clear  case  of  abuse  of  leg- 
islative authority  in  imposing  the 
burden  of  a  public  improvement  on 
persons  or  property  not  specially 
benefited  would  undoubtedly  be 
treated  as  an  excess  of  power  and 
Void." 

McQuillin,  Mun.  Ord.  §  550.  "Con- 
sidering all  the  circumstances,  courts 
having  the  authority  to  determine 
whether  a  particular  power  has  been 
reasonably  exercised,  may  declare 
improvement  ordinances  void  for  un- 
reasonableness, notwithstanding  the 
broad  discretion  usually  conceded  to 
be  vested  in  the  municipal  authori- 
ties. This  judicial  power  is  most 
frequently  invoked  in  proceedings 


§  359 


SPECIAL   ASSESSMENTS. 


883 


*  359.     Resolutions. 

The  technical  name  applied  to  the  statutory  requirement  sug- 
gested in  the  preceding  section  may  be  that  of  "resolution"  in- 
stead of  "ordinance."  If  this  be  the  case,  the  same  principles  of 
law  will  apply  and  the  same  results  will  follow  a  failure  to  com- 
ply with  statutory  requirements.418 


for  improvements  by  special  assess- 
ment or  taxation  in  cases  where,  in 
the  opinion  of  the  court,  unjust  dis- 
crimination has  been  exercised;  or 
positive  legal  provisions  have  been 
violated,  as  where  the  method  of  lay- 
ing the  tax  as  prescribed  is  not  ob- 
served; or  where  improvements  are 
ordered  without  necessity  or  reason 
whatever,  as  in  a  sparsely  settled 
and  uninhabited  section  or  direct- 
ing the  tearing  up  of  a  good  side- 
walk or  pavement  and  replacing 
it  with  an  expensive  one,  according 
to  the  caprice  or  whim  of  municipal 
officers  or  to  favor  some  contractor; 
or  exercising  the  power  in  such  ar- 
bitrary and  unreasonable  manner  as 
to  constitute  extortion,  confiscation 
or  the  taking  of  private  property 
without  just  compensation  or  due 
process  of  law." 

4i8Hellman  v.  Shoulters,  114  Cal. 
136,  44  Pac.  915,  45  Pac.  1057.  An 
ordinance  considered  equivalent  to 
a  "resolution  of  intention"  within 
act  of  March  18,  1885,  as  amended 
by  statutes  of  1889,  p.  157.  City  St. 
Imp.  Co.  v.  Babcock,  123  Cal.  205,  55 
Pac.  762;  Whitney  v.  Village  of  Hud- 
son, 69  Mich.  189,  37  N.  W.  184.  The 
limits  of  a  taxing  district  must  be 
definitely  specified  in  a  resolution 
providing  for  the  pavement  of  a 
street. 

Auditor  General  v.  Maier,  95  Mich. 
127,  54  N.  W.  640;  Twiss  v.  City  of 
Port  Huron,  63  Mich.  528;  Boehme 
v.  City  of  Monroe,  106  Mich.  401,  64 


N.  W.  204;  Davies  v.  City  of  Sagi- 
naw,  87  Mich.  439;  City  of  Carthage 
v.  Badgley,  73  Mo.  App.  123;  Pack- 
ard v.  Bergen  Neck  R.  Co.,  48  N.  J. 
Eq.  281,  22  Atl.  227.  A  "resolution" 
is  insufficient  where  the  charter  of 
a  city  requires  the  passage  of  an 
ordinance  for  the  construction  of 
public  improvements. 

Gilmore  v.  City  of  Utica,  131  N.  Y. 
26;  City  of  Cincinnati  v.  Anderson, 
52  Ohio  St.  6.00.  Resolutions  relat- 
ing to  the  improvement  of  several 
streets  may  be  voted  on  altogether 
in  a  council  without  invalidating  the 
assessments  levied  thereunder  for 
the  cost  of  each  particular  improve- 
ment. Alford  v.  City  of  Dallas 
(Tex.  Civ.  App.)  35  S.  W.  816;  Tex- 
as Transp.  Co.  v.  Boyd,  67  Tex.  153. 
The  contract  for  street  improve- 
ments cannot  differ  either  in  charac- 
ter, work  or  cost  from  the  resolution 
authorizing  it. 

See  the  following  cases  as  passing 
upon  the  sufficiency  of  a  resolution 
authorizing  the  improvement:  Mich- 
igan Cent.  R.  Co.  v.  Huehn,  59  Fed. 
335;  Gill  v.  Dunham  (Cal.)  34  Pac. 
68;  King  v.  Lamb,  117  Cal.  401,  49 
Pac.  561;  Chase  v.  City  Treasurer  of 
•Los  Angeles,  122  Cal.  540,  55  Pac. 
414;  Wells  v.  Wood,  114  Cal.  255; 
Thomason  v.  Cuneo,  119  Gal.  25;  Ed- 
wards v.  Berlin,  123  Cal.  544;  Lake 
Shore  &  M.  S.  R.  Co.  v.  City  of  Dun- 
kirk, 65  Hun,  494,  20  N.  Y.  Supp. 
596;  Welker  v.  Potter,  18  Ohio  St. 
85;  City  of  Cincinnati  v.  Sherike.  47 


884 


PUBLIC  REVENUES. 


§   360 


§  360.    Petition  by  property  owners. 

The  basis  of  the  validity  of  a  local  assessment  is  the  supposed 
local  and  special  benefit  or  advantage  received  by  the  property 
owners  in  the  immediate  vicinity  of  the  local  improvement.  As 
it  is  constructed,  therefore,  for  their  special  benefit,  it  will  be 
found  in  many  states  that  action  by  them  is  necessary  for  the  con< 
struction  of  a  local  improvement  and  the  levy  of  special  assess- 
ments to  pay  the  cost.419  The  step  contemplated  by  the  stat- 


Ohio  St.  217;  King  v.  City  of  Port- 
land, 38  Or.  402,  63  Pac.  2,  55  L.  R. 
A.  812. 

See  the  following  cases  holding 
the  assessment  invalid  because  based 
upon  a  resolution  void  for  lack  of 
sufficient  description  of  the  proposed 
improvement.  Kutchin  v.  Engelbret, 
129  Cal.  635,  62  Pac.  214;  Bay  Rock 
Co.  v.  Bell,  133  Cal.  150,  65  Pac.  299; 
McDonnell  v.  Gillon,  134  Cal.  329,  66 
Pac.  314;  Schwiesau  v.  Mahon,  128 
Cal.  114;  Merrill  v.  Abbott,  62  Ind. 
549;  Wheeler  v.  City  of  Poplar  Bluff, 
149  Mo.  36;  City  of  Waco  v.  Cham- 
berlain (Tex.  Civ.  App.)  45  S.  W. 
191. 

419  In  addition  to  the  cases  cited 
below,  see,  also,  generally,  the  au- 
thorities given  under  this  section. 
Liebman  v.  City  &  County  of  San 
Francisco,  24  Fed.  705;  Dyer  v.  Mil- 
ler, 58  Cal.  5S5;  Mulligan  v.  Smith, 
59  Cal.  206;  Gately  v.  Leviston,  63 
Cal.  365. 

Thomason  v.  Carroll,  132  Cal.  148, 
64  Pac.  262.  Under  the  California 
Statutes  of  1891,  p.  196,  §  3,  where 
the  owners  of  the  majority  of  the 
frontage  in  a  proposed  street  im- 
provement protest  against  its  con- 
struction, it  suspends  proceedings 
thereon  for  six  months.  Merritt  v. 
City  of  Kewanee,  175  111.  537.  A 
written  and  signed  petition  is  neces- 
sary. City  of  Bloomington  v. 
Reeves,  177  111.  161;  Gray  v.  Town 


of  Cicero,  177  111.  459;  Whaples  v. 
City  of  Waukegan,  179  111.  310.  Such 
provision  applies  only  to  cities  of 
less  than  25,000  inhabitants.  Vil- 
lage of  Hammond  v.  Leavitt,  181 
111.  416;  Givins  v.  City  of  Chicago, 
186  111.  399.  No  petition  is  neces- 
sary in  a  city  the  size  of  Chicago. 
Wiles  v.  Hoss,  114  Ind.  371,  16  N.  E. 
800. 

De  Puy  v.  City  of  Wabash,  133 
Ind.  336,  32  N.  E.  1016.  It  is  not 
necessary  that  two-thirds  of  the  ad- 
joining owners  petition  for  a  street 
improvement  under  Ind.  Act  March 
8,  1889.  City  of  Lafayette  v. 
Fowler,  34  Ind.  140;  Town  of  Cov- 
ington  v.  Nelson,  35  Ind.  532;  Case 
v.  Johnson,  91  Ind.  477;  Thompson 
v.  City  of  Lexington,  104  Ky.  165, 
46  S.  W.  481;  Byrne  v.  Parish  of 
East  Carroll,  45  'La.  Ann.  392,  12 
So.  521;  Bouldin  r.  City  of  Balti- 
more, 15  Md.  18.  Such  petition 
must  be  in  writing.  City  of  Mar- 
shall v.  Rainey,  78  Mo.  App.  416. 
Action  by  a  city  council  upon  a  pe- 
tition in  regard  to  a  proposed  im- 
provement is  discretionary;  they  can 
legally  refrain  from  ordering  the 
improvement. 

State  v.  Birkhauser,  37  Neb.  521; 
Grant  v.  Bartholomew,  58  Neb.  839; 
Jones  v.  City  of  South  Omaha,  3 
Neb.  Unoff.  551,  554,  94  N.  W.  957; 
Piard  v.  Jersey  City,  30  N.  J.  Law, 
148;  App  v.  Town  of  Stockton,  61 


§  360 


SPECIAL  ASSESSMENTS. 


utes  in  such  cases  is  usually  the  signing  and  filing  of  a  petition 
signed  by  a  certain  percentage  or  number  of  the  property  owners 
asking  for  the  construction  of  the  improvement  and  virtually  con- 
senting to  the  institution  of  the  proceedings  for  the  levy  of 'the 
assessment  and  its  collection.420  Many  charters,  however,  do  not 


N.  J.  Law,  520,  39  Atl.  921;  In  re 
Banta,  60  N.  Y.  165;  In  re  Garvey, 
77  N.  Y.  523;  O'Reilley  v.  City  of 
Kingston,  114  N.  Y.  439;  Jones  v. 
Town  of  Tonawanda,  158  N.  Y.  438; 
Hays  v.  Jones,  27  Ohio  St.  218; 
Hays  v.  City  of  Cincinnati,  62  Ohio 
St.  116;  Smith  v.  Minto,  30  Or.  351, 
48  Pac.  166.  Where  the  city  char- 
ter gives  the  council  authority  to 
proceed  in  the  improvement  of  a 
street  unless  unsafe  only  on  peti- 
tion of  adjoining  owners,  the  ques- 
tion of  safety  is  a  jurisdictional 
one.  See,  also,  under  jurisdictional 
question  of  safety,  Shannon  v.  City 
of  Portland,  38  Or.  382,  62  Pac.  50. 

Reuting  v.  City  of  Titusville,  175 
Pa.  512.  A  petition  of  abutting 
owners  is  necessary  only  in  case  of 
the  original  improvement  of  the 
street,  not  its  repair.  City  of  Waco 
v.  Chamberlain  (Tex.  Civ.  App.)  45 
S.  W.  191;  Jones  v.  City  of  Seattle, 
19  Wash.  669. 

420  Rector  v.  Board  of  Improve- 
ment, 50  Ark.  116,  6  S.  W.  519.  A 
stockholder  in  a  corporation  owning 
property  in  the  local  improvement 
district  is  not  an  owner  of  such 
property  within  the  meaning  of 
Mansf.  Dig.  Ark.  §  828  which  pro- 
vides that  the  petition  must  be  pre- 
sented to*  the  council,  signed  by  a 
majority  of  the  real  estate  owners  in 
Buch  district.  Ahern  v.  Board  of  Im- 
provement, 69  Ark.  68,  61  S.  W.  575. 
The  purchaser  in  possession  al- 
though his  vendor's  deed  has  not 
been  delivered  is  such  a  property 
owner,  and  also  the  mortgagor  of 


property  covered  by  a  mortgage  in 
process  of  foreclosure.  Property 
owned  by  tenants  in  common  signed 
for  by  only  one  should  be  counted 
for  his  interest  only.  The  widow 
of  the  deceased  owner  is  not  a 
property  owner,  she  being  only  a 
life  tenant  within  the  meaning  of 
the  statute  and  an  executor  of  an 
estate  had  no  power  to  bind  the 
heirs  by  signing  such  petition.  See, 
also,  Kahn  v.  San  Francisco  City  & 
County  Sup'rs,  79  Cal.  388,  as  hold- 
ing that  the  signatures  of  execu- 
tors, administrators  and  agents 
could  not  be  counted  in  absence  of 
evidence  of  authority  to  sign  the 
petition,  and  also  that  the  signature 
of  a  corporation  must  be  made  in 
the  manner  prescribed  by  its  by- 
laws. 

Earl  v.  Board  of  Improvement,  70 
Ark.  211,  67  S.  W.  312.  Only  one- 
half  of  the  value  of  partnership 
property  should  be  counted  where 
but  one  of  the  two  partners  sign  the 
petition.  City  of  Atlanta  v.  Smith, 
99  Ga.  462.  A  municipal  corpora- 
tion owning  property  on  the  street 
on  which  the  proposed  improvement 
is  constructed  cannot  sign  such  a 
petition  in  order  to  make  the  num- 
ber required.  Kirchman  v.  West  & 
South  Towns  St.  R.  Co.,  58  111.  App. 
515.  A  city  council  in  acting  upon 
the  sufficiency  of  a  petition  exercises 
duties  of  a  quasi  judicial  character 
and  its  judgment  in  that  respect  in 
the  absence  of  fraud  will  not  be 
interfered  with  by  the  courts.  Mer- 
ritt  v.  City  of  Kewanee,  175  111.  537. 


886 


PUBLIC  REVENUES. 


§   360 


require  such  a  petition  or  the  consent  of  the  property  owners 
affected  and  these  steps  are  not  then  jurisdictional.  A  brief  ref- 
erence to  those  cases  holding  a  petition  or  consent  of  the  property 


The  signature  by  the  husband  of  a 
woman  owning  property  abutting  a 
street  improvement  is  insufficient; 
neither  can  a  tenant  in  common 
sign  in  behalf  of  his  co-tenant. 
Wahlgren  v.  Kansas  City,  42  Kan. 
243.  Such  a  petition  is  valid  al- 
though it  does  not  include  a  request 
for  paving  street  intersections. 
Kansas  City  v.  Trotter,  9  Kan.  App. 
222,  59  Pac.  679;  Ready  v.  City  of 
New  Orleans,  27  La.  Ann.  169.  The 
required  percentage  of  property 
owners  adjoining  that  portion  of  the 
street  to  the  improvement  is  all  that 
is  necessary.  But  see  Barber 
Asphalt  Pav.  Co.  v.  Gogreve,  41  La. 
Ann.  251. 

Swann  v.  Town  of  Cumberland,  8 
Gill  (Md.)  150;  Holland  v.  City  of 
Baltimore,  11  Md.  186.  The  lessee 
of  property  for  a  term  of  ninety- 
nine  years  is  not  an  owner  within 
an  ordinance  requiring  as  a  basis 
for  the  improvement  an  application 
of  the  proprietors  of  a  majority  of 
the  frontage  on  such  local  improve- 
ment. But  in  the  state  of  Ohio  in 
the  case  of  Village  of  St.  Bernard 
v.  Kemper,  60  Ohio  St.  244,  45  L. 
R.  A.  662,  it  is  held  that  a  lessee  in 
possession  under  a  ninety-nine  year 
lease  renewable  for  ever,  is  such  an 
owner  of  property  as  to  entitle  him 
to  subscribe  to  a  petition  for  street 
improvements. 

De  Groot  v.  Jersey  City,  55  N.  J. 
Law,  120,  25  Atl.  272;  Allen  v.  City 
of  Portland,  35  Or.  420.  The  owner 
of  a  life  estate  is  such  a  property 
owner  and  therefore  competent  to 
sign  the  petition.  This  case  also 
holds  that  a  corporation  need  not 


attach  its  corporate  seal  to  make  its 
signature  effective,  and,  further,  that 
where  an  owner's  name  is  signed  by 
an  agent  the  authority  of  such  agent 
will  be  presumed  and  need  not  af- 
firmatively appear  upon  the  petition. 
Also  if  there  is  a  substantial  use  of 
the  correct  name  of  the  corporation, 
this  will  be  sufficient. 

See,  also,  the  following  cases  con- 
sidering the  particular  improvement 
suggested  in  addition  to  those  stated 
above. 

General  street  improvement,  in- 
cluding opening,  paving,  vacating, 
macadamizing  or  re-paving:  Shrum 
v.  Town  of  Salem  (Ind.  App.)  39  N. 
E.  1050;  Steinmuller  v.  Kansas  City, 
3  Kan.  App.  45,  44  Pac.  600;  Gargan 
v.  Louisville,  N.  A.  &  C.  R.  Co.,  89 
Ky.  212,  6  L.  R.  A.  340;  McGuinn  v. 
Peri,  16  La.  Ann.  326;  City  of  Balti- 
more v.  Eschbach,  18  Md.  276 ;  Brad- 
ley v.  Village  of  West  Duluth,  45 
Minn.  4;  People  v.  Judge  of  Recor- 
der's Ct,  40  Mich.  64;  State  v.  Birk- 
hauser,  37  Neb.  521;  Carron  v.  Mar- 
tin, 26  N.  J.  Law  (2  Dutch.)  594, 
reversing  26  N.  J.  Law  (2  Dutch.) 
228;  Woodruff  v.  City  of  Elizabeth, 
39  N.  J.  Law,  55;  In  re  Smith,  99  N. 
Y.  424;  Jex  v.  City  of  New  York,  103 
N.  Y.  536;  Miller  v.  City  of  Amster- 
dam, 149  N.  Y.  288;  City  of  Pitts- 
burg  v.  Walter,  69  Pa.  365;  Dean  v. 
City  of  Madison,  9  Wis.  402;  Petti- 
bone  v.  Hamilton,  40  Wis.  402;  War- 
ren v.  City  of  Wausau,  66  Wis.  206; 
James  v.  City  of  Darlington,  71  Wis. 
173. 

Sewers:  Keese  v.  City  of  Denver, 
10  Colo.  112;  Van  Brunt  v.  Town  of 
Flat  bush,  128  N.  Y.  50;  Auditor 


360a 


SPECIAL  ASSESSMENTS. 


887 


owners  unnecessary  will  be  found  in  the  notes.421  Some  statutes 
or  charters,  while  requiring  the  consent  of  the  property  owners 
for  an  original  improvement,  do  not  impose  such  a  condition  upon 
thft  municipal  authorities  before  ordinary  repairs  can  be  made 
or  a  street  regraded,  repaved  or  a  pavement  in  place  rtelaid.422 

(a)  Petition  not  necessary  where  cost  is  paid  from  general 
funds.  Where  a  local  improvement  is  paid  from  the  general 
funds  or  revenues  of  a  municipality,  the  reason  for  the  consent 
of  the  property  owners  not  existing,  the  cases  hold  that  a  peti- 
tion or  the  consent  of  the  property  owners  who  may  be  affected 
by  the  taxes  is  not  necessary  in  order  to  authorize  the  ordering 
of  a  contract  or  a  local  improvement  by  the  municipal  authori- 
ties.423 The  law  providing  for  such  petition  or  consent  may  re- 
quire either  a  certain  percentage  of  frontage  or  value  located 
upon  the  contemplated  improvement,424  or  a  certain  percentage 


General  v.  Chase,  132  Mich.  630,  94 
N.  W.  178.  The  consent  of  the  prop- 
erty owners  is  not  necessary  to 
make  a  slight  change  in  a  street 
grade. 

421  City  of  Napa  v.  Easterby,  76 
Cal.  222;  Spaulding  v.  Wesson,  84 
Cal.  141;  Park  Ecclesiastical  Soc.  v. 
City  of  Hartford,  47  Conn.  89;  De- 
Puy  v.  City  of  Wabash,  133  Ind. 
336;  Wilkin  v.  Houston,  48  Kan.  584 
(sidewalk);  City  of  St.  Louis  v. 
Oeters,  36  Mo.  456;  City  of  St.  Louis 
v.  Clemens,  36  Mo.  467;  Jelliff  v. 
City  of  Newark,  48  N.  J.  Law,  101; 
Id.,  49  N.  J.  'Law,  239;  Provident 
Ins.  for  Savings  v.  Jersey  City,  52 
N.  J.  Law,  490;  Reed  v.  City  of  Cam- 
den,  53  N.  J.  Law,  322;  Brewster  v. 
City  of  Syracuse,  19  N.  Y.  116;  In  re 
Walter,  83  N.  Y.  538;  People  v.  Vil- 
lage of  Port  Jervis,  100  N.  Y.  283; 
O'Reilley  v.  City  of  Kingston,  114  N. 
Y.  439;  Excelsior  Brick  Co.  v.  Vil- 
lage of  Haverstraw,  142  N.  Y.  146; 
Beaumont  v.  City  of  Wilkesbarre, 
142  Pa.  198;  Wood  v.  McGrath,  150 
Pa.  451,  16  L.  R.  A.  715. 

<22Watkins    v.    Griffith,    59    Ark. 


344;  Renting  v.  City  of  Titusville, 
175  Pa.  512. 

*23  Goodwillie  v.  City  of  Detroit, 
103  Mich.  283. 

*24Watkins  v.  Griffith,  59  Ark. 
344;  Ahern  v.  Board  of  Improve- 
ment, 69  Ark.  68,  61  S.  W.  575. 
Railroad  right  of  way  which  will  not 
be  benefited  by  the  construction  of 
a  proposed  improvement  is  properly 
excluded  in  determining  whether  a 
majority  in  value  of  the  owners  of 
assessable  real  property  in  the  dis- 
trict have  signed  the  petition. 
Church  property,  since  it  is  subject 
to  local  improvement  assessments, 
should  be  included. 

Thomason  v.  Carroll,  132  Cal.  148, 
64  Pac.  262;  Kahn  v.  San  Francisco 
City  &  County  Sup'rs,  79  Cal.  388. 
The  question  of  ownership  is  based 
by  statute  upon  the  names  appear- 
ing in  the  last  preceding  assessment 
roll.  Kyle  v.  Malin,  8  Ind.  34;  Far- 
raher  v.  City  of  Keokuk,  111  Iowa, 
310,  82  N.  W.  773;  Steinmuller  v. 
Kansas  City,  3  Kan.  App.  45,  44  Pac. 
600;  Dennison  v.  Kansas  City,  95 
Mo.  416;  Von  Steen  v.  City  of  Be- 


888 


PUBLIC  REVENUES. 


§  360a 


in  nnmber  of  the  property  owners  affected.423  The  filing  of 
a  petition  in  the  manner  and  at  the  time  provided  is  jurisdie- 
tional  and  necessary  to  the  legality  of  the  assessment,  and,  un- 
less estopped  either  by  laches426  or  acquiescence,427  property 
owners  whose  land  is  sold  for  nonpayment  of  an  assessment  may 
show  in  an  action  brought  to  recover  their  property  that  the 
petition  or  proceedings  were  irregular  in  some  respect.428  The 


atrice,  36  Neb.  209,  54  N.  W.  677; 
Northern  R.  Co.  v.  City  of  Engle- 
wood,  62  N.  J.  Law,  188,  40  Atl.  653; 
Wirth  v.  Jersey  City,  56  N.  J.  Law, 
216;  Miller  v.  City  of  Amsterdam, 
149  N.  Y.  288;  Speer  v.  City  of 
Pittsburg,  166  Pa.  86.  Only  a  ma- 
jority in  interest  of  owners  of  prop- 
erty abutting  that  part  of  the  street 
which  is  to  be  improved  is  necessary. 
Wright  v.  City  of  Tacoma,  3  Wash. 
T.  410.  The  charter  of  Tacoma  lim- 
its the  necessary  signers  to  "resident 
owners." 

420  Town  of  Covington  v.  Nelson, 
35  Ind.  532;  Gately  v.  Leviston,  63 
Cal.  365;  Warren  v.  Russell,  129  Cal. 
381.  See  Pittsburgh,  C.,  C.  &  St.  L. 
R.  Co.  v.  Town  of  Crown  Point,  150 
Ind.  536,  50  N.  E.  741,  as  holding 
that  under  statutes  of  Ind.  (§  6762, 
Burns'  Rev.  St.  1894),  where  a  town 
board  has  the  right  to  order  a  street 
improvement  by  a  two- thirds  vote 
of  the  board,  a  petition  of  the  prop- 
erty owners  for  such  improvement 
is  not  necessarily  jurisdictional. 
McEneney  v.  Town  of  Sullivan,  125 
Ind.  407;  DePuy  v.  City  of  Wabash, 
133  Ind.  336;  Bohle's  Adm'r  v.  Stan- 
nard,  7  Mo.  App.  51;  Smith  v.  Syra- 
cuse Imp.  Co.,  161  N.  Y.  484. 

*2«  Ahern  v.  Board  of  Improve- 
ment, 69  Ark.  68,  61  S.  W.  575; 
Pipher  r.  People,  183  111.  436;  Kan- 
sas City  v.  Trotter,  9  Kan.  App.  222, 
59  Pac.  679. 

<27  In  re  Beechwood  Ave.,  194  Pa. 
86.  "The  objection  that  a  majority 


in  interest  and  number  of  property 
owners  did  not  sign  the  petition  to 
councils  was  not  made  in  the  court 
below  nor  is  it  embraced  in  any  of 
the  specifications  of  error.  It  might 
be  well  dismissed  with  the  remark 
that  it  is  not  properly  on  the  rec- 
ord. Treating  it  as  properly  before 
us,  however,  it  is  still  without  mer- 
it. The  tenth  section  of  the  act  of 
May  16th,  1891,  makes  special  pro- 
vision for  raising  this  objection  by 
proceedings  on  the  ordinance,  un- 
der penalty  of  estoppel.  As  to  the 
vital  importance  of  definitively  set- 
tling such  questions  in  the  outset, 
Mr.  Justice  Sharswood,  in  City  of 
Erie  v.  Bootz,  72  Pa.  200  said:  'It 
is  not  only  important  that  this 
should  be  settled  but  that  the  ques- 
tion of  the  numbers  should  be  con- 
clusively determined  before  the  ex- 
pense of  the  improvement  should  be 
incurred.  If  it  were  left  open  for 
contest,  no  street  could  be  paved 
without  leading  to  controversy  on 
the  subject.' " 

428  McVey  v.  City  of  Danville,  188 
111.  428,  58  N.  E.  955.  The  burden 
of  proof  is  upon  the  one  attacking 
the  validity  of  the  proceedings.  Mer- 
ritt  v.  City  of  Kewanee,  175  111.  537. 
The  subsequent  ratification  of  a  pe- 
tition by  signers  will  not  validate 
a  defectively  signed  petition.  Tay- 
lor v.  City  of  Bloomington,  186  111. 
497.  The  city  cannot  by  manipula- 
tion change  the  lines  of  streets  and 
alleys  so  as  to  increase  the  frontage 


§  360a 


SPECIAL  ASSESSMENTS. 


889 


question  of  whether  the  petition  has  been  signed  by  the  requisite 
number  of  property  owners  is  one  of  fact,429  a  jurisdictional 
question,430  and,  therefore,  one  which  can  be  raised  at  any  time 
even  in  an  action  of  ejectment  to  recover  back  the  land  after  a 
subsequent  sale.431  The  recitals  in  an  ordinance  concerning  the 


of  petitioning  owners  thereby  vali- 
dating the  petition.  Bouldin  v.  City 
of  Baltimore,  15  Md.  18;  Collins  v. 
Grand  Rapids  Tp.,  108  Mich.  675,  66 
N.  W.  586;  Batty  v.  City  of  Hastings, 
63  Neb.  26,  88  N.  W.  139;  Allen  v. 
City  of  Portland,  35  Or.  420. 

429  Ahern  v.  Board  of  Improve- 
ment, 69  Ark.  68,  61  S.  W.  575;  City 
of  Bloomington  v.  Reeves,  177  111. 
161;  Patterson  v.  City  of  Macomb, 
179  111.  163;  Carroll  County  Com'rs 
T.  Justice,  133  Ind.  89,  30  N.  E.  1085. 
A  misunderstanding  on  the  part  of 
property  owners  as  to  the  amount 
to  be  assessed  will  not  relieve  them. 
Maguire  v.  Smock,  42  Ind.  1;  City 
of  Argentine  v.  Simmons,  54  Kan. 
699;  Kansas  City  v.  Kimball,  60 
Kan.  224,  56  Pac.  78.  The  petition 
need  not  show  affirmatively  the  fact 
that  it  was  signed  by  a  majority 
of  the  frontage  to  be  approved. 

State  v.  City  of  Bayonne,  54  N. 
J.  'Law,  293,  23  Atl.  648;  People  v. 
City  of  Syracuse,  30  Misc.  409,  63 
N.  Y.  Supp.  878.  Signers  of  a  pe- 
tition may  withdraw  their  names 
and  in  such  case  if  it  leaves  less 
than  the  required  number,  the  peti- 
tion will  be  invalid.  Allen  v.  City 
of  Portland,  35  Or.  420.  A  city 
council  in  determining  the  suffi- 
ciency of  a  petition  exercises  a 
quasi  judicial  function  and  such  de- 
termination, therefore,  is  not  open 
to  collateral  attack. 

Kent  v.  Village  of  Enosburg  Falls, 
71  Vt.  255.  Such  petition  must  af- 
firmatively show  on  its  face  that  the 
requisite  number  of  signers  were 


freeholders  and  legal  voters.  Wright 
v.  City  of  Tacoma,  3  Wash.  T. 
410,  19  Pac.  42.  In  ascertaining 
whether  the  petition  has  been  signed 
by  the  required  number  of  property 
owners  in  determining  the  frontage, 
the  width  of  intersecting  streets 
should  be  subtracted  from  the  total 
length  of  the  improvement. 

430  Ogden  City  v.  Armstrong,   168 
U.  S.   224,  18  Sup.  Ct.  98;   Kahn  v. 
San  Francisco  City  &  County  Sup'rs, 
79  Cal.  388;   Keese  v.  City  of  Den- 
ver, 10  Colo.  112;  Grant  v.  Bartholo- 
mew, 58  Neb.   839;    Leavitt  v.  Bell, 
55  Neb.   57,   75   N.  W.  524;    App  v. 
Town  of  Stockton,  61  N.  J.  Law,  520, 
39    Atl.    921.     Town    of    Roswell    v. 
Dominice,  9  N.  M.  624,  citing  Zeigler 
v.  Hopkins,  117  U.  S.  683;  Mulligan 
v.  Smith,  59  Cal.  206;  and  Holland 
v.  City  of  Baltimore,  11  Md.  186. 

Miller  v.  City  of  Amsterdam,  149 
N.  Y.  288.  The  decision  of  a  city 
council  that  a  petition  for  an  im- 
provement has  been  signed  by  the 
required  majority  of  property  own- 
ers ia  a  ministerial  act,  not  a  judi- 
cial or  quasi  judicial  one  and  can  be 
collaterally  attacked.  Allen  v.  City 
of  Portland,  35  Or.  420;  Dieckmann 
v.  Sheboygan  County,  89  Wis.  571. 

431  Zeigler  v.   Hopkins,   117  U.   S. 
683,  approving  and  following  Mulli- 
gan v.  Smith,  59  Cal.  206.     In  the 
last  case  the  subject  is  elaborately 
discussed  and  authorities  cited.   The 
court  say:     "A  statute  of  California 
authorized  the  opening  of  a  street 
in   San   Francisco  to  be  known   as 
"Montgomery  Avenue,"  the  cost  and 


890 


PUBLIC  REVENUES. 


§   361 


filing  of  a  petition  with  the  requisite  signatures  is  usually  con- 
sidered, however,  prima  facie  evidence  of  such  facts,432  and  the 
burden  of  proof  is  on  the  one  attacking  the  validity  of  the  pro- 
ceedings in  any  respect. 

§  361.    Declaration  of  necessity. 

In  still  other  municipalities  the  act  necessary  for  the  con- 
struction of  the  local  improvement  and  the  resulting  levy  of  a 
local  assessment  is  based  upon  what  may  be  termed  "a  declara- 
tion of  necessity"  by  the  proper  public  officials;433  this,  as  the 


expenses  to  be  assessed  on  certain 
specified  lots  in  proportion  to  the 
benefits  accruing  therefrom;  and 
provided  that  when  a  majority  in 
frontage  of  the  owners  of  these  bene- 
fited lots  should  petition  certain  offi- 
cials for  the  opening,  those  officials 
should  organize  into  a  board  and  pro- 
ceed to  open  it  and  to  apportion  the 
cost  in  the  manner  appointed  out 
by  the  statute.  A  petition  being 
presented  to  the  designated  officials, 
they  organized,  and  certified  that  the 
petition  had  been  subscribed  by  the 
owners  of  the  requisite  amount  of 
frontage  and  proceeded  to  lay  out 
the  street  and  apportion  the  costs 
and  expenses  among  those  benefited 
in  the  manner  provided  by  the  stat- 
ute. They  reported  their  action  to 
the  county  court  as  required  by  the 
statute  and  the  report  was  confirm- 
ed by  the  court.  A  tax  was  there- 
upon levied  in  the  ordinary  way  in 
1878-9  to  meet  the  portion  of  the 
costs  and  expenses  payable  that  year 
by  the  terms  of  the  statute.  H,  an 
owner  of  a  lot  thus  assessed  and 
levied  on,  declining  to  pay,  the  land 
was  seized  and  sold  for  the  default 
to  Z;  H  thereupon  brought  eject- 
ment to  recover  possession.  Held, 
that  on  the  trial  of  this  action,  H 
was  not  estopped  by  the  acceptance 


of  the  petition  by  the  officials  and 
their  certificate  upon  it  or  by  the 
judgment  of  the  county  court  con- 
firming their  report,  from  showing 
that  the  petition  for  the  opening 
was  not  signed  by  the  owners  of  the 
requisite  amount  of  frontage." 

432  Parrell  v.   West  Chicago  Park 
Com'rs,  181  U.  S.  404,  affirming  182 
111.  250;  Cummings  v.  West  Chicago 
Park  Com'rs,  181  111.  136;  McManus 
v.  People,  183  111.391;  City  of  Scran- 
ton  v.  Jermyn,  156  Pa.  107.    The  pas- 
sage of  such  an  ordinance  based  upon 
such  petition   is  held   conclusive  of 
the  fact  that  the  necessary  majority 
of   owners   have   petitioned   for   the 
improvement. 

433  Field    v.    Village    of    Western 
Springs,  181  111.  186.     Irrespective  of 
a  declaration  of  necessity,  the  ques- 
tion   of   the   necessity   of   local    im- 
provements is  committed  by  law  to 
the  city  council,  and  in  the  exercise 
of  the  power,  unless  it  is  so  unrea- 
sonable as  to  be  void,  the  courts  will 
not  interfere.     See,  also,  as  holding 
the  same  general  principle,  Trustees 
of  Hazelgreen  v.  McNabb,  23  Ky.  L. 
R.  811,  64  S.  W.  431. 

City  of  Greensburg  v.  Zoller,  28 
Ind.  App.  126,  60  N.  E.  1007.  The 
resolution  of  necessity  may  refer  to 
plans  on  file  in  the  office  of  the  city 


§  361 


SPECIAL  ASSESSMENTS. 


891 


phrase  implies,  is  simply  an  official  declaration  that  the  improve- 
ment contemplated  is  a  public  necessity  and  will  result  in  a 
benefit  or  advantage  to  the  property  in  that  vicinity.434  This 
declaration  may  be  the  result  of  an  investigation  in  regard  to  its 
substance,  and  can  be  said,  therefore,  theoretically  to  be  based 
upon  an  official  investigation  of  the  merits,  advantages  and 
necessity  for  the  public  improvement  or  local  improvement.435 
Ordinarily,  the  determination  of  whether  a  necessity  exists  is  a 
matter  of  discretion  for  municipal  authorities  and  their  action 
will  not  be  interfered  with  by  the  courts  except  in  case  of  cor- 
ruption or  manifest  abuse  of  the  power.436 


engineer  and  in  such  case  it  is  not 
necessary  to  repeat  the  details  of 
such  specifications  and  plans  in  the 
body  of  the  resolution.  Pittsburgh, 
C.,  C.  &  St.  L.  R.  Co.  v.  Hays, 
17  Ind.  App.  261,  44  N.  E.  375, 
45  N.  E.  675,  46  N.  E.  597.  Un- 
der Indiana  Rev.  St.  1894,  §  4289, 
the  resolution  declaring  the  neces- 
sity of  a  street  improvement  is  not 
jurisdictional.  See,  also,  as  holding 
the  same,  Willard  v.  Albertson,  20 
Ind.  App.  164,  53  N.  E.  1077,  54  N. 
E.  403. 

Spaulding  v.  Baxter,  25  Ind.  App. 
485,  58  N.  E.  551;  Barber  Asphalt 
Pav.  Co.  v.  Edgerton,  125  Ind.  455; 
Hughes  v.  Parker,  148  Ind.  692.  A 
failure  to  pass  the  resolution  of 
necessity  is  not  fatal  where  proper 
notice  and  hearing  were  given  to  the 
property  owner  before  the  making  of 
the  final  assessment.  Kansas  Town 
Co.  v.  City  of  Argentine,  5  Kan. 
App.  50,  47  Pac.  542.  affirmed  in  59 
Kan.  779,  54  Pac.  1131;  Hoyt  v.  City 
of  East  Saginaw,  19  Mich.  39;  Cum- 
ing  v.  City  of  Grand  Rapids,  46  Mich. 
150;  Welker  v.  Potter,  18  Ohio  St. 
85. 

*3*  McManus  v.  Hornaday,  99  Iowa, 
507;  Purdy  v.  Drake,  17  Ky.  L.  R. 
819,  32  S.  W.  939;  Dorman  v.  City 
Council  of  Lewiston.  81  Me.  411; 


State  v.  Armstrong,  54  Minn.  457; 
City  of  Springfield  v.  Weaver,  137 
Mo.  650;  City  of  Raleigh  v.  Peace, 
110  N.  C.  32.  The  element  of  neces- 
sity will  be  implied  from  the  pas- 
sage of  an  ordinance  ordering  the 
improvement.  Caldwell  v.  Village 
of  Carthage,  49  Ohio  St.  344,  31  N.  E. 
602.  The  necessity  for  such  a  reso- 
lution does  not  apply  under  Rev.  St. 
§  2304,  to  the  condemnation  of  pri- 
vate property  for  public  streets  but 
only  to  improvements  of  a  construc- 
tive character. 

Hunter  v.  City  of  Newport,  5  R.  I. 
325;  Noel  v.  City  of  San  Antonio,  11 
Tex.  Civ.  App.  580;  City  of  Waco  v. 
Chamberlain  (Tex.  Civ.  App.)  45  S. 
W.  191;  City  of  Waco  v.  Prather,  90 
Tex.  80;  Kent  v.  Village  of  Enosburg 
Falls,  71  Vt.  255.  The  question  of 
necessity  based  upon  public  health  or 
convenience  is  jurisdictional.  Boyd 
v.  City  of  Milwaukee,  92  Wis.  456, 
66  N.  W.  603. 

«5  Young  v.  City  of  St.  Louis,  47 
Mo.  492;  Jackson  v.  State,  104  Ind. 
516. 

«6  Burckhardt  v.  City  of  Atlanta, 
103  Ga.  302,  30  S.  E.  32;  Bacon  v. 
City  of  Savannah,  105  Ga.  62,  31  S.  E. 
127;  Regenstein  v.  City  of  Atlanta, 
98  Ga.  167;  Holdom  v.  City  of  Chi- 
cago, 169  111.  109;  McChesney  v.  City 


892 


PUBLIC  REVENUES. 


§   362 


§  362.     Construction  of  the  improvement. 

The  improvement  or  assessment,  however,  authorized  or  com- 
menced, must  follow  strictly  the  authority  for  its  construction 
or  levy;437  the  cost  or  amount  cannot  exceed  that  authorized,438 


of  Chicago,  171  111.  253;  City  of  Elk- 
hart  v.  Wickwire,  121  Ind.  331,  22  N. 
E.  342;  Coburn  v.  Bossert,  13  Ind. 
App.  359,  40  N.  E.  281;  Dewey  v. 
City  of  Des  Moines,  101  Iowa,  416, 
70  N.  W.  605;  Wilkin  v.  Houston,  48 
Kan.  584,  30  Pac.  23;  Seward  v. 
Rheiner,  2  Kan.  App.  95,  43  Pac. 
423;  Stewart  v.  City  of  Neodesha, 
3  Kan.  App.  330,  45  Pac.  110;  Bullitt 
v.  Selvage,  20  Ky.  L.  R.  599,  47  S. 
W.  255;  Barfield  v.  Gleason,  111  Ky. 
491,  63  S.  W.  964;  City  of  Baltimore 
V.  Stewart,  92  Md.  535,  48  Atl.  165; 
Alberger  v.  City  of  Baltimore,  64 
Md.  1;  Burnett  v.  City  of  Boston, 
173  Mass.  173,  53  N.  E.  379;  Miller 
v.  City  of  Fitchburg,  180  Mass.  32,  61 
N.  E.  277;  Shimmons  v.  City  of 
Saginaw,  104  Mich.  511,  62  N.  W. 
725;  City  of  Detroit  v.  Beecher,  75 
Mich.  454,  4  L.  R.  A.  813;  Monroe 
County  v.  Strong,  78  Miss.  565,  29  So. 
530;  City  of  Cape  Girardeau  v. 
Houck,  129  Mo.  607,  31  S.  W.  933; 
Moran  v.  Lindell,  52  Mo.  229;  City 
of  Marionville  v.  Henson,  65  Mo. 
App.  397;  City  of  Kansas  v.  Baird,  98 
Mo.  215;  State  v.  Engelmann,  106 
Mo.  628;  In  re  Folts  St.  in  Village  of 
Herkimer,  18  App.  Div.  568,  46  N. 
Y.  Supp.  43. 

«T  Watkins  v.  Griffith,  59  Ark.  344, 
27  S.  W.  234;  Williams  v.  Bisagno 
(Cal.)  34  Pac.  640;  Partridge  v. 
Lucas,  99  Cal.  519;  Jefferson  County 
v.  City  of  Mt.  Vernon,  145  111.  80; 
McChesney  v.  City  of  Chicago,  152 
111.  543.  Where  variations  between 
the  authority  and  the  ordinance  can 
be  reconciled,  a  discrepancy  will  not 


be  fatal  to  the  assessment.  Illinois 
Cent.  R.  Co.  v.  City  of  Effingham,  172 
111.  607.  Neither  can  the  actual  im- 
provement be  less  in  extent  than  that 
authorized. 

Pells  v.  City  of  Paxton,  176  111. 
318;  People  v.  McWethy,  177  111.  334; 
Gait  v.  City  of  Chicago,  174  111.  605. 
An  attempted  amendment  which  is 
void  of  a  local  improvement  or- 
dinance changing  the  character  of  a 
local  improvement  will  not  invalid- 
ate an  assessment  based  upon  the 
ordinance  attempted  to  be  amended. 
Whaples  v.  City  of  Waukegan,  179 
111.  310;  Chicago  Terminal  Transfer 
R.  Co.  v.  City  of  Chicago,  184  111.  154; 
Clarke  v.  City  of  Chicago,  185  111. 
354;  Mead  v.  City  of  Chicago,  186 
111.  54.  An  immaterial  variance  will 
not,  however,  invalidate  an  assess- 
ment. Halsey  v.  Town  of  Lake 
View,  188  111.  540;  People  v.  Church, 
192  111.  302.  The  construction  of  an 
improvement  approximately  near 
that  authorized  will  not  invalidate 
an  assessment  where  it  appears  that 
such  deviation  from  the  ordinance 
authorized  has  not  worked  any  in- 
jury to  the  property  owners  assessed 
for  the  improvement;  reversing  in 
this  respect  Church  v.  People,  174 
111.  366. 

Lake  Erie  &  W.  R.  Co.  v.  Walters, 
13  Ind.  App.  275,  41  N.  E.  465;  City 
of  St.  Joseph  v.  Landis,  54  Mo.  App. 
315;  City  of  Marionville  v.  Henson, 
65  Mo.  App.  397;  City  of  Trenton  v. 
Collier,  68  Mo.  App.  483;  Hutchinson 
v.  City  of  Omaha,  52  Neb.  345,  72  N. 
W.  218;  Vanderbeck  v.  Jersey  City, 


§  363 


SPECIAL  ASSESSMENTS. 


893 


neither  should  the  improvement  differ  in  character  or  extent  of 
work  or  materials439  from  that  directed  to  be  constructed  or  pe- 
titioned for. 

§  363.    Notice  to  property  owners. 

The  authorities  hold  almost  universally  that  the  legality  of 


29  N.  J.  Law  (5  Dutch.)  441.  This 
case  holds  quite  contrary  to  the  gen- 
eral authority  that  an  assessment  for 
a  public  improvement  is  not  invalid- 
ated by  a  change  in  its  plan  of  con- 
struction from  that  which  was  orig- 
inally adopted  by  the  city  council. 
People  v.  Board  of  Improvement,  43 
N.  Y.  2271  Conde  v.  City  of  Schenec- 
tady,  164  N.  Y.  258.  The  exercise  of 
discretionary  powers  by  a  municipal 
council  regarding  the  time  of  pay- 
ment of  the  assessment  will  not  be 
interfered  with.  Haisch  v.  City  of 
Seattle,  10  Wash.  435,  following 
Buckley  v.  City  of  Tacoma,  9  Wash. 
253. 

Texas  Transp.  Co.  v.  Boyd,  67  Tex. 
153. 

438  Piedmont  Pav.  Co.  v.  Allman, 
136  Cal.  88,  68  Pac.  493;  Partridge 
v.  Lucas,  99  Cal.  519;  Payne  v.  Vil- 
lage of  South  Springfield,  161  111. 
285;  Chicago  Terminal  Transfer  Co. 
v.  City  of  Chicago,  178  III.  429;  Wells 
County  Com'rs  v.  Fahlor,  114  Ind. 
176,  15  N.  E.  830. 

Loesnitz  v.  Seelinger,  127  Ind.  422, 
25  N.  E.  1037,  26  N.  E.  887.  Where 
the  cost  of  the  work  exceeds  the  esti- 
mate, the  assessment  will  still  be 
valid  to  the  extent  of  such  estimate. 
Campbell  v.  Monroe  County  Com'rs, 
118  Ind.  119;  Kansas  Town  Co.  v. 
City  of  Argentine,  59  Kan.  779,  54 
Pac.  1131.  Where  the  unauthorized 
improvement  is  easily  separable  from 
the  authorized  work,  the  assessment 
will  be  valid  to  such  extent.  Brady 
v.  Rogers,  63  Mo.  App.  222;  Souther 


v.  Village  of  South  Orange,  46  N.  J. 
Law,  317. 

439  McClellan  v.  District  of  Colum- 
bia, 7  Mackey  (D.  C.)  94.  An  or- 
dinance which  authorizes  paving  and 
curbing  will  not  sustain  an  assess- 
ment for  paving,  grading  and  curb- 
ing. N.  P.  Ferine  Contracting  & 
Pav.  Co.  v.  City  of  Pasadena,  116 
Cal.  6;  City  of  Burlington  v.  Gilbert, 
31  Iowa,  356.  Where  the  variance, 
however,  is  immaterial,  it  will  not 
affect  the  validity  of  the  proceedings 
or  of  the  assessment.  Jefferson 
County  v.  City  of  Mt.  Vernon,  145  111. 
80,  33  N.  E.  1091;  Hull  v.  West  Chi- 
cago Park  Com'rs,  185  111.  150.  A 
general  objection  directed  against  a 
variance  between  the  estimate  of  cost 
made  by  commissioners  and  the  or- 
dinance providing  for  a  special  as- 
sessment is  of  no  force  when  the 
specific  items  are  not  given. 

Fiske  v.  People,  188  111.  206,  52  L. 
R.  A.  291.  A  variance  between  a 
description  of  a  street  improvement 
in  the  ordinance  authorizing  it,  in 
the  estimate  of  cost,  cannot  be  first 
set  up  on  the  application  for  judg- 
ment of  sale.  Allen  v.  City  of  Dav- 
enport, 107  Iowa,  90,  77  N.  W.  532; 
Harbaugh  v.  Martin,  30  Mich.  234; 
Davies  v.  City  of  Saginaw,  87 
Mich.  439;  Conde  v.  City  of  Sche- 
nectady,  164  N.  Y.  258,  reversing  29 
App.  Div.  604,  51  N.  Y.  Supp.  854; 
Tredwell  v.  City  of  Brooklyn,  11 
App.  Div.  224,  43  N.  Y.  Supp.  458; 
Mason  v.  City  of  Sioux  Falls,  2  S.  D. 
640,  51  N.  W.  770. 


894 


PUBLIC  REVENUES. 


363 


special  assessment  proceedings  depends  not  only  upon  some  one 
or  more  of  the  various  steps  suggested  in  the  preceding  sections, 
but  also  upon  the  further  and  most  essential  act,  namely,  the 
giving  of  notice  to  the  owners  of  property  that  will  become 
subject  to  the  special  assessment,  the  information  that  the  mu- 
nicipal organization  is  contemplating  the  construction  of  a  local 
improvement.440  This,  in  some  jurisdictions,  is  imparted  to  the 


4*0  See  cases  collected,  32  Am.  & 
Eng.  Corp.  Cas.  234  et  seq.  upon  the 
right  of  property  owners  to  notice  of 
assessment  for  local  improvements. 
Paulsen  v.  City  of  Portland,  149  U. 
S.  30.  Also,  Id.,  16  Or.  450,  1  L.  R. 
A.  673.  Scott  v.  City  of  Toledo,  36 
Fed.  385.  Revised  statutes  of  Ohio, 
§  2283,  require  that  "so  far  as  prac- 
ticable, *  *  *  regard  must  be 
had  in  making  special  assessments 
to  the  probable  benefits  to  the  prop- 
erty assessed."  Under  this  section 
the  court  held  that  it  was  an  essen- 
tial element  of  due  "process  of  law" 
that  in  levying  special  assessments 
notice  or  an  opportunity  to  be  heard 
be  given  to  the  owner  of  the  land 
assessed  and  this  rule  is  especially 
applicable  where  under  the  laws  of 
the  state  special  assessments  can  be 
collected  by  distress  without  notice 
to  the  owner. 

Bensinger  v.  District  of  Columbia, 
6  Mackey  (D.  C.)  285;  Hellman  v. 
Shoulters,  114  Cal.  136,  44  Pac.  915, 
45  Pac.  1057.  The  burden  of  proof 
is  upon  the  one  claiming  that  notice 
was  not  either  given  or  was  implied- 
ly  given.  Oakland  Bank  of  Savings 
v.  Sullivan,  107  Cal.  428;  Brown  v. 
City  of  Denver,  7  Colo.  305;  Walsh 
v.  City  of  Ansonia,  69  Conn.  558,  37 
Atl.  1096;  Bowman  v.  People,  137 
111.  436,  27  N.  E.  598;  McChesney 
v.  People,  145  111.  614. 

Chicago  West  Div.  R.  Co.  v.  Peo- 
ple, 154  111.  256,  following  Stanton 


v.  City  of  Chicago,  154  111.  23,  39  N. 
E.  987.  When  the  proceedings  have 
reached  the  stage  that  a  judgment 
of  confirmation  has  been  given,  such 
judgment  is  conclusive  upon  the 
question  of  the  sufficiency  in  all  re- 
spects of  a  notice  to  property  own- 
ers. See  also  as  holding  the  same, 
People  v.  Ryan,  156  111.  620,  41  N.  E. 
180;  Clark  v.  People,  146  111.  348. 

Boynton  v.  People,  155  111.  66.  In 
this  case  the  giving  of  notice  is  held 
jurisdictional  under  the  question  of 
sufficiency  and  therefore,  raised  at 
any  time  even  on  application  for 
judgment  on  delinquent  taxes.  Lar- 
son v.  City  of  Chicago,  172  111.  298. 
The  findings  of  jurisdictional  facts 
recited  in  the  special  assessment 
judgment  it  will  be  presumed  were 
warranted  by  the  evidence  in  the  ab- 
sence of  a  bill  of  exceptions.  In  the 
case  of  Gage  v.  People,  188  111.  92, 
it  is  held  that  the  record  in  default 
cases  must  affirmatively  show  the 
sufficiency  and  the  existence  of  the 
necessary  jurisdictional  facts  includ- 
ing that  of  the  giving  of  notice. 

Michael  v.  City  of  Mattoon,  172  111. 
394;  Porter  v.  City  of  Chicago,  176 
111.  605.  The  petition  with  a  properly 
certified  copy  of  the  ordinance,  the 
assessment  roll,  affidavit  of  mailing 
and  posting  notices  and  proof  of 
publication,  are  sufficient  evidence 
under  Laws  1897,  p.  119,  §  49,  to 
authorize  the  confirmation  of  a  spe- 
cial assessment  where  this  law  pro- 


§   363  SPECIAL  ASSESSMENTS.  895 

property   owner   through    what   may   be  termed,   technically,    a 


vides  that  those  proofs  "shall  be 
prima  facie  evidence  of  the  correct- 
ness of  the  amount  assessed  against 
each  objecting  owner."  Taber  v. 
Ferguson,  109  Ind.  227,  9  N.  E.  723. 
The  question  of  insufficiency  of  a 
notice  must  be  raised  by  answer, 
not  by  a  demurrer  to  the  transcript 
under  Rev.  St.  §  3165.  Quill  v.  City 
o'f  Indianapolis,  124  Ind.  292,  23  N. 
E.  788,  7  L.  R.  A.  681;  Spaulding  v. 
Baxter,  25  Ind.  App.  485,  58  N.  E. 
551;  Dowell  v.  Talbot  Pav.  Co.,  138 
Ind.  675;  Adams  v.  City  of  Shelby- 
ville,  154  Ind.  467,  49  L.  R.  A.  797; 
Gatch  v.  City  of  Des  Moines,  63 
Iowa,  718.  A  notice  is  necessary 
though  not  required  by  either  statute 
or  ordinance.  Chesapeake  &  O.  R. 
Co.  v.  Mullins,  94  Ky.  355,  22  S.  W. 
558;  Ulman  v.  City  of  Baltimore,  72 
Md.  587,  20  Atl.  141,  21  Atl.  709,  11 
L.  R.  A.  224. 

Collins  v.  City  of  Holyoke,  146 
Mass.  298,  15  N.  E.  908.  No  notice 
is  necessary  of  a  resolution  of  in- 
tention to  lay  out  or  construct  a 
public  improvement.  Boyce  v.  Peter- 
son, 84  Mich.  490,  47  N.  W.  1095. 
Where  affirmative  proof  of  posting  of 
notice  is  required,  its  omission  in 
the  records  will  render  the  assess- 
ment void.  Mills  v.  City  of  Detroit, 
95  Mich.  422,  54  N.  W.  897;  Grand 
Rapids  School  Furniture  Co.  v.  City 
of  Grand  Rapids,  92  Mich.  564.  In 
the  absence  of  a  charter  require- 
ment for  the  giving  of  notice  this 
will  not  be  necessary. 

Flint  v.  Webb,  25  Minn.  93;  Over- 
mann  v.  City  of  St.  Paul,  39  Minn. 
120,  39  N.  W.  66.  The  giving  of  no- 
tice as  required  by  §§  8  and  15 
of  title  1,  c.  7,  St.  Paul  City  charter 
is  jurisdictional  and  a  failure  in  this 
respect  will  render  void  a  local  im- 


provement proceeding.  State  v.  Otis, 
53  Minn.  318;  Clarke  v.  Long  Branch 
Com'rs,  54  N.  J.  Law,  484,  24  Atl. 
368;  Ives  v.  Irey,  51  Neb.  ]36,  70 
N.  W.  961.  A  provision  for  notice 
to  property  owners  will  be  manda- 
tory. Milner  v.  Inhabitants  of  Tren- 
ton, 66  N.  J.  Law,  150,  48  Atl.  531; 
Winans  v.  Commissioners  of  High- 
ways of  Cranford,  57  N.  J.  Law,  71; 
Tifft  v.  City  of  Buffalo,  7  N.  Y.  Supp. 
633.  The  existence  of  jurisdictional 
facts  will  be  presumed  including  the 
giving  of  notice.  Seaman  v.  Dick- 
inson, 1  App.  Div.  19,  36  N.  Y.  Supp. 
748,  following  People  v.  Village  of 
New  Rochelle,  83  Hun,  185,  31  N. 
Y.  Supp.  592. 

In  re  Zborowski,  68  N.  Y.  88. 
Where  the  statute  does  not  require 
the  giving  of  notice,  none  will  be 
necessary.  People  v.  McCue,  74  App. 
Div.  40,  77  N.  Y.  Supp.  303;  Mc- 
Laughlin  v.  Miller,  124  N.  Y.  510. 
The  giving  of  notice  to  landowners 
is  necessary  though  not  required  by 
statute.  In  re  Pennie,  19  Abb.  N.  C. 
(N.  Y.)  117;  Barkley  v.  Oregon  City, 
24  Or.  515,  33  Pac.  978.  The  pre- 
sumption exists  that  the  proper  no- 
tice was  given.  Cook  v.  City  of 
Portland,  35  Or.  383.  A  notice  is 
necessary  when  street  repairs  are  to 
be  charged  against  adjacent  property 
and  are,  therefore,  regarded  as  "im- 
provements." Hershberger  v.  City 
of  Pittsburgh,  115  Pa.  78,  8  Atl.  381; 
City  of  Pittsburg  v.  Coursin,  74  Pa. 
400.  The  rule  that  affirmative  words 
relating  to  the  manner  in  which 
power  or  jurisdiction  in  a  public 
officer  is  to  be  exercised  are  applied 
in  this  case  to  an  act  requiring  no- 
tice. Buchanan  v.  Borough  of  Bear- 
er, 171  Pa.  567;  City  Council  v. 
Pinckney,  3  Brev.  (S.  C.)  217;  Con- 


896 


PUBLIC  REVENUES. 


§  363 


notice  to  construct;441  that  is,  a  proper  notice  is  served  upon 
the  property  owner  requiring  the  construction  of  the  local  im- 
provement and  giving  him  an  opportunity  to  do  so.  Upon  his 
failure,  the  municipality  is  then  authorized  to  proceed  itself 
without  further  notice  of  the  assessment  proceedings.44-  The 
notice  to  construct  given  is  all  that  is  necessary  to  enable  the 
property  owner  to  protect  his  rights,  correct  errors  or  prevent 
in  some  cases  the  construction  of  the  local  improvement,443  al- 


nor  v.  City  of  Paris,  87  Tex.  32. 
Where  the  charter,  however,  re- 
quires no  notice,  none  is  necessary. 
Dietz  v.  City  of  Neenah,  91  Wis.  422. 
"I  Village  of  Western  Springs  v. 
Hill,  177  111.  634.  "The  main  ob- 
jection to  the  confirmation  of  the 
assessment  discussed  by  counsel  in 
their  briefs  is  that  the  ordinance 
providing  for  the  sidewalk  does  not 
give  to  the  property  owners  fifteen 
days  to  complete  or  build  the  side- 
walk in  front  of  their  property,  as 
required  by  section  nineteen  of  arti- 
cle nine  of  the  city  and  village  act. 
*  *  *  As  special  taxation  is  to  be 
levied,  assessed  and  collected  in  the 
mode  provided  for  the  making,  levy- 
ing, assessing  and  collecting  of  spe- 
cial assessments  and  as  section  nine- 
teen is  embraced  within  the  sections 
which  provide  the  mode  of  making 
improvements  by  special  assess- 
ments, it  would  seem  to  follow  that 
section  nineteen  and  the  provisos 
thereto  apply  as  well  to  improve- 
ments made  by  special  taxation  as 
to  improvements  made  by  special 
assessment.  Where  the  improve- 
ment is  by  special  assessment, 
the  owner  is  to  be  allowed  fif- 
teen days  after  the  taking  effect  of 
the  ordinance  in  which  to  build  the 
sidewalk  opposite  his  land  and  there- 
by relieve  the  same  from  the  assess- 
ment. So  also  where  the  improve- 
ment is  by  special  taxation  there  is 


no  reason  why  the  property  owner 
should  not  be  allowed  the  privilege  of 
building  or  renewing  the  sidewalk 
opposite  his  land  within  the  fifteen 
days  named  in  the  proviso."  Leuly 
v.  Town  of  West  Hoboken,  53  N.  J. 
Law,  64. 

442  See  cases  cited  in  note  379,  § 
354.     Manning  v.  Den,  90  Cal.  610; 
Case  v.  Johnson,  91  Ind.  477;  South 
Bellevue  Lot  Ass'n  v.  Town  of  Belle- 
vue,  22  Ky.  L.  R.  541,  58  S.  W.  443. 
On  the  other  hand,  where  street  im- 
provements  have  been    made   by   a 
property  owner  without  the  knowl- 
edge of  the  town,  it  will  not  be  lia- 
ble  to   him   for  its  cost.     Trustees 
of   Hazelgreen    v.    McNabb,    23    Ky. 
L.  R.   811,   64    S.   W.   431;    Tufts  v. 
City  of  Charlestown,  98  M?.ss.  583; 
Scott    County    v.    Hinds,    50    Minn. 
204;    Rogers  v.  City  of  Milwaukee, 
13  Wis.  610;    Myrick  v.  City  of  La 
Crosse,  17  Wis.  442. 

443  Culbertson    v.     The     Southern 
Belle,  1  Newb.  Adm.  461,  Fed.  Gas. 
No.     3,462.     Municipal    corporations 
when   authorized  by  the  legislature 
have   the   right   to   pass    rules   and 
regulations  relative  to  river  landings 
within    their   limits.     Remy   v.    Mu- 
nicipality No.  2,  15  La.  Ann.  657. 

Horbach  v.  City  of  Omaha,  54  Neb. 
83,  74  N.  W.  434.  "But  appellant 
insists  that,  if  the  law  is  valid,  the 
city  was  not  justified  in  proceeding 
under  it  without  notice  to  him  and 


364 


SPECIAL  ASSESSMENTS. 


897 


though  the  latter  is  usually  a  discretionary  matter  with  the 
municipal  authorities  and  one  which  will  not  be  interfered  with 
by  the  courts  except  in  cases  of  corruption,  fraud  or  a  manifest 
abuse  of  the  power.44* 

§  364.    When  given. 

The  time  when  notice  shall  be  given  depends  upon  the  statutes 
or  local  ordinance  of  each  state  or  organization;  this  is  imma- 
terial so  long  as  it  is  given  at  some  stage  during  the  proceedings 
and  in  such  a  manner  as  to  serve  the  purpose  in  view  and  to 
accomplish  the  desired  result.445  It  may  be  given  at  the  incep- 


that  no  notice  was  ever  given.  The 
decree  of  the  district  court  recites 
that  no  written  notice  or  order  re- 
quiring Horbach  to  fill  or  grade  the 
lots  was  ever  served.  The  language 
of  this  finding  implies  that  the  court 
may  have  reached  the  conclusion 
that  notice  in  some  other  form  was 
given,  but  after  a  diligent  search,  we 
are  prepared  to  say  that  the  record 
affords  no  evidential  support  of  that 
implication.  And  there  can  be  in 
this  case  no  presumption  of  law  to 
supply  the  want  of  proof.  Hutchin- 
son  v.  City  of  Omaha,  52  Neb.  345; 
Smith  v.  City  of  Omaha,  49  Neb.  883. 
Under  the  section  of  the  charter 
above  quoted  it  is  quite  clear  that 
the  power  of  the  city  to  fill  or  grade 
the  lots  in  question  at  the  owner's 
expense  depended  upon  a  previous 
demand  having  been  made  upon  him 
to  do  the  work,  and  a  refusal  on  his 
part  to  do  it.  Demand  and  refusal 
were  indispensable  and  prerequisite 
to  the  authority  of  the  city  to  im- 
prove the  property  and  charge  it 
with  the  expense  of  the  improve- 
ment. The  legislature  having  pre- 
scribed the  terms  on  which  the  city 
was  authorized  to  make  assessments 
of  this  character,  the  power  to  make 
them  could  be  lawfully  exercised 


only  when  there  had  been  a  substan- 
tial compliance  with  the  statute. 
This  proposition  is  well  established 
by  authority."  Citing,  Fitchburg  R. 
Co.  v.  City  of  Fitchburg,  121  Mass. 
132;  Inhabitants  of  Northampton  v. 
Abell,  127  Mass.  507;  Grace  v.  Board 
of  Health,  135  Mass.  490;  Milton  v. 
Wacker,  40  Mich.  229;  Hutchinson  v. 
City  of  Omaha,  52  Neb.  345;  Edmis- 
ton  v.  Edmiston,  2  Ohio,  253;  Ander- 
son v.  Hamilton  County  Com'rs,  12 
Ohio  St.  644;  and  Johnston  v.  City 
of  Oshkosh,  21  Wis.  186. 

Winans  v.  Commissioners  of  High- 
ways of  Cranford,  57  N.  J.  Law,  71, 
29  Atl.  429;  Richter  v.  City  of  New 
York,  24  Misc.  613,  54  N.  Y.  Supp. 
150. 

***  Bozarth  v.  McGillicuddy,  19  Ind. 
App.  26;  Spaulding  v.  Baxter,  25 
Ind.  App.  485,  58  N.  E.  551;  Barber 
Asphalt  Pav.  Co.  v.  Edgerton,  125 
Ind.  455;  Boyd  v.  Murphy,  127  Ind. 
174. 

*«Allman  v.  District  of  Colum- 
bia, 3  App.  D.  C.  8;  Jones  v.  District 
of  Columbia,  3  App.  D.  C.  26;  King 
v.  Lamb,  117  Cal.  401;  Swain  v.  Ful- 
mer,  135  Ind.  8,  34  N.  E.  639;  Pitts- 
burgh, C.,  C.  &  St.  L.  R.  Co.  v.  Fish, 
158  Ind.  525,  63  N.  E.  454.  Under 
§  27  "Barrett  Law,"  so  called,  no  no- 


Abb.   Corp.— 57. 


898 


PUBLIC  REVENUES. 


§   364 


tion  of  the  improvement,  the  time  of  making  the  original  esti- 
mate of  cost,4*6  at  the  time  of  the  passage  of  an  ordinance  if  this 
is  the  mode  used,447  within  a  prescribed  time  after  the  work  of 
special  improvement  has  been  done,448  or  even  later,  at  the  time 
of  what  is  termed  the  levy  of  the  special  assessment.449  The 
purpose  of  such  notice  is  to  apprise  the  property  owner  of  the 
contemplated  action  by  municipal  authorities  and  give  him,  in 
justice  to  himself,  an  opportunity  to  protest,  remonstrate  or  take 
such  action  to  prevent  the  improvement  as  the  law  may  afford.450 


tice  of  the  adoption  of  the  primary 
resolutions  for  a  street  improvement 
is  required  to  be  given. 

Oliver  v.  Monona  County,  117  Iowa, 
*3,  90  N.  W.  510;  Nevin  v.  Roach, 
86  Ky.  492,  5  S.  W.  546;  City  of  Law- 
rence v.  Webster,  167  Mass.  513; 
Buddecke  v.  Ziegenhein,  122  Mo. 
239,  26  S.  W.  696,  following  Michael 
v.  City  of  St.  i^ouis,  112  Mo.  610; 
Verdin  v.  City  of  St.  Louis,  131  Mo. 
26.  Where  the  notice  is  given  by  the 
board  of  public  improvements  that 
on  a  day  named  they  will  consider 
the  feasibility  of  the  improvement 
of  a  certain  street,  such  notice  need 
not  be  specific  in  its  details  as  to 
the  character  of  improvement.  He- 
man  v.  Allen,  156  Mo.  534;  Ives  v. 
Irey,  51  Neb.  136;  Medland  v.  Lin- 
ton,  60  Neb.  249,  82  N.  W.  866; 
Bacon  v.  City  of  Elizabeth,  51  N.  J. 
Law,  246,  17  Atl.  91;  In  re  City  of 
Amsterdam  (N.  T.)  27  N.  E.  272, 
reversing  55  Hun,  270,  8  N.  Y.  Supp. 
834;  Matter  of  Zborowski,  68  N.  Y. 
88.  Where  the  right  to  enter  upon 
the  work  of  public  improvement  is 
on  condition  and  upon  the  giving  of 
notice  to  property  owners,  a  failure 
in  this  respect  will  render  such 
proceedings  invalid.  Loomis  v.  City 
•f  Little  Falls,  66  App.  Div.  299,  72 
N.  Y.  Supp.  774;  Hutcheson  v.  Stor- 
Tie  (Tex.  Civ.  App.)  48  S.  W.  785; 


Hennessy    v.    Douglas    County,    99 
Wis.  129. 

446  Gage  v.   City    of  Chicago,   196 
111.   512;   Fayssoux  v.  De  Chaurand, 
36  La.  Ann.  547;   Ulman  v.  City  of 
Baltimore,  72  Md.  587,  11  L.  R.  A. 
224;  Hand  v.  City  Council  of  Eliza- 
beth, 31  N.  J.  Law,  547;    Delaware 
&  H.  Canal  Co.  v.  City  of  Buffalo,  39 
App.  Div.  333,  56  N.  Y.  Supp.  976. 

447  Gill  v.  City  of  Oakland,  124  Cal. 
335;  City  of  Baltimore  v.  Scharf,  54 
Md.  499. 

448  District   of  Columbia  v.   Burg- 
dorf,  6  App.  D.  C.  465. 

449  Bowman  v.  People,  137  111.  436, 
27  N.  E.  598,  distinguishing  People 
v.    Clayton,   115   111.   150;    Smith   v. 
Abington  Sav.  Bank,  171  Mass.  178, 
50  N.  E.  545. 

450  Carson    v.    St.    Francis    Levee 
Dist.,    59    Ark.    513;     Los    Angeles 
Lighting  Co.  v.  City  of  Los  Angeles, 
106  Cal.  156;    Smith  v.  Hazard,  110 
Cal.  145;    House  v.   City  of  Greens- 
burg,  93  Ind.  533;  Kirkland  v.  Board 
of  Public  Works,  142  Ind.  123;  Mar- 
shall v.  City  of  Leavenworth,  44  Kan. 
459;  Daniel  v.  City  of  New  Orleans, 
26  La.   Ann.  1;    Nugent  v.   City  of 
Jackson,    72    Miss.    1040;    Forbis   v. 
Bradbury,  58  Mo.  App.  506;   Durant 
v.   Jersey   City,    25   N.    J.   Law    (1 
Dutch.)    309;    Jersey   City   Brewery 
Co.   Y.   Jersey  City,   42   N.   J.   Law, 


§  365 


SPECIAL  ASSESSMENTS. 


§  365.     How  given  and  to  whom. 

The  giving  of  notice  is  intended  to  apprise  the  property  owner 
of  the  pendency  of  the  local  assessment  proceedings.  In  many 
cases  property  subject  to  the  assessment  is  owned  by  nonresi- 
dents and  we  therefore  find  the  statutes  providing  for  the  giving 
of  either  actual451  or  constructive452  notice  making  either  suffi- 


575;  Vanderbeck  v.  Jersey  City,  44 
N.  J.  Law,  626;  In  re  Street  Open- 
ing &  Imp.  Board,  133  N.  Y.  436; 
Joyce  v.  Barron,  67  Ohio  St.  264; 
Clinton  v.  City  of  Portland,  26  Or. 
410;  Armstrong  v.  Ogden  City,  12 
Utah,  476. 

451  perry  v.  People,  155  111.  307; 
Larson  v.  People,  170  111.  93.  In  this 
case  the  court  holds  that  notice  by 
mailing,  posting  and  publication  are 
all  essential  to  jurisdiction.  City  of 
Auburn  v.  Paul,  84  Me.  212;  Hil- 
dreth  v.  City  of  Lowell,  77  Mass.  (11 
Gray)  345.  An  ordinance  which  re- 
quires the  council  "to  give  notice  in 
writing  to  the  several  owners"  is 
complied  with  by  serving  written 
notices  upon  all  known  owners  per- 
sonally or  at  their  several  places  of 
abode.  City  of  Lawrence  v.  Web- 
ster, 167  Mass.  513.  If  the  statute 
makes  no  specific  requirement  as  to 
the  manner  of  serving  notice  upon 
resident  landowners,  if  sent  by  mail 
it  will  be  sufficient. 

City  of  Springfield  v.  Weaver,  137 
Mo.  650,  37  S.  W.  509,  39  S.  W.  276; 
Locker  v.  Borough  of  South  Amboy, 
62  N.  J.  Law,  197,  40  Atl.  637.  N.  J. 
Laws  of  April  24th,  1897,  relating  to 
the  improvement  of  streets  does  not 
provide  for  constructive  notice  to 
property  owners;  actual  notice  must, 
therefore,  be  given  or  an  ordinance 
authorizing  the  construction  of  a 
sidewalk  will  be  invalid.  Wilson  v. 
Inhabitants  of  Trenton,  53  N.  J.  Law, 
645,  16  L.  R.  A.  200.  Notice  re- 


quired by  the  charter  of  the  city  of 
Trenton  must  be  served  personally 
on  resident  owners.  Service  by  leav- 
ing a  copy  at  the  residence  with  a 
member  of  the  family  is  insufficient. 

Landis  v.  Borough  of  Vineland,  60 
N.  J.  Law,  264.  Where  no  pro- 
vision is  made  for  constructive  no- 
tice a  reasonable  actual  notice  can  be 
given.  Hansen  v.  Hammer,  15 
Wash.  315.  The  law  is  not  uncon- 
stitutional as  granting  power  to  take 
private  property  without  due  process 
of  law  simply  because  it  does  not 
provide  for  personal  service  of  a 
petition  organizing  a  taxing  district 
on  every  person  residing  within  the 
limits  of  the  proposed  district. 

452  Lent  v.  Tillson,  140  U.  S.  316, 
affirming.  72  Cal.  404,  14  Pac.  71. 
The  publication  of  a  notice  required 
by  statute  can  be  made  in  the  sup- 
plement of  a  local  newspaper.  Wil 
liams  v.  Bisagno  (Cal.)  34  Pac.  640; 
King  v.  Lamb,  117  Cal.  401,  49  Pac. 
561;  California  Imp.  Co.  v.  Reynolds, 
123  Cal.  88,  55  Pac.  802;  Miller  v. 
Mayo,  88  Cal.  568;  Porphyry  Pav. 
Co.  v.  Ancker,  104  Cal.  340.  The 
word  "thereupon"  does  not  mean 
immediately  thereafter  in  construing 
California  act,  March  18th,  1885,  as 
amended  March  31st,  1891,  provid- 
ing for  the  posting  of  a  more  partic- 
ular notice  of  a  contemplated  im- 
provement for  the  adoption  of  the 
"resolution  of  intention"  by  the  city 
council. 

Angus    v.    City    of    Hartford,    74 


900 


PUBLIC  REVENUES. 


§  3G5 


cient  if  given  in  the  manner,  at  the  time  and  in  the  form  legally 
required.453     The  rule  of  strict  construction,  as  usual,  applies  to 


Conn.  27,  49  Atl.  192;  White  v.  City 
of  Chicago,  188  111.  392,  58  N.  E. 
917.  The  written  portion  of  an  af- 
fidavit controls  its  printed  portion 
in  respect  to  recitals  of  fact.  Evans 
v.  People,  139  111.  552;  Derby  v. 
West  Chicago  Park  Com'rs,  154  111. 
213;  Perry  v.  People,  155  111.  307; 
Hoover  v.  People,  171  111.  182;  Lingle 
v.  City  of  Chicago,  172  111.  170;  Klein 
v.  Tuhey,  13  Ind.  App.  74,  40  N.  E. 
144;  Lyman  v.  Plummer,  75  Iowa, 
353,  39  N.  W.  527.  The  legislature 
may  delegate  to  municipalities  the 
power  to  determine  the  manner  in 
which  notice  must  be  given.  A  no- 
tice by  publication  having  been  pre- 
scribed by  ordinance  is,  therefore, 
sufficient. 

Chesapeake  &  O.  R.  Co.  v.  Mullins, 
15  Ky.  L.  R.  139,  22  S.  W.  558; 
Cassidy  v.  City  of  Bangor,  61  Me. 
434;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Shipley,  72  Md.  88,  19  Atl.  1;  Smith 
v.  Abington  Sav.  Bank,  171  Mass. 
178;  Hill  v.  Warrell,  87  Mich.  135, 
49  N.  W.  479;  State  v.  Pillsbury,  82 
Minn.  359,  85  N.  W.  175.  The  pub- 
lication of  the  estimate  of  cost  and 
various  other  matters  in  the  record 
of  the  proceedings  of  the  city  council 
is  sufficient  notice  to  all  persons 
concerned  of  the  determination  of 
the  city  council  to  make  a  specific 
local  improvement.  Marsh  v.  City 
of  Oregon,  105  Mo.  226, 16  S.  W.  896; 
Kansas  City  v.  Ward,  134  Mo.  172, 
35  S.  W.  600;  City  of  Trenton  v.  Col- 
lier, 68  Mo.  App.  483;  Longwell  v. 
Kansas  City,  69  Mo.  App.  177;  North 
Baptist  Church  v.  City  of  Orange,  54 
N.  J.  Law,  111,  22  Atl.  1004,  14  L.  R. 
A.  62.  The  publication  of  a  notice 
in  the  English  language  in  a  Ger- 
man newspaper  is  insufficient  under 


a  charter  provision  which  requires 
it  to  be  printed  in  German. 

Wilson  v.  Inhabitants  of  Trenton, 
53  N.  J.  Law,  645,  23  Atl.  278,  16  L. 
R.  A.  200.  Where  the  statute  re- 
quires notice  to  a  nonresident  to  be 
published  in  a  newspaper,  the  mail- 
ing of  a  copy  to  his  address  is  in- 
sufficient. Boyce  v.  Inhabitants  of 
Plainfield,  38  N.  J.  Law,  95.  Per- 
sonal notice  is  not  required  where  a 
charter  provides  for  constructive  no- 
tice by  publication. 

Forbes  v.  City  of  Elizabeth,  42 
N.  J.  Law,  56;  Wilson  v.  Inhabitants 
of  Trenton,  53  N.  J.  Law,  178;  North 
Baptist  Church  v.  City  of  Orange,  54 
N.  J.  Law,  111,  14  L.  R.  A.  62;  Open- 
ing of  Albany  St.,  6  Abb.  Pr.  (N.  Y.) 
273.  Under  a  statute  requiring  an 
affidavit  to  show  that  a  notice  was 
posted  in  a  conspicuous  place,  it  is 
enough  to  state  that  the  notice  was 
put  up  and  that  the  place  was  con- 
spicuous. The  affidavit  need  not 
specify  the  place.  People  v.  Village 
of  New  Rochelle,  17  App.  Div.  603, 
45  N.  Y.  Supp.  836.  A  requirement 
of  a  village  charter  for  publication 
of  a  notice  is  jurisdictional.  In  re 
Burmeister,  56  How.  Pr.  (N.  Y.) 
416;  Loomis  v.  City  of  Little  Falls, 
66  App.  Div.  299,  72  N.  Y.  Supp.  774; 
Gilmore  v.  City  of  Utica,  61  Hun, 
618,  15  N.  Y.  Supp.  274,  affirmed  in 
131  N.  Y.  26;  Beaumont  v.  City  of 
Wilkes  Barre,  142  Pa.  198. 

Davis  v.  City  of  Lynchburg,  84 
Va.  861,  6  S.  E.  230.  The  passage  of 
public  laws  and  progress  of  a  work 
of  local  improvement  is  considered 
in  this  case  sufficient  notice  to  all 
persons  interested.  Town  of  Turn- 
water  v.  Pix,  15  Wash.  324.  Where 
a  law  provides  for  constructive  serv- 


§  365 


SPECIAL  ASSESSMENTS. 


901 


such  statutes  and  a  failure  to  comply  with  their  requirements 
in  any  particular  will  invalidate  the  proceedings  depending  upon 
the  regularity  and  sufficiency  of  notice  for  their  validity.45* 


ice,  the  substitution  of  personal  serv- 
ice, therefore,  will  not  invalidate  the 
proceedings.  Jones  v.  City  of  Seat- 
tle, 19  Wash.  669. 

453  Ferine  v.  Erzgraber,  102  Cal. 
234,  36  Pac.  585.  The  inclusion  of 
surplusage  will  not  invalidate  a  no- 
tice if  otherwise  it  is  sufficient,  un- 
der statutes  of  1889,  p.  158,  §  3, 
which  requires  that  it  shall  describe 
"briefly  the  work  or  improvement 
proposed."  Washburn  v.  Lyons,  97 
Cal.  314,  32  Pac.  310;  Oakland  Bank 
of  Savings  v.  Sullivan,  107  Cal.  428, 
40  Pac.  546;  King  v.  Lamb,  117  Cal. 
401,  49  Pac.  561.  An  immaterial 
variance,  in  this  case  surplusage,  in 
the  form  of  notice  required  by  stat- 
ute will  not  .affect  its  validity. 

Anderson  v.  De  Urioste,  96  Cal. 
404;  White  v.  Harris,  116  Cal.  470. 
A  posted  notice  must  comply  with 
the  statutes  requiring  it  to  describe 
briefly  the  improvement  proposed. 
Greenwood  v.  Hassett,  128  Cal.  xviii, 
61  Pac.  173;  City  of  Ottawa  v.  Macy, 
20  111.  413. 

West  Chicago  St.  R.  Co.  v.  Peo- 
ple, 156  111.  18,  40  N.  E.  605,  follow- 
ing Schemick  v.  City  of  Chicago,  151 
111.  336.  The  omission  in  a  notice 
of  what  may  be  regarded  as  surplus- 
age will  not  affect  its  validity.  See, 
also,  as  holding  the  same,  Linck  v. 
City  of  Litchfield,  141  111.  469;  and 
Michael  v.  City  of  Mattoon,  172  111. 
394. 

Wheeler  v.  People,  153  111.  480.  A 
notice  need  not  affirmatively  state 
that  the  improvement  is  within  the 
limits  of  the  city  making  it  since  it 
will  be  presumed  that  the  city  coun- 
cil did  not  intend  to  transcend  its 


territorial  jurisdiction.  Aldis  v. 
South  Park  Com'rs,  171  111.  424. 
"Ten  days'  notice"  does  not  mean  a 
publication  for  ten  successive  days. 
Followed  by  Royal  Ins.  Co.  v.  South 
Park  Com'rs,  175  111.  491. 

Quinn  v.  James,  174  Mass.  23,  54 
N.  E.  343;  Pairchild  v.  City  of  St. 
Paul,  46  Minn.  540.  Sufficiency  of 
description  of  land  in  the  notice. 
Voght  v.  City  of  Buffalo,  133  N.  Y. 
463;  Bank  of  Columbia  v.  City  of 
Portland,  41  Or.  1,  67  Pac.  1112; 
Jones  v.  City  of  Seattle,  19  Wash. 
669. 

*s*  Paulsen  v.  City  of  Portland, 
149  U.  S.  30.  But  where  from  the 
construction  of  the  ordinance  as  a 
whole,  a  provision  for  notice  to 
property  owners  will  be  implied 
therein,  the  ordinance  will  not  be 
held  void  for  failure  to  embody  an 
express  provision.  Williams  v.  Ber- 
gin,  108  Cal.  166;  Dumars  v.  City  of 
Denver,  16  Colo.  App.  375,  65  Pac. 
580.  The  failure  to  publish,  for 
twenty  days,  a  newspaper  notice  of 
the  date,  nature  and  manner  of  a 
proposed  public  improvement  and 
the  resolution  ordering  it,  will  in- 
validate an  assessment. 

City  of  Atlanta  v.  Gabbett,  93  Ga. 
266.  A  notice  relative  to  the  con- 
struction of  a  sewer  must  state  spe- 
cifically its  size.  Hemingway  v.  City 
of  Chicago,  60  111.  324;  Armstrong 
v.  City  of  Chicago,  61  111.  352.  A 
certificate  of  publication  of  a  notice 
made  by  a  person  not  at  that  time  a 
publisher  is  insufficient  and  the  court 
acquires  no  jurisdiction  of  the  as- 
sessment proceedings. 

Brown  v.  City  of  Chicago,  62  111. 


902 


PUBLIC  REVENUES. 


365 


Special  assessment  proceedings  are  directed  as  a  rule  against  the 
property  liable,  not  an  individual,  and  less  accuracy  is  required 
and  a  more  liberal  rule  of  construction  applied  in  naming  or  de- 
termining the  owner  or  owners  of  property.  However,  if  notice 
is  required  to  be  given  the  property  owner,  this  rule  will  not 


106;  Marsh  v.  City  of  Chicago,  62 
111.  115;  Beygeh  v.  City  of  Chicago, 
65  111.  189;  McChesney  v.  People, 
148  111.  221.  An  affidavit  of  posting 
and  publishing  signed  by  three  per- 
sons one  of  whom  is  not  one  of  the 
three  commissioners  appointed  is, 
under  the  statute,  insufficient  to  give 
the  court  jurisdiction.  West  Chi- 
cago St.  R.  Co.  v.  People,  155  111.  299. 
A  notice  sent  to  the  "Chicago  W. 
Div.  R.  R.  Co."  is  not  indefinite,  the 
owner  being  "Chicago  West  Division 
Railway  Company"  and  the  fact  that 
the  envelope  was  addressed  to  "W. 
Div.  R.  R.  Co."  will  not  invalidate 
it  as  the  notice  so  addressed  might 
well  be  received  by  the  proper  cor- 
poration. 

Chandler  v.  People,  161  111.  41.  A 
certificate  of  publication  that  the  no- 
tice was  published  "five  times"  does 
not  sufficiently  show  that  the  notice 
was  published  for  "five  successive 
days"  as  required  by  statute.  See, 
also,  Evans  v.  People,  139  111.  552, 
28  N.  E.  1111,  as  holding  a  state- 
ment that  the  notice  of  special  as- 
sessment "has  been  published  five 
times"  in  a  daily  newspaper  is  in- 
sufficient under  the  same  statute, 
namely,  111.  Rev.  St.  c.  24,  art.  9,  § 
27.  Michael  v.  City  of  Mattoon,  172 
111.  394.  A  defective  affidavit  may 
be  amended  at  a  subsequent  term  of 
court  after  judgment  was  entered 
upon  due  notice.  See,  also,  the  case 
of  Hinkle  v.  City  of  Mattoon,  170 
111.  316,  holding  that  an  affidavit  of 
mailing  a  notice  may  upon  due  no- 


tice be  amended  after  judgment 
where  the  rights  of  third  parties  ac- 
quired in  good  faith  have  not  inter- 
vened. Hintze  v.  City  of  Elgin,  186 
111.  251;  Gage  v.  People,  188  111.  92; 
Holland  v.  People,  189  111.  348;  Yag- 
gy  v.  City  of  Chicago,  194  111.  88; 
Nelson  v.  City  of  Chicago,  196  111. 
390;  Dugger  v.  Hicks,  11  Ind.  App. 
374,  36  N.  E.  1085;  Grace  v.  Newton 
Board  of  Health,  135  Mass.  490; 
Leavitt  v.  Bell,  55  Neb.  57,  75  N. 
W.  524.  Where  the  statute  requires 
notice  of  a  meeting  to  be  given  by 
the  board  of  equalization,  "for  at 
least  six  days  prior  thereto,"  the 
board  is  without  jurisdiction  to  act 
where  the  notice  was  first  published 
on  the  23rd  of  the  month  and  the 
board  convened  on  the  28th. 

Poillon  v.  Borough  of  Rutherford, 
65  N.  J.  Law,  538,  47  Atl.  439. 
When  a  notice  is  served  March  24th 
and  the  hearing  set  for  April  4th, 
the  time  given  is  insufficient  under 
Public  Laws  of  1897,  p.  285,  §  58,  re- 
quiring two  weeks'  notice.  Bank  of 
Columbia  v.  City  of  Portland,  41  Or. 
1,  67  Pac.  1112.  The  filing  of  a  re- 
monstrance by  a  property  owner  will 
not  be  considered  a  waiver  of  notice. 
Buckley  v.  City  of  Tacoma,  9  Wash. 
253.  The  notice  as  published,  when 
required  by  law,  should  set  out  a  lit- 
eral copy  of  the  resolution  ordering 
the  improvement  and  give  not  only 
the  portion  of  the  street  to  be  im- 
proved but  also  the  numbers  of  the 
lots  to  be  charged  with  the  improve- 
ment. 


§   366  SPECIAL   ASSESSMENTS.  903 

be  carried  to  such  an  extent  as  to  permit  the  giving  of  a  legal 
notice  to  one  who  is  not  the  actual  owner.455 

§  366.    Result  of  a  failure  to  give  notice. 

A  failure  to  follow  the  provisions  of  the  law  in  respect  to  the 
giving  of  notice  may  result  in  either  a  material  or  immaterial 
error.  The  essential  test  of  the  efficiency  of  the  notice  is  an  an- 
swer in  the  affirmative  to  the  question  "did  the  owner  receive 
notice  of  the  pendency  of  the  proceedings  through  the  notice  as 
attempted  to  be  given?"*56  If  the  failure  or  defect  affects.no 

«5  Uhl  v.  Moorhous,  137  Ind.  445,  173  111.  617;  Klein  v.  Tuhey,  13  Ind. 

37  N.  E.  366;  Mason  v.  City  of  Des  App.    74,    40    N.    E.    144;    Beals    v. 

Moines,  108  Iowa,  658,  79  N.  W.  389,  James,  173  Mass.  591,  54  N.  E.  245; 

following     Fisher     v.     Chaffee,     96  Fairchild    v.    City    of    St.    Paul,    46 

Iowa,  15;  Chicago,  R.  I.  &  P.  R.  Co.  Minn.  540.     The  notice  is  sufficient 

v.  City  of  Ottumwa,  112  Iowa,  300,  when  published  for  more  than  the 

83    N.    W.    1074,    51   L.   R.   A.    763;  length  of  time  required  by  statute. 

Beals   v.   James,   173   Mass.   591,   54  McGavock  v.    City   of  Omaha,   40 

N.   E.    245;    Morange  v.   Mix,  44  N.  Neb.   64,  58  N.  W.  543;    Central  R. 

Y.    315.      Proceedings    against    one  Co.  v.  City  of  Bayonne,  52  N.  J.  Law, 

who    at    the    time    of    their    com-  503,  20  Atl.   69;    In  re   Delaware  & 

mencement  was  the  owner  of  prop-  H.  Canal  Co.,  8  N.  Y.  Supp.  352.     A 

erty  will  be  held  valid  against  such  notice    relating    to    street    improve- 

property  though  its  ownership  sub-  ments  under  laws  of  N.  Y.  1871,  c. 

sequently  changed.  536,  p.  1134,  "inviting  parties  inter- 

Chamberlin  v.  Gleason,  163  N.  Y.  ested  therein"  to  present  objections, 

214.     A   notice  to  a   life  tenant   of  is  insufficient  if  no  time  is   stated 

property  is  not  notice  to  the  remain-  when  this  can  be  done.     In  re  Lex- 

dermen  and  they  will  not  be  bound,  ington  Ave.,  63  Hun,  629,  17  N.  Y. 

Hawthorne  v.  City  of  East  Portland,  Supp.    870,    872.    A    notice    giving 

13   Or.   271.     It   is  not   sufficient  to  longer  time  than  that   required  by 

describe  the  owner  of  land  as  "the  statute  is  sufficient.    Lyth  v.  City  of 

estate  of  one  deceased."  Buffalo,  48  Hun   (N.  Y.)    175;    Peo- 

456  Paulsen    v.    City    of   Portland,  pie  v.  Coler,  31  Misc.  211,  65  N.  Y. 

149  U.  S.  30;  Schmidt  v.  Market  St.  Supp.  44.     Sufficiency  of  description 

&  W.  G.  R.  Co.,  90  Cal.  37,  27  Pac.  in  the  notice  involved. 

61;   Schmidt  v.  Market  St.  &  W.  G.  City  of  Canton  v.  Wagner,  54  Ohio 

R.  Co.,  90  Cal.  37;  Hewes  v.  Village  St.    329.     Under    Rev.    St.    Ohio,    § 

of  Winnetka,  60  111.  App.  654;   Hin-  2304,  a  notice   is  sufficient   defining 

kle  v.  City  of  Mattoon,  170  111.  316.  the  nature  of  the  improvement  and 

The  voluntary  appearance  of  a  land-  stating    that    the    expenses    will    be 

owner  is  held  in  this  case  as  curing  charged  to  abutting  land.     Ladd  v. 

the  failure  to  give  the  statutory  no-  Spencer,  23  Or.  193,  31  Pac.  474.     A 

tice.     Meadowcroft  v.  Kochersperger,  notice  of  a  proposed  improvement  of 

170  111.  356;  Craft  v.  Kochersperger,  a  street  "by  building  to  the  estab- 


904 


PUBLIC  REVENUES. 


§  366 


substantial  rights457  or  if  through  some  other  provision  of  the 
statute  the  right  is  given  to  the  property  owner  to  test  all  of  the 
questions  which  may  have  been  raised  at  the  time  of  the  service 
of  notice,458  then  such  defect  or  failure  will  be  regarded  as  an 


lished  grade  an  elevated  roadway, 
thirty-six  feet  wide,  and  elevated 
sidewalks  twelve  feet  wide,"  is  not 
A  sufficient  compliance  with  the  char- 
ter provision  which  requires  that 
the  notice  "must  specify  with  con- 
venient certainty  the  street  or  part 
of  street  proposed  to  be  improved 
*  *  *  and  the  kind  of  improve- 
ment to  he  made." 

Clinton  v.  City  of  Portland,  26 
Or.  410.  A  notice  sufficiently  de- 
scribes an  improvement  when  by. its 
own  language  and  a  reference  to 
plans  and  specifications  on  file  in  the 
public  office,  the  character  and  loca- 
tion of  the  improvement  is  definite 
and  certain.  Beaumont  v.  City  of 
Wilkes-Barre,  142  Pa.  198;  Arm- 
strong v.  Ogden  City,  9  Utah,  255; 
Felker  v.  City  of  New  Whatcom,  16 
Wash.  178.  A  notice  is  sufficient 
which  supplements  itself  by  refer- 
ring to  diagrams  and  estimates 
previously  filed  with  the  city  clerk 
as  required  by  law.  Hennessy  T. 
Douglas  County,  99  Wis.  129,  74  N. 
W.  983. 

457  Walker  v.  District  of  Columbia, 
6  Mackey  (D.  C.)  352.  The  notice 
in  this  case  held  to  affect  only  the 
question  of  delinquent  interest;  a 
failure  to  give  such  could  not,  there- 
fore, invalidate  the  proceedings  ex- 
cept as  relating  to  the  matter  of 
interest. 

Illinois  Cent.  R.  Co.  v.  City  of  De- 
catur,  126  111.  92,  18  N.  E.  315,  1  L. 
R,  A.  613;  Haley  v.  City  of  Alton,  152 
111.  113.  Irregularities  in  the  giving 
of  notice  may  be  waived  by  a  gen- 
eral appearance  of  the  property  own- 


er. Clements  v.  Lee,  114  Ind.  397, 
16  N.  E.  799.  The  sufficiency  of  a 
notice  cannot  be  questioned  if  the 
work  has  been  done  under  color  of 
proceedings  and  without  objection  by 
the  landowners.  Gilmore  v.  Hentig, 
33  Kan.  156;  Fehler  v.  Gosnell,  99 
Ky.  380,  35  S.  W.  1125.  After  the 
work  has  been  performed  under  a 
contract  for  the  improvement  of  a 
street,  it  is  too  late  under  §  2834, 
Rev.  St.,  to  hold  that  the  notice  giv- 
en by  the  board  of  public  works  was 
insufficient. 

Shimmons  v.  City  of  Saginaw,  104 
Mich.  511,  62  N.  W.  725;  Townsend 
v.  City  of  Manistee,  88  Mich.  408. 
Defective  proceedings  resulting  from 
a  failure  to  give  notice  may  be  cured 
by  the  making  of  a  new  assessment 
and  the  proceedings  relating  to  it. 
Gilmore  v.  City  of  Utica,  61  Hun, 
618,  15  N.  Y.  Supp.  274,  affirmed  in 
131  N.  Y.  26.  Loomis  v.  City  of  Lit- 
tle Falls,  66  App.  Div.  299,  72  N.  Y. 
Supp.  774;  Village  of  Tonawanda  v. 
Price,  171  N.  Y.  415,  reversing  57 
App.  Div.  635,  68  N.  Y.  Supp.  1150. 
A  notice  is  not  insufficient  which 
designated  "the  usual"  place  of  meet- 
ing of  the  village  trustees  instead  of 
describing  more  accurately  and  spe- 
cifically such  place.  The  court  said 
that  in  a  country  village  persons 
would  not  be  misled  by  the  general 
character  of  such  a  notice. 

*58  Goodrich  v.  City  of  Detroit,  184 
U.  S.  432,  affirming  judgment  in  123 
Mich.  559;  Oskamp  v.  Lewis,  103 
Fed.  906;  Law  v.  Johnston,  118  Ind. 
261,  20  N.  E.  745,  following  Garvin 
v.  Daussman,  114  Ind.  429,  16  N.  E. 


§  366 


SPECIAL   ASSESSMENTS. 


905 


immaterial  one  and,  therefore,  not  making  illegal  the  assessment 
proceedings ;  but  if  otherwise  a  failure  to  give  proper  notice  will  be 
fatal.489  The  giving  of  notice  required  affecting  a  certain  stage 
only  of  the  proceedings  will  not  cure  a  failure  to  give  the  re- 
quired notice  concerning  the  proceedings  in  other  respects  or  at 
some  other  time.460  On  the  other  hand,  a  failure  to  give  the  no- 


826;  Spaulding  v.  Baxter,  25  Ind. 
App.  485,  58  N.  E.  551;  Nichols  v. 
City  of  Salem,  80  Mass.  (14  Gray) 
490.  A  failure  to  give  notice  to  one 
landowner  is  an  error  not  available 
to  other  landowners  upon  whom  no- 
tice has  been  properly  served.  Wil- 
son v.  State,  42  N.  J.  Law,  612. 

459  Bensinger  v.  District  of  Co- 
lumbia, 6  Mackey  (D.  C.)  285;  Har- 
rison v.  City  of  Chicago,  163  111.  129, 
44  N.  E.  395;  Chandler  v.  People, 
161  111.  41;  Kiphart  v.  Pittsburgh, 
C.,  C.  &  St.  L.  R.  Co.,  7  Ind.  App. 
122,  34  N.  E.  375;  Grace  v.  Newton 
Board  of  Health,  135  Mass.  490; 
Mills  v.  City  of  Detroit,  95  Mich. 
422,  54  N.  W.  897;  Security  Sav. 
Trust  Co.  r.  Donnell,  1  Mo.  App. 
Rep'r  571;  Leonard  v.  Sparks,  63 
Mo.  App.  585;  Hegeman  v.  City 
of  Passaic,  51  N.  J.  Law,  109; 
Bacon  v.  City  of  Elizabeth,  51 
N.  J.  Law,  246;  In  re  Ford,  6 
Lans.  (N.  Y.)  92;  In  re  Delaware 
&  H.  Canal  Co.,  8  N.  Y.  Supp.  352; 
People  v.  Village  of  New  Rochelle, 
83  Hun,  185,  31  N.  Y.  Supp.  592; 
Remsen  v.  Wheeler,  105  N.  Y.  573; 
Baltimore  &  O.  &  C.  R.  Co.  v.  Wag- 
ner, 43  Ohio  St.  75;  Hawthorne  v. 
City  of  East  Portland,  13  Or.  271; 
Hershberger  v.  City  of  Pittsburgh, 
115  Pa.  78,  8  Atl.  381.  The  provision 
for  notice  is  considered  mandatory. 

Wilvert  v.  Sunbury  Borough,  81% 
Pa.  57;  Buchanan  v.  Borough  of 
Beaver,  171  Pa.  567;  Violett  v.  City 
of  Alexandria,  92  Va.  561,  23  S.  E. 
909,  31  L.  R.  A.  382.  Provisions  of 


a  city  charter  authorizing  assess- 
ments to  be  made  on  property  for 
local  improvements  without  requir- 
ing notice  or  hearing  to  the  owners 
are  unconstitutional  and  void  as  de- 
priving a  person  of  his  property 
without  due  process  of  law.  Wilson 
v.  City  of  Seattle,  2  Wash.  St.  543. 

46o  People  v.  Gilon,  121  N.  Y.  551, 
24  N.  E.  944,  reversing  People  v. 
Asten,  47  Hun,  639.  "The  duties 
which  the  board  was  required  to  per- 
form were  essentially  judicial  in 
their  nature  and  character.  The 
power  and  duty  to  determine  the 
amount  of  loss  or  injury  which  the 
owner  of  real  estate  had  sustained 
involved  the  exercise  of  judgment 
and  discretion  and  the  hearing  of 
such  proof  as  the  property  owners 
had  to  offer  and  as  was  pertinent  to 
the  injury.  These  judicial  functions 
could  not  be  properly  performed  in 
contemplation  of  law  without  giving 
to  the  parties  interested  in  the  de- 
termination some  notice  of  the  time 
and  place  of  the  hearing,  and  an 
opportunity  to  be  heard.  In  the 
amended  return  to  the  writ,  the  as- 
sessors state  that  they  gave  notice 
by  advertising  in  the  official  journal 
on  the  29th  day  of  February,  1876, 
and  again  on  the  30th  day  of  April, 
1876,  in  the  following  words:  'Pub- 
lic notice  is  hereby  given  to  the 
owner  or  owners,  occupant  or  occu- 
pants of  all  houses  and  lots,  im- 
proved or  unimproved  lands  affected 
thereby,  that  the  following  assess- 
ments have  been  completed,  and  are 


906 


PUBLIC  REVENUES. 


3b6 


tice  required  by  law  of  the  pendency  of  the  proceedings  at  a 
particular  time  will  not  affect  the  validity  of  the  proceedings  in 


lodged  in  the  office  of  the  board  of 
assessors  for  examination  by  the 
persons  interested.  *  *  *  All 
persons  whose  interests  are  affected 
by  the  above  named  assessments, 
and  who  are  opposed  to  the  same, 
or  either  of  them,  are  requested  to 
present  their  objections  in  writing 
to  the  board  of  assessors  at  their 
office  within  thirty  days  from  the 
date  of  this  notice.'  This  paper  was 
signed  by  the  four  persons  compos- 
ing the  board  of  assessors,  and  dated 
the  29th  day  of  February,  1876. 
*  *  * 

"It  is  quite  plain  that  this  notice 
applied  to  the  assessment  upon  prop- 
erty within  a  certain  district  for 
benefits  in  consequence  of  the  im- 
provement, and  the  expenses  of  mak- 
ing the  same,  and  not  to  the  dam- 
ages or  loss  sustained.  All  persons 
who  were  interested  in  assessments 
imposed  for  benefits,  and  who  de- 
sired to  have  the  amount  imposed  re- 
duced, were  notified  to  file  objections 
in  writing  within  a  specified  time; 
but  there  was  no  suggestion  that 
property  owners  who  had  sustained 
loss  or  injury  by  the  grading  and 
regulating  of  the  street  could  pre- 
sent proofs  or  be  heard.  The  notice 
called  for  objections  to  an  assess- 
ment made,  not  for  proofs  or  argu- 
ment in  support  of  a  claim  for  dam- 
ages. We  are  informed  by  the  re- 
turn that  the  board  determined  the 
amount  of  damages  that  the  real 
estate  represented  by  the  relator 
sustained,  when  he  was  not  present, 
at  $5,000  and  that  on  the  29th  day  of 
March,  1876,  they  filed  the  certificate 
of  the  award  with  the  comptroller  of 
the  city  of  New  York  and  that  they 


filed  the  assessment  for  expenses  and 
benefits  with  the  board  of  revision 
and  correction  of  assessments  on  the 
5th  day  of  May,  1876.  It  appears 
further  that  the  certificate  awarding 
$5,000  damages  to  the  relator  signed 
by  the  assessors  bears  date  March 
27th,  1876,  and  consequently  what- 
ever proceedings  the  board  of  asses- 
sors took  for  the  purpose  of  deter- 
mining the  amount  of  the  relator's 
loss  were  prior  to  that  date.  There 
were  two  distinct  and  separate  pro- 
ceedings before  the  board,  the  re- 
sult of  which  is  expressed  in  two 
papers,  namely,  the  certificate  of 
award  as  to  the  damages  and  the 
assessment  list  as  to  the  expenses 
and  benefits.  Notice  was  given  of  the 
latter  by  the  publication  of  the  ad- 
vertisement above  set  forth;  but  no 
notice  whatever  was  given  of  the 
former,  unless  the  conversations 
had  between  the  counsel  for  the  rela- 
tor and  the  members  of  the  board  is 
to  be  treated  as  such,  and  we  think 
it  is  not.  The  notice  published, 
cannot,  as  already  observed,  be 
treated  as  covering  the  relator's 
claim  for  damages  or  as  affording 
him  an  opportunity  to  be  heard  on 
that  subject;  and,  even  if  it  could, 
the  relator  was  not  given  the  thirty 
days  designated  in  the  notice  to  pre- 
sent his  case,  as  the  award  waa 
completed  as  early  as  March  27th 
and  filed  March  29th.  It  follows  that 
the  board  in  making  the  award,  fail- 
ed to  observe  an  essential  require- 
ment in  all  judicial  proceedings, 
namely,  notice  to  the  party  interest- 
ed in  the  determination,  and  an 
opportunity  to  him  to  be  heard,  and 
for  that  reason  no  regular  or  legal 


§  367 


SPECIAL  ASSESSMENTS. 


907 


other  respects  or  at  other  stages  as  to  which  the  proper  notice 
was  given.*61 

§  367.    Variance  of  proceedings  from  notice  given. 

In  a  preceding  section,462  the  principle  has  been  stated  that  the 
local  improvement  as  constructed  or  carried  out  and  the  assess- 
ment proceedings  as  levied  must  follow  in  detail  the  authority 
for  the  construction  and  levy.  This  same  principle  applies  where 
the  giving  of  notice  to  a  property  owner  is  an  essential  part  of 
the  proceedings ;  the  improvement  and  the  assessment  based  upon 
such  notice  must  not  vary  in  a  material  way  from  the  notice  given 
to  the  property  owners.463  This  is  the  basis  of  the  legality  of 
subsequent  proceedings.  It  is  true,  however,  that  a  variance  may 
affect  no  substantial  rights,464  or  may  be  of  such  slight  conse- 


determination  of  the  loss  or  injury 
to  the  real  estate  of  Mrs.  Smith 
has  yet  been  made.  The  act  of  1872 
imposed  this  duty  upon  the  board  of 
assessors,  without  requiring  it  to  be 
done  within  any  particular  time,  or 
by  any  particular  set  of  assessors. 
So  long  as  the  duty  remains  unper- 
formed, it  is  competent  for  the  board 
to  act;  and  the  fact  that  its  mem- 
bership has  changed  and  is  continu- 
ally changing,  does  not  affect  the 
question.  The  act  of  the  assessors 
of  1876  in  filing  with  the  comptroller 
what  purports  to  be  an  award  of 
damages,  but  in  fact  made  without 
notice  to  the  party  interested,  and 
hence  irregular  and  erroneous,  does 
not  satisfy  the  requirement  of  the 
statute."  In  re  De  Pierris,  82  N.  Y. 
243,  reversing  20  Hun,  305. 

•teiMoffitt  v.  Jordan,  127  Cal.  622; 
California  Imp.  Co.  v.  Moran,  128 
Cal.  373;  Philadelphia,  W.  &  B.  R. 
Co.  v.  Shipley,  72  Md.  88,  19  Atl.  1; 
Foley  v.  City  of  Haverhill,  144  Mass. 
352;  City  of  Duluth  v.  Miles,  73 
Minn.  509;  In  re  Pennie,  19  Abb.  N. 
C.  (N.  Y.)  117;  Northwestern  &  P. 


Hypotheek  Bank  v.  City  of  Spokane, 
18  Wash.  456. 

4«2  See  §  362. 

<63McBean  v.  Redick,  96  Cal.  191; 
Washburn  v.  Lyons,  97  Cal.  314; 
Owen  v.  City  of  Chicago,  53  111.  95; 
Stephenson  v.  Town  of  Salem,  14 
Ind.  App.  386,  42  N.  E.  44,  943; 
Malone  v.  Jersey  City,  27  N.  J. 
Law  (3  Dutch.)  536;  City  of  Sche- 
nectady  v.  Furman,  78  Hun,  87,  29  N. 
Y.  Supp.  269;  Ladd  v.  Spencer,  23 
Or.  193. 

*6*Felker  v.  City  of  New  What- 
com,  16  Wash.  178,  distinguishing 
Buckley  v.  City  of  Tacoma,  9  Wash. 
253.  In  the  syllabus  it  is  said: 
"The  validity  of  a  notice  by  a  city 
of  a  street  improvement  is  not  af- 
fected as  to  property  taxable  there- 
for by  the  fact  that  in  a  second 
publication  it  includes  an  additional 
improvement  not  affecting  such 
property,"  and  also  that  "The  as- 
sessment and  sale  of  property  by  a 
city  for  a  street  improvement  in 
the  name  of  S.  D.  Henning,  instead 
of  S.  W.  Herring,  who  was  the  true 
owner,  Is  not  such  an  inaccuracy 


908  PUBLIC  REVENUES.  § 

quence  as  to  be  termed  an  immaterial  one.405  In  this  case,  the 
principle  clearly  would  not  apply.  The  rule  of  strict  construc- 
tion will  not  be  applied  to  an  unreasonable  degree  or  to  such  an 
extent  as  to  prevent  the  construction  of  a  local  improvement 
where  none  of  the  rights  of  property  owners  have  been  jeopar- 
dized.466 

§  368.    Benefits  the  basis  of  assessment. 

In  many  jurisdictions  a  local  assessment  is  legal  because  based 
upon  a  strict  application  of  the  doctrine  of  benefits  or,  as  has 
been  said,  according  to  the  benefits  received.467  In  such  juris- 
dictions the  question  has  been  raised  that  since  the  extent  of  the 
assessment  for  the  construction  of  a  local  improvement  is  based 
upon  and  in  proportion  to  the  benefits  received  by  specific  prop- 
erty, that  therefore,  notice  must  be  given  to  the  property  owners 
prior  to  the  commencement  of  any  proceedings  looking  eventually 
to  the  making  of  the  improvement  and  the  levy  of  the  local  as- 
sessment, and  if  there  is  no  requirement  either  statutory  or 
through  ordinance  for  the  giving  of  such  notice  that  therefore, 
all  subsequent  proceedings  will  be  held  invalid;  the  claim  being 
that  the  property  owner  should  have  an  opportunity  to  contest 
the  fact,  for  such  it  is  conceded  to  be,  of  the  reception  of  a  bene- 
fit by  his  property.408  The  supreme  court  of  the  United  States  in 
a  recent  case,469  in  discussing  generally  the  right  of  the  legisla- 
ture to  arbitrarily  provide  a  method  for  apportioning  local  as- 
sessments for  the  construction  of  local  improvements,  held  that 

as  will  render  the  proceedings  in-  power  to  fix  such  a  district  for  itself 

valid."  without  any  hearing  as  to  benefits 

465  Jersey  City  v.  State,  30  N.  J.  for  the  purpose  of  assessing  upon  the 
Law,   521;   Barkley  v.  Oregon  City,  lands  within  the  district  the  cost  of 
24  Or.  515,  33  Pac.  978.  a    local,    public    improvement.     The 

466  Adams  v.  City  of  Shelbyville,  legislature  when  it  fixes  the  district 
154   Ind.  467,   49  L.  R.  A.  797,  but  itself,    is    supposed    to    have    made 
see  the  dissenting  opinion  of  Judge  proper  inquiry  and  to  have  finally 
Baker.  and  conclusively  determined  the  fact 

46T  See  §  347.  of  benefits  to  the  land  included  in 
«8  Spencer  v.  Merchant,  125  U.  S.  the  district  and  the  citizen  has  no 
345.  constitutional  right  to  any  other  or 
469  French  v.  Barber  Asphalt  Pav.  further  hearing  upon  that  question." 
Co.,  181  U.  S.  824.    "It  has  been  held  See,  also,  Paulson  v.  City  of  Port- 
by  this  court  that  the  legislature  has  land,  149  U.  S.  30. 


368 


SPECIAL  ASSESSMENTS. 


909 


this  was  within  the  discretionary  powers  of  a  legislative  body 
and  could  be  done  without  giving  the  property  owner  any  notice 
of  the  pendency  of  the  proceedings  at  any  stage,  and  an  oppor- 
tunity to  raise  the  question  of  benefits  received  by  his  prop- 
erty.470 There  will  be  found,  however,  decisions  holding  that, 
under  the  method  of  apportioning  assessments  based  upon  bene- 
fits received,  the  property  owner  is  entitled  as  a  jurisdictional 
right  to  notice  of  the  pendency  of  preliminary  proceedings  and 
the  opportunity  of  raising  this  question,471  or  the  competency  of 
a  proposed  tribunal.472 


470  Goodrich  v.  City  of  Detroit,  184 
U.    S.    432;    Arnold    v.    City    of    Ft. 
Dodge,  111  Iowa,  152,  82  N.  W.  495; 
City  of  Baltimore  v.  Ulman,  79  Md. 
469,   30   Atl.  43;    Works   v.   City   of 
Lockport,  28  Hun  (N.  Y.)  9;  Paulson 
v.  City  of  Portland,  16  Or.  450,  19 
Pac.  450,  1  L.  R.  A.  673. 

471  Scott  v.  City  of  Toledo,  36  Fed. 
385 ;  Chicago  &  N.  W.  R.  Co.  v.  Village 
of  Elmhurst,  165  111.  148.     Where  an 
owner  has  had   the  opportunity  to 
raise  the  question  of  benefits,  he  can- 
not claim   that   the   assessment   de- 
prived him  of  property  without  due 
process  of  law.     Quill  v.  City  of  In- 
dianapolis, 124  Ind.  292,  7  L.  R.  A. 
681;  Barber  Asphalt  Pav.  Co.  v.  Ed- 
gerton,  125  Ind.  455.     Property  own- 
ers are  entitled  to  notice  and  hear- 
ing under  this  question   under  act 
of    Ind.    March    8,    1889,    §§    6,    7. 
Adams  v.   City   of   Shelbyville,    154 
Ind.  467,  49  L.  R.  A.  797;  Philadel- 
phia, W.  &  B.  R.  Co.  v.  Shipley,  72 
Md.  88;  State  v.  Otis,  53  Minn.  318, 
55  N.  W.  143. 

*72  City  of  Greensboro  v.  McAdoo, 
112  N.  C.  359,  17  S.  E.  178,  reversing 
110  N.  C.  430,  14  S.  E.  974.  "In  the 
case  under  consideration  the  power 
to  order  the  improvement  of  the  side- 
walks and  to  levy  assessments 
against  the  abutting  owners  to  the 
extent  of  the  special  benefits  confer- 


red, is  not  denied;  but  It  is  insisted 
that  there  was,  as  applicable  to  the 
present  assessment,  a  specific  method 
prescribed  by  the  plaintiff's  charter, 
and  that  as  this  method  was  not  pur- 
sued in  several  material  particulars 
and  as  objection  was  taken  in  apt 
time,  the  assessment  is  invalid  and 
cannot  be  enforced  in  this  action. 
The  improvements  were  ordered  by 
the  city  in  August,  1888,  and  the 
work  was  completed  in  June,  1889. 
In  the  charter  of  the  city  granted  in 
1870,  there  Is  no  specific  provision 
authorizing  the  levying  of  special  as- 
sessments; but  in  respect  to  the  im- 
provements of  sidewalks,  it  was 
amended  by  the  act  of  1875,  c.  13,  § 
1,  which  provides  as  follows:  'The 
owner  or  owners  of  property  in  front 
of  which  the  commissioners  shall 
construct,  pave  or  repair  any  side- 
walks shall  be  chargeable  and  pay 
for  any  special  benefit  accruing  to 
such  property  by  reason  of  said  im- 
provement; and  such  property  shall 
be  bound  for  the  value  of  such  spe- 
cial benefit,  to  be  ascertained  in  the 
same  manner  as  herein  prescribed 
for  laying  off  streets,  including  the 
right  of  appeal.'  In  §  58  of  the 
charter  it  is  provided  'that  when  any 
land  or  right  of  way  is  required  by 
said  city  of  Greensborough  for  the 
purpose  of  opening  new  streets,  or 


910 


PUBLIC  REVENUES. 


369 


§  369.    Presumption  of  validity. 

When  special  assessment  proceedings  are  attacked  by  a  prop- 
erty owner  because  of  alleged  illegality,  where,  upon  the  face  of 
the  records  and  files,  they  appear  regular,  the  presumption  of 
law  exists  that  all  those  acts  required  by  statute  to  be  done  have 
been  done  and  in  the  proper  time  and  manner.473  The  burden  of 


for  other  objects  allowed  by  its 
charter,  and,  for  want  of  agreement 
as  to  the  value  thereof  the  same  can- 
not be  purchased,  *  *  *  the 
same  may  be  taken  at  a  valuation  to 
be  made  by  five  freeholders  of  the 
city  to  be  chosen  jointly  by  the  com- 
missioners and  the  party  owning  the 
land;  *  *  *  and  in  making  said 
valuation,  said  freeholders,  after  be- 
ing duly  sworn,  *  *  *  shall  take 
into  consideration  the  loss  or  dam- 
age which  may  accrue  to  the  owner 
or  owners  in  consequence  of  the  land 
or  right  of  way  being  surrendered, 
and  also  any  special  benefit  or  ad- 
vantage such  owner  may  receive,' 
etc.  Thus  it  appears  from  the  fore- 
going acts  that  a  particular  method 
was  prescribed  under  which  the  own- 
er was  entitled  to  have  the  special 
benefits  assessed  by  five  freeholders 
to  be  chosen  jointly  by  himself  and 
the  commissioners.  It  does  not  ap- 
pear from  the  record  that  the  per- 
sons who  made  the  present  assess- 
ment were  freeholders.  *  *  *  As 
there  is  nothing  which  can  be  rea- 
sonably construed  into  a  waiver  of 
these  particulars  by  the  defendant, 
it  must  follow,  that  if  the  provisions 
of  the  charter  as  amended  by  the  act 
of  1875,  are  applicable,  the  assess- 
ment is  invalid,  and  cannot  be  sus- 
tained." City  of  Raleigh  v.  Peace, 
110  N.  C.  32,  17  L.  R.  A.  330. 

4-3  Fanning  v.  Bohme,  76  Cal.  149, 
18  Pac.  158.  The  presumption  may 
arise  through  statutory  provision.  In 


this  case,  Code  of  Civ.  Proc.,  §  1963, 
subdivision  15.  Fanning  v.  Levis- 
ton  (Cal.)  21  Pac.  121;  Perine  v. 
Lewis,  128  Cal.  236,  60  Pac.  772, 
modifying  judgment  in  128  Cal.  236, 
60  Pac.  422  on  rehearing;  Escondido 
High  School  Dist.  v.  Escondido  Sem- 
inary of  University  of  Southern  Cali- 
fornia, 130  Cal.  128,  62  Pac.  401; 
Reid  v.  Clay,  134  Cal.  207,  66  Pac. 
262;  Blanchard  v.  Ladd,  135  Cal.  214, 
67  Pac.  131;  Bowman  v.  People,  137 
111.  436,  27  N.  E.  598;  White  v.  City 
of  Alton,  149  111.  626,  37  N.  E. 
96;  Linck  v.  City  of  Litchfield, 
141  111.  469;  Derby  v.  West  Chi- 
cago Park  Com'rs,  154  111.  213; 
Cramer  v.  City  of  Charleston,  176 
111.  507;  Balfe  v.  Lammers,  109 
Ind.  347,  10  N.  E.  92;  Town  of 
Woodruff  Place  v.  Raschig,  147  Ind. 
517,  46  N.  E.  990;  Lewis  v.  Albert- 
son,  23  Ind.  App.  147,  53  N.  E.  1071; 
Jenkins  v.  Stetler,  118  Ind.  275; 
Anderson  v.  Bitzer,  20  Ky.  L.  R. 
1450,  49  S.  W.  442. 

State  v.  Ramsey  County  Dist.  Ct, 
29  Minn.  62.  But  the  record  is  prima 
facie  evidence  only  of  the  facts 
therein  recited.  Scott  County  v. 
Hinds,  50  Minn.  204;  Barber  Asphalt 
Pav.  Co.  v.  Ullman,  137  Mo.  543;  Day 
v.  Borough  of  Fairview,  62  N.  J. 
Law,  621,  43  Atl.  578.  The  authority 
for  the  signature  of  a  corporate 
name  will  be  presumed.  Tifft  v.  City 
of  Buffalo,  7  N.  Y.  Supp.  633; 
Chilcott  v.  City  of  Buffalo,  7  N.  Y. 
Supp.  638;  Providence  Retreat  v. 


§  369 


SPECIAL   ASSESSMENTS. 


911 


proof  is  upon  the  one  attacking  their  correctness.47*     The  rule 
does  not  apply  where,  upon  the  face  of  the  record,  there  is  a  lack 


City  of  Buffalo,  29  App.  Div.  160, 
51  N.  Y.  Supp.  654.  In  the  ab- 
sence of  substantial  injury,  courts 
will  not  be  over-zealous  in  finding 
technical  reasons  for  declaring  as- 
sessments for  public  improvements 
invalid.  Rehearing  denied  in  31 
App.  Div.  635,  53  N.  Y.  Supp.  1113; 
Delaware  &  H.  Canal  Co.  v.  City  of 
Buffalo.  167  N.  Y.  589,  60  N.  E.  1119, 
affirming  39  App.  Div.  333,  56  N.  Y. 
Supp.  976;  Landon  v.  City  of  Syra- 
cuse, 163  N.  Y.  562,  57  N.  E.  1114, 
affirming  19  App.  Div.  41,  46  N.  Y. 
Supp.  1053,  following  Alvord  v.  City 
of  Syracuse,  163  N.  Y.  158. 

Ladd  v.  Spencer,  23  Or.  193;  Bark- 
ley  v.  Oregon  City,  24  Or.  515,  33 
Pac.  978;  Phillips  v.  City  of  Sioux 
Falls,  5  S.  D.  524,  59  N.  W.  881.  "In 
the  absence  of  any  allegation  in  the 
complaint  to  the  contrary,  the  mem- 
bers of  the  city  council,  like  all 
other  public  officers,  are  presumed  to 
have  performed  their  respective 
duties  and  to  have  complied  with  the 
requirements  of  the  statutes  and  the 
charter  by  which  the  city  of  Sioux 
Falls  was  governed  at  the  time  the 
initiative  steps  were  taken  to  pave 
and  curb  the  street  for  which  the 
special  tax  in  question  was  attempt- 
ed to  be  imposed,  and  the  assessment 
of  which,  for  reasons  not  specified  in 
the  complaint,  was  subsequently  de- 
clared and  adjudged  to  be  irregular 
and  void.  In  the  absence  of  any 
knowledge  on  the  subject,  we  must 
indulge  all  reasonable  presumptions 
in  favor  of  the  legality  and  regular- 
ity of  the  steps  taken  prior  to  such 
assessment,  by  the  city  authorities. 
Assuming  then  as  we  must  that  all 
the  required  steps  preceding  the  as- 


sessment had  been  regularly  taken, 
and  stood  unimpeached  and  unques- 
tioned, we  are  disposed  to  believe 
that  a  repetition  of  such  proceedings 
would  be  necessary  and  was  not 
contemplated  by  the  framers  of  our 
statute  authorizing  a  reassessment 
in  cases  like  the  present.  When  it 
is  conceded  that  public  improve- 
ments of  the  nature  mentioned  in 
the  complaint  and  authorized  to  be 
made  at  the  expense  of  abutting 
property  owners,  have  been  com- 
pleted, and  an  action  is  instituted  to 
defeat  the  collection  of  a  tax  reas- 
sessed therefor,  the  complaint  should 
contain  allegations  which,  if  estab- 
lished on  the  trial,  would  be  suffi- 
cient to  overcome  the  presumption  in 
favor  of  the  tax;  and,  as  the  com- 
plaint in  this  case  does  not  contain 
such  averments,  it  fails  to  state  a 
cause  of  action." 

«*McVerry  v.  Boyd,  89  Cal.  304, 
26  Pac.  885;  Hellman  v.  Shoulters, 
114  Cal.  136,  44  Pac.  915,  45  Pac. 
1057;  San  Francisco  Pav.  Co.  v. 
Bates,  134  Cal.  39,  66  Pac.  2;  McAu- 
ley  v.  City  of  Chicago,  22  111.  563; 
McManus  v.  People,  183  111.  391; 
Auditor  General  v.  Maier,  95  Mich. 
127;  Barber  Asphalt  Pav.  Co.  v.  Ull- 
man,  137  Mo.  543,  38  S.  W.  458; 
Lasbury  v.  McCague,  56  Neb.  220, 
76  N.  W.  862,  citing  Smith  v.  City  of 
Omaha,  49  Neb.  883;  Leavitt  v.  Bell, 
55  Neb.  57,  75  N.  W.  524;  Equita- 
ble Trust  Co.  v.  O'Brien,  55  Neb. 
735,  76  N.  W.  417. 

Hooker  v.  City  of  Rochester,  30 
N.  Y.  Supp.  297;  City  of  Ithaca  v. 
Babcock,  72  App.  Div.  260,  76  N.  Y. 
Supp.  49;  In  re  Voorhis,  90  N.  Y. 
668;  Beaumont  v.  City  of  Wilkes- 


912 


PUBLIC  REVENUES. 


§    370 


of  jurisdictional  facts,  or  where  the  statute  requires  the  record 
to  show  affirmatively  certain  conditions  or  circumstances  which 
do  not  appear.475 

§  370.    Estoppel  of  public  corporations. 

A  public  corporation  is  estopped  from  alleging  irregularities 
in  assessment  proceedings  for  the  purpose  of  defeating  its  obli- 
gations in  the  hands  of  bona  fide  purchasers  and  for  value.478 
Failure  or  neglect  by  a  corporate  official  to  properly  perform  an 
official  duty  will  not,  where  the  local  improvement  has  been 
fully  constructed,  invalidate  the  proceedings  and  render  the  as- 
sessment void.477 


Barre,  142  Pa.  198,  21  Atl.  888; 
Dickson  v.  City  of  Racine,  65  Wis. 
306;  Wright  v.  Forrestal,  65  Wis. 
841. 

*75Hadley  v.  Dague,  130  Cal.  207, 
62  Pac.  500.  But  where  the  law  pro- 
vides that  an  official  endorsement 
shall  be  prima  facie  evidence  of  cer- 
tain facts,  these  will  be  presumed  to 
exist  although  the  document  itself 
fails  to  affirmatively  show  them. 
Morrison  v.  City  of  Chicago,  142  111. 
660;  Derby  v.  West  Chicago  Park 
Com'rs,  154  111.  213;  Dunne  v.  West 
Chicago  Park  Com'rs,  159  111.  60; 
Maxwell  v.  City  of  Chicago,  185  111. 
18;  City  of  Logansport  v.  Blake- 
more,  17  Ind.  318;  Baker  v.  Tobin, 
40  Ind.  310;  Ball  v.  Balfe,  41  Ind. 
221;  Medland  v.  Linton,  60  Neb.  249, 
82  N.  W.  866;  Hooker  v.  City  of 
Rochester,  30  N.  Y.  Supp.  297;  In  re 
Bassford,  50  N.  Y.  509. 

476  Town  of  Darlington  v.  Atlantic 
Trust  Co.  (C.  C.  A.)  68  Fed.  849. 
"The  plaintiff  in  error  insists  that 
the  assessment  made  by  authority 
of  provisions  of  the  charter  of  the 
town  of  Darlington  on  which  the 
levy  of  taxes  for  the  year  1890  was 
based,  was  unlawful  because  not 
completed  and  filed  within  the  time 


allowed  by  said  charter,  but  we 
think  that  so  far  as  the  town  itself 
is  concerned,  the  contention  is  with- 
out merit.  Those  whose  property 
was  so  assessed,  who  were  required 
to  pay  the  taxes  and  who  were  fa- 
miliar with  the  mode  of  making 
and  returning  the  assessment,  made 
no  complaint  while  the  authorities 
of  the  town  ratified  the  assessment, 
and  confirmed  the  legality  of  the  re- 
turn by  laying  and  collecting  the 
tax.  It  would  not  be  proper  to  now 
permit  those  who  so  made  the  as- 
sessment, and  who  imposed,  collect- 
ed and  enjoyed  the  benefits  of  the 
tax  levied  by  virtue  of  the  same,  to 
question  the  validity  of  their  own 
act.  There  are  many  reasons  why 
the  town  of  Darlington  should  be 
compelled  to  respect  its  obligations 
in  respect  to  the  bonds  mentioned 
and  the  coupons  now  in  suit,  and  no 
good  cause  has  been  shown  why  it 
should  be  permitted  to  falsify  its 
own  representations,  evade  its  lia- 
bilities and  involve  others  who  have 
made  expenditures  and  investments 
on  the  faith  of  its  repeated  promises 
and  presumed  honesty." 

*77  Hadley  v.  Dague,  130  Cal.  207, 
62  Pac.  500;  Williams  v.  Bergin,  116 


§  371 


SPECIAL  ASSESSMENTS. 


913 


§  371.    Form  of  reports,  assessment  rolls  and  other  necessary 
papers. 

Certain  fundamental  conditions  suggested  in  the  preceding 
sections  must  exist  to  render  assessment  proceedings  valid,  and 
the  resulting  charge  a  lien  upon  property,  and  the  law  recog- 
nizes the  fact  that  municipal  officers  having  charge  of  one  or 
more  of  the  steps  in  the  making  of  local  improvements  and  the 
levying  of  special  assessments  may  not  be  well  educated  and  may 
lack  business  methods  and  training.  To  prevent,  therefore,  the 
disastrous  consequences  that  might  result  from  the  preparation  of 
papers  by  such  officials,  the  law  may  provide  forms  aiid  modes 
of  proceeding478  with  specific  directions  as  to  signatures,479  au- 
thentication, certification  and  recording.480  These  provisions  are 


Cal.  56;  Indiana  Bond  Co.  v.  Bruce, 
13  Ind.  App.  550,  41  N.  E.  958. 

478  Walker  v.  District  of  Columbia, 
6  Mackey  (D.  C.)  352.  Where,  by 
their  connection,  the  value  of  fig- 
ures as  dollars  and  cents  is  clear,  a 
failure  to  prefix  the  dollar  mark  is 
not  fatal.  See,  also,  as  holding  the 
same,  People  v.  Empire  Gold  &  Sil- 
ver Min.  Co.,  33  Cal.  171,  and  State 
v.  Hunt,  74  Minn.  496,  77  N.  W.  301. 

Kimball  v.  People,  160  111.  653,  fol- 
lowing Hertig  v.  People,  159  111.  237. 
The  recital  in  a  circular  publication 
of  a  delinquent  tax  list  of  special  as- 
sessments that  "I,  Frank  S.  Weigh- 
ley,  President  of  The  Mail,  a  corpo- 
ration publishing  a  newspaper 
known  as  The  Chicago  Mail,"  is  a 
sufficient  compliance  with  the  stat- 
ute which  requires  such  certificate 
to  be  signed  by  the  "printer,  pub- 
lisher, financial  officer  or  agent." 

Hull  v.  West  Chicago  Park  Com'rs, 
185  111.  150.  Where  the  statutes 
provide  that  park  commissioners 
shall  make  and  certify  the  assess- 
ment roll,  an  additional  order  of 
court  is  not  necessary.  Lord  v. 
Cooper,  19  App.  Div.  535,  46  N.  Y. 
Abb.  Corp. — 58. 


Supp.  519;  Hennessy  v.  Douglas 
County,  99  Wis.  129,  74  N.  W.  985. 

479  Bensinger  v.  District  of  Co- 
lumbia, 6  Mackey  (D.  C.)  285;  Peo- 
ple v.  Lingle,  165  111.  65.  A  report 
signed  J.  F.  Kenny  is  not  invalid 
when  the  order  appointed  as  one  of 
the  commissioners  John  F.  Kenny  it 
appearing  that  the  same  person  who 
was  appointed  acted  as  commission- 
er. Brethold  v.  Village  of  Wilmette, 
16S  111.  162.  An  error  in  spelling 
the  names  of  officers  will  not  invali- 
date an  assessment  roll  where  the 
identity  of  the  person  is  established. 
Larson  v.  City  of  Chicago,  172  111. 
298.  Where  the  law  requires  the 
joint  action  of  an  official  body,  a 
report  or  certificate  signed  by  a 
less  number  than  the  whole  is  in- 
sufficient. Yaggy  v.  City  of  Chicago, 
192  111.  104;  Thompson  v.  Honey 
Creek  Draining  Co.,  33  Ind.  268; 
Thompson  v.  City  of  Detroit,  114 
Mich.  502,  72  N.  W.  320;  Eyerman  v. 
Payne,  28  Mo.  App.  72. 

«o  Himmelman  v.  Danos,  35  Cal. 
441;  Dougherty  v.  Hitchcock,  35  Cal. 
518;  Witter  v.  Bachman,  117  Cal. 
318,  49  Pac.  202.  "The  evidence  jus- 


914 


PUBLIC  REVENUES. 


§  371 


usually  considered  mandatory  in  their  nature  and  a  failure  to 
comply  with  them  will  be  fatal  to  the  validity  of  the  proceedings 
unless  the  effect  of  such  failure  is  immaterial  and  results  in  no 
substantial  injury  to  property  rights  or  the  property  owner  is 
estopped  to  allege  insufficiency  or  irregularity.481 


tifles  the  finding  that  the  record  of 
the  return  upon  the  warrant  was  not 
signed  by  the  superintendent  of 
streets,  and  there  is  evidence  to  jus- 
tify the  finding  that,  although  the 
contract  of  Pollard  was  left  with  the 
superintendent,  it  was  not  recorded 
or  marked  filed  or  recorded  by  him, 
or  at  all.  Section  10  of  the  act  of 
1885  requires  that  the  warrant  shall 
be  returned  to  the  superintendent 
with  a  return  indorsed  thereon  by 
the  contractor,  verified  by  oath,  stat- 
ing the  nature  and  character  of  the 
demand,  etc.  'Thereupon  the  super- 
intendent of  streets  shall  record  the 
return  so  made,  in  the  margin  of  the 
record  of  the  warrant  and  assess- 
ment and  also  the  original  contract 
referred  to  therein,  if  it  has  not  al- 
ready been  recorded,  at  full  length  in 
a  book  to  be  kept  for  that  purpose  in 
his  office  and  shall  sign  the  record.' 
The  indorsement  upon  the  return  is 
as  follows:  'Returned  this  15th  day 
of  July,  1893,  and  return  recorded. 
Supt.  of  Public  Streets.'  The  tran- 
script nowhere  shows  that  the  con- 
tract was  recorded,  although  defend- 
ants introduced  and  read  from  the 
minutes  of  the  council  what  appears 
to  be  the  contract  between  Pollard 
and  the  street  superintendent,  which 
was  recognized  by  all  parties  as  the 
contract  and  which  was  the  basis  of 
the  claim.  If  the  decision  of  the 
case  were  to  rest  wholly  on  the  fail- 
ure of  the  plaintiff  to  show  that  the 
superintendent  failed  to  record  the 
contract,  I  should  hesitate  to  hold 
this  alone  as  fatal  to  plaintiff's  lien, 


inasmuch  as  it  appears  affirmatively 
and  by  defendant's  evidence  that  all 
parties  knew  of  the  contract  and  it 
was  in  fact  spread  at  length  upon 
the  minutes  but  the  superintendent 
of  the  streets  failed  to  sign  the  rec- 
ord of  the  return.  The  title  of  his 
office  is  there  but  the  name  of  the 
officer  is  wanting  and  there  is  the 
name  of  no  deputy  or  other  person 
acting  for  him.  Among  the  pre- 
requisites to  the  existence  of  a  valid 
right  of  action  in  any  case  is  this, 
to-wit:  That  'the  superintendent  of 
streets  shall  record  the  return 
*  *  *  and  sign  the  record.'  This 
was  not  done  and  the  omission  is 
fatal  to  plaintiff's  cause  of  action." 
asiLyon  v.  Alley,  130  U.  S.  177; 
City  &  County  of  San  Francisco  v. 
Certain  Real  Estate,  50  Cal.  188.  A 
duplicate  copy  of  an  assessment  roll 
need  not  be  prepared  with  the  same 
formality  as  the  original.  Spring 
Valley  Coal  Co.  v.  People,  157  111. 
543;  Kimball  v.  People,  160  111.  653; 
Bradford  v.  City  of  Pontiac,  165  111. 
612;  McChesney  v.  People,  171  111. 
267;  City  of  Aurora  v.  Lamar,  59 
Ind.  400;  Arnold  v.  City  of  Ft. 
Dodge,  111  Iowa,  152,  82  N.  W.  495; 
Ruling  v.  Bandera  Flag  Stone  Co., 
87  Mo.  App.  349;  Dusenbury  v.  City 
of  Newark,  25  N.  J.  Eq.  (10  C.  E. 
Green)  295;  Simmons  v.  City  of  Pas- 
saic,  55  N.  J.  Law,  485,  27  All.  909; 
Wakeman  v.  Jersey  City,  35  N.  J. 
Law,  455;  Provident  Institution  for 
Savings  v.  Jersey  City,  52  N.  J.  Law, 
490,  19  Atl.  1096;  Frevert  v.  City  of 
Bayonne,  63  N.  J.  Law,  202,  42  Atl. 


§  372 


SPECIAL  ASSESSMENTS. 


915 


§  372.    Opportunity  for  investigation  and  examination. 

That  the  property  owner  have  the  fullest  opportunity  to  de- 
tect errors  and  irregularities  for  the  purpose  of  protecting  his 
property  rights,  an  investigation  of  all  the  records  and  proceed- 
ings in  connection  with  the  construction  of  the  local  improve- 
ments and  the  making  of  special  assessments  may  be  necessary. 
The  right  to  examine  such  records  and  proceedings  exists  there- 
fore and  is  available  to  the  property  owner  independent  of  stat- 
utory provision,  although  the  latter  may  be  found.*82  This  right 


773.  'Laches,  however,  cannot  be  im- 
puted where  there  are  pending  pro- 
ceedings for  the  reassessment. 
Brewer  v.  City  of  Elizabeth,  66  N. 
J.  Law,  547,  49  Atl.  480;  People  v. 
Kelly,  33  Hun  (N.  Y.)  389;  Denise  v. 
Village  of  Fairport,  11  Misc.  199,  32 
N.  Y.  Supp.  97.  The  omission  of  an 
act  not  required  by  a  village  charter 
does  not  invalidate  a  local  assess- 
ment. Dean  v.  City  of  Paterson,  67 
N.  J.  Law,  199,  50  Atl.  620;  Mans- 
field v.  City  of  Lockport,  24  Misc.  25, 
52  N.  Y.  Supp.  571;  Sorchan  v.  City 
of  Brooklyn,  62  N.  Y.  339.  So  held 
in  case  of  the  omission  to  sign  the 
preliminary  assessment  list  by  the 
assessors.  In  re  Upson,  89  N.  Y.  67. 
The  failure  to  file  a  map  as  required 
by  N.  Y.  laws  1870,  c.  626,  §  2,  held 
to  be  a  mere  irregularity.  Harrell  v. 
Storrie  (Tex.  Civ.  App.)  47  S.  W. 
838.  The  provisions  of  a  city  char- 
ter prescribing  the  form  of  the  engi- 
neer's certificate  attached  to  a  roll 
of  ownership,  the  property  affected 
by  a  local  improvement  is  directory 
merely  and  not  mandatory. 

482  people  v.  Reilly,  38  Hun  (N. 
Y.)  429;  People  v.  Cornell,  47  Barb. 
(N.  Y.)  329;  In  re  Lord,  34  Misc. 
271,  68  N.  Y.  Supp.  873.  In  re  Terry, 
68  N.  Y.  Supp.  874,  note.  In  this 
case  the  court  giving  the  true  doc- 
trine which  should  prevail  in  such 
cases  says:  "I  am  not  satisfied  that 


this  application  is  made  for  a  legiti- 
mate purpose.  Under  section  fifty 
of  the  consolidation  act,  a  tax  payer 
has  the  undoubted  right  to  inspect 
books,  but  it  must  be  under  such 
proper  rules  and  regulations  as  the 
commissioners  of  taxes  may  impose. 
The  notice  of  motion  in  this  case 
seems  to  contemplate  a  right  to  rove 
over  all  the  books  in  the  department 
of  taxes  and  assessments  for  a  gen- 
eral purpose  of  curiosity  and  with- 
out any  definite  object  in  view,  un- 
less it  may  be  to  find  out  facts 
which  would  enable  an  attorney  to 
apply  to  persons  assessed  to  retain 
him  as  a  lawyer  to  set  aside  or  re- 
duce their  assessments.  Proper  and 
reasonable  rules  and  regulations  for 
the  inspection  of  books  or  the  pro- 
curement of  information  from  de- 
partments of  the  city  government 
must  be  made,  otherwise  it  would 
be  impossible  to  carry  on  business 
in  them;  and  I  think  the  commis- 
sioner of  taxes  who  refused  the  ap- 
plication of  the  petitioner,  was  per- 
fectly right  in  doing  so,  as  there 
was  no  special  designation  of  any 
book  or  books  the  applicant  desired 
to  see,  nor  any  purpose  stated  other 
than  to  examine  generally  the  books 
of  the  department  for  the  two  years 
mentioned  in  the  notice  of  motion. 
What  particular  tax  or  assessment 
the  applicant  had  in  mind  is  not 


916 


PUBLIC  REVENUES. 


of  examination  is  granted  liberally,  and,  where  it  is  given  by 
law,  the  statute  is  never  strictly  construed.  Records  of  public 
proceedings,  public  files  and  papers  should  be  always  open  for 
the  inspection,  under  reasonable  restrictions  and  at  reasonable 
hours,  of  those  whose  rights  may  be  affected  or  protected  by 
them. 

§  373.    The  right  of  correction  and  review. 

The  right  of  review  or  appeal  does  not  belong  as  an  absolute 
one  to  the  property  owner;483  he  is  protected  in  his  property 
rights  by  federal  and  state  constitutions,  but  it  is  possible  that 
steps  in  special  assessment  proceedings  may  not,  where  notice 
is  given  to  the  owner  of  their  pendency,  affect  his  rights  to 
such  an  extent  or  in  such  a  manner  as  to  bring  him  within  pro- 
tecting clauses.484  The  question  of  the  necessity  for  and  man- 


stated;  and  if  he  wished  simply  to 
find  names  and  amounts  of  assess- 
ments on  which  to  base  proceedings 
and  to  stir  up  strife  and  to  find  mat- 
ters of  controversy  from  which  he 
could  make  a  fee,  the  motion,  of 
course,  could  not  prevail." 

483  Hart  v.  West  Chicago  Park 
Com'rs,  186  111.  464;  Graham  v.  City 
of  Chicago,  187  111.  411;  Hughes  v. 
Parker,  148  Ind.  692;  People  v.  My- 
ers, 65  Hun,  14,  19  N.  Y.  Supp.  723; 
In  re  Munn,  165  N.  Y.  149;  Nottage 
v.  City  of  Portland,  35  Or.  539. 

«4  Davidson  v.  City  of  New  Or- 
leans, 96  U.  S.  97;  Hagar  v.  Re- 
clamation Dist.  No.  108,  111  U.  S. 
708;  Gillette  v.  City  of  Denver,.  21 
Fed.  822.  "Now,  in  this  case,  the 
tax  is  levied  by  the  area;  no  ques- 
tion of  value,  no  matter  of  judg- 
ment,— a  mere  mathematical  calcu- 
lation; and  of  what  earthly  profit 
could  it  be  to  a  tax  payer  to  have 
notice  of  that  calculation?  He  can 
make  it  himself.  He  cannot  correct 
by  testimony  the  judgment  of  any- 
body; it  is  as  exact  and  settled  as 


anything  can  be.  In  the  proceedings 
to  assess  this  tax  and  to  do  the  work 
there  are  three  steps:  First,  there 
is  the  making  of  the  contract  for 
the  building  of  the  sewer;  second, 
there  is  the  building  of  the  sewer; 
the  performing  of  the  work;  and 
third,  the  mere  mathematical  calcu- 
lation,— the  apportionment  of  the 
cost;  as  to  the  latter,  no  notice  can 
be  required  because  notice  would  be 
of  no  avail;  as  to  the  first,  the  stat- 
ute provides  that  the  city  council 
may  not  act  except  upon  the  petition 
of  a  majority  of  the  property  holders 
or  a  recommendation  of  the  board  of 
health;  it  acts  only  by  ordinance; 
the  contract  can  be  let  only  on  ad- 
vertisement. Every  citizen  is  bound 
to  take  notice  of  the  ordinances  of 
the  city;  so  that  anterior  to  the 
making  of  the  contract  he  has  all 
the  notice  which  can  be  required; 
and  the  statute  also  provides  in  ref- 
erence to  the  doing  of  the  work,  that 
while  the  work  is  proceeding,  on  the 
complaint  of  any  citizen,  or  tax  pay- 
er that  any  public  work  is  being 


§  373 


SPECIAL  ASSESSMENTS. 


917 


ner  of  making  the  improvement  is  held  to  be  a  legislative  one 
and  an  appeal  or  the  right  of  review  does  not  exist  from  affirm- 
ative action  in  these  respects  by  a  legislative  body.485  The  man- 
ner of  assessment  and  basis  of  apportioning  the  cost  of  the  im- 
provement are  also  considered  legislative  questions  and  in  the 
determination  of  which  according  to  benefits  received  or  the 
frontage  rule,  the  court  will  not  interfere.486  Neither  can  the 
power  of  the  municipality  to  contract  for  the  construction  of  a 
local  improvement  be  raised  on  an  appeal  from  a  special  assess- 
ment tax.487 


done  contrary  to  contract,  or  the 
work  or  material  used  is  imperfect 
or  different  from  what  was  stipu- 
lated to  be  furnished  or  done,  the 
council  shall  examine  into  the  com- 
plaint, may  appoint  three  commis- 
sioners, etc.,  so  that  in  reference  to 
the  making  of  the  contract,  the  per- 
forming of  the  contract,  there  is  pro- 
vision for  notice;  and  as  to  the 
mere  apportionment  of  the  tax,  it  is 
one  of  those  things  as  to  which  in 
the  nature  of  things  no  notice  can 
be  required  because  no  notice  would 
be  of  value."  Brown  v.  Drain,  112 
Fed.  582. 

485  Beals  v.  Inhabitants  of  Brook- 
line,  174  Mass.  1,  54  N.  E.  339;  Har- 
per  v.  City  of  Grand  Rapids,  105 
Mich.  551,  63  N.  W.  517;  Davies  v. 
City  of  Saginaw,  87  Mich.  439;  Pow- 
ers v.  City  of  Grand  Rapids,  98  Mich. 
393;  City  of  Duluth  v.  Dibblee,  62 
Minn.  18,  63  N.  W.  1117;  Warren  v. 
Barber  Asphalt  Pav.  Co.,  115  Mo. 
572,  22  S.  W.  490;  In  re  Sackett, 
Douglas  &  De  Graw  Streets,  74  N. 
Y.  95;  Mason  v.  City  of  Sioux  Falls, 
2  S.  D.  640,  51  N.  W.  770.  But  the 
power  of  local  improvement  cannot 
be  carried  on  in  a  different  manner 
from  that  authorized  by  resolution 
after  the  time  for  appeal  from  or 
review  of  such  resolution  by  prop- 


erty owners  has  passed.     See,  also, 
§§  341,  342. 

486  District  of  Columbia  v.  Burg- 
dorf,  6  App.  D.  C.  465;  Pike  v.  City 
of  Chicago,  155  111.  656;  In  re  Coun- 
ty Comers  of  Hampshire,  143  Mass. 
424,  9   N.  E.   756;   Weed  v.  City  of 
Boston,  172  Mass.  28,  51  N.  E.  204,  42 
L.  R.  A.  642;  Sweet  v.  West  Chicago 
Park  Com'rs,  177  111.  492;  Middaugh 
v.  City  of  Chicago,  187  111.  230;  Da- 
vis v.  City  of  Newark,  54  N.  J.  Law, 
144,  23  Atl.  276;   Schneider  v.  City 
of  Rochester,  33  App.  Div.  458,  53  N. 
Y.   Supp.  931;    In  re  Sackett,  Doug- 
las &  De  Graw  Streets,  74  N.  Y.  95. 
The  validity  of  the  assessment  is  not 
affected  by  the  fact  that  on  specific 
lots  it  is  greater  than  their  tax  val- 
uation.    City   of  Raleigh   v.   Peace, 
110  N.  C.  32,  17  L.  R.  A.  330;  Tee- 
garden  v.   City   of  Racine,   56  Wis. 
545.     See,  also,   authorities  cited   § 
337,  supra. 

487  Hellenkamp  v.   City  of  Lafay- 
ette, 30  Ind.  192.    "It  is  provided  by 
section  69  of  the  act  'for  the  incor- 
poration of  cities'  in  force  when  this 
contract   was   made,   that  upon  ap- 
peal  'no  question   of   fact   shall    be 
tried  which  may  arise  prior  to  the 
making  of  the  contract  for  the  said 
improvement,    under    the    order    of 
council     *     *     *     and  in  case  the 


918 


PUBLIC  REVENUES. 


§  374 


§  374.    Parties  to  appeal  proceedings. 

Special  assessment  proceedings  are  usually  considered  pro- 
ceedings in  rem  only  and  their  illegality,  therefore,  cannot  be 
questioned  by  property  owners  because  of  irregularities  which 
affect  only  the  property  of  others,488  and  ordinarily  orders  on 
appeal  cannot  be  made  affecting  the  property  of  those  not  ob- 
jecting or  appearing  in  the  appeal  proceedings  or  property  not 
involved  in  the  proceedings.489  Where  a  contractor  is  depend- 
ent upon  the  proceeds  of  a  special  assessment  for  his  compensa- 
tion, he  is  a  proper  party  defendant  in  a  proceeding  to  vacate  a 
special  assessment  levied  to  pay  the  cost  of  such  improvement.490 


court  or  jury  shall  find,  upon  trial, 
that  the  proceedings  of  said  officers, 
subsequent  to  said  order  directing 
the  work  to  be  done,  are  regular, 
that  a  contract  has  been  made,  tuat 
the  work  has  been  done,  in  whole  or 
in  part,  according  to  the  contract, 
and  that  the  estimate  has  been  prop- 
erly made  thereon,  then  said  court 
shall  direct  the  said  property  to  be 
sold,  *  *  *  Provided  that  noth- 
ing herein  shall  be  so  construed  as 
to  prevent  any  person  from  obtain- 
ing an  injunction  upon  the  proceed- 
ings prior  to  the  making  of  any 
such  improvements.'  This  prevents 
any  question  being  made  on  appeal 
involving  the  power  of  the  council 
to  make  the  contract  under  an  order 
to  that  effect." 

488Bidwell  v.  Huff,  103  Fed.  362. 
A  mortgage  creditor  has  standing  as 
a  complainant  in  a  court  of  equity. 
Gibler  v.  City  of  Mattoon,  167  111. 
18.  47  N.  E.  319;  Jones  v.  Town  of 
Lake  View,  151  111.  663;  Philadel- 
phia &  R.  Coal  &  Iron  Co.  v.  City  of 
Chicago,  158  111.  9.  The  allowance 
of  a  joint  appeal  by  numerous  ob- 
jectors to  a  special  assessment  is  a 
discretionary  matter  with  a  trial 
court. 

People  v.  Green,  158  111.  594; 
Hewes  v.  Glos,  170  111.  436.  Owner- 


ship of  property  is  essential  to  the 
right  of  appeal.  Birket  v.  City  of 
Peoria,  185  111.  369;  Thompson  v. 
City  of  Keokuk,  61  Iowa,  187;  Hamp- 
ton v.  Hamsher,  46  Hun  (N.  Y.)  144; 
Moore  v.  City  of  Albany,  98  N.  Y. 
396. 

*89McSherry  v.  Wood,  102  Cal. 
647;  Pease  v.  City  of  Chicago,  21  111. 
500;  Leman  v.  City  of  Lake  View, 
131  111.  388,  23  N.  E.  346;  Davis  v. 
City  of  Litchfield,  155  111.  384;  Title 
Guarantee  &  Trust  Co.  v.  City  of 
Chicago,  162  111.  505;  Hart  v.  West 
Chicago  Park  Com'rs,  186  111.  464; 
Berry  v.  City  of  Des  Moines,  115 
Iowa,  44,  87  N.  W.  747;  Towne  v. 
City  Council  of  Newton,  169  Mass. 
240;  Robinson  v.  City  of  St.  Paul, 
40  Minn.  228;  State  v.  Ensign,  55 
Minn.  278;  State  v.  St.  Louis  County 
Dist.  Ct.,  68  Minn.  147,  70  N.  W. 
1088;  Coward  v.  City  of  North  Plain- 
field,  63  N.  J.  Law,  61,  42  Atl.  805; 
In  re  Feust,  55  Hun,  607,  8  N.  Y. 
Supp.  420,  affirmed  in  121  N.  Y.  299, 

24  N.  E.  479;  In  re  Delancey,  52  N. 
Y.    81;    Mansfield   v.   City   of  Lock- 
port,  24  Misc.  25,  52  N.  Y.  Supp.  571; 
In  re  Rosenbaum,  119  N.  Y.  24;  Ore- 
gon &  C.  R.  Co.  v.  City  of  Portland, 

25  Or.  229,  22  L.  R.  A.  713;  City  of 
Pittsburg  v.  Maxwell,  179  Pa.  553. 

«9o  in  re   Bridgford,  65  Hun,  227, 


S  376 


SPECIAL  ASSESSMENTS. 


919 


§  375.    Review  by  the  courts. 

The  law  in  granting  the  right  may  designate  a  judicial  organ- 
ization as  the  body  to  pass  upon  the  appeal.  "When  within  its 
jurisdiction,  all  proceedings  are  governed  by  the  usual  rules  con- 
trolling the  action  of  and  proceedings  before  it.491  This  rule 
applies  to  the  weight  and  introduction  of  evidence,  appearance  of 
parties  and  trial  of  cases.492  In  proceedings  on  appeal  the  court 
is  limited  in  its  authority  to  such  questions  as  it  may  be  given 
by  law  the  right  to  pass  upon.493 

§  376.    Review  by  other  bodies. 

The  right  of  review  or  appeal  may  be  granted  to  some  other 
official  body,  generally  a  municipal  council,  instead  of  to  the  ju- 


20  N.  Y.  Supp.  281.  "We  are  also 
of  the  opinion  that  the  contractor 
whose  interests  were  to  be  affected 
by  these  proceedings  was  a  neces- 
sary and  proper  party  to  the  record. 
He  could  look  only  to  this  assess- 
ment, and  the  collection  of  this  tax, 
for  his  compensation,  and  when  it 
was  proposed  to  cut  off  his  source 
of  supply  he  had  a  right  to  be  in 
court  to  defend  his  interest."  In  re 
Alexander,  65  Hun  (N.  Y.)  622. 

491  Brown  v.  City  of  Grand  Rapids, 
83  Mich.  101;  City  of  Philadelphia  v. 
Unknown    Owner,    148    Pa.    536,    24 
Atl.  65. 

492  Bernstein   v.    Downs,    112   Cal. 
197,  44  Pac.  557;   Gilbert  v.  City  of 
New  Haven,  39  Conn.  467;  Bowditch 
v.  City  of  New  Haven,  40  Conn.  503. 
An  appellant  must  particularize  the 
ground  upon  which  he  asks  relief. 
Goodwillie    v.    City    of    Lake    View 
(111.)  21  N.  E.  817;  Green  v.  City  of 
Springfield,    130    111.    515,    22    N.    E. 
602;   Boyd  v.  Murphy,  127  Ind.  174, 
25  N.  E.  702;    Chytraus  v.  City  of 
Chicago,  160  111.  18;    Ewart  v.  Vil- 
lage   of   Western    Springs,    180    111. 
318;  Mock  v.  City  of  Muncie  (Ind.) 


32  N.  E.  718;  Moberry  v.  City  of  Jef- 
fersonville,  38  Ind.  198;  Sims  v. 
Hines,  121  Ind.  534;  Wilkins  v.  City 
of  Detroit,  46  Mich.  120.  See  as  to 
the  admissibility  of  specific  evi- 
dence: Triplet  v.  City  of  New  York, 
53  Hun,  36,  6  N.  Y.  Supp.  48. 

493Lasbury  v.  McCague,  56  Neb. 
220;  Blume  v.  Bowes,  65  N.  J.  Law, 
470,  47  Atl.  487.  The  same  rule  also 
holds  where  the  city  council  passes 
upon  questions  on  appeal.  In  re 
Southworth,  5  Hun  (N.  Y.)  55. 
Same  rule  applies  to  municipal  coun- 
cil as  an  appellate  body.  In  re 
Chesebrough,  63  Hun,  631,  17  N.  Y. 
Supp.  791;  In  re  Grand  Boulevard  & 
Concourse,  33  App.  Div.  210,  53  N.  Y, 
Supp.  331;  In  re  New  York  Cent.  & 
H.  R.  R.  Co.,  163  N.  Y.  604,  57  N.  E. 
1119,  affirming  49  App.  Div.  281,  63 
N.  Y.  Supp.  52;  In  re  Hermance,  71 
N.  Y.  481;  In  re  Lange,  85  N.  Y.  307; 
Walsh  v.  Sims,  65  Ohio  St.  211,  62 
N.  E.  120;  Lucas'  Petition,  128  Pa. 
214,  18  Atl.  338;  Lewis  v.  City  of 
Seattle,  28  Wash.  639,  69  Pac.  393; 
Kersten  v.  City  of  Milwaukee,  106 
Wis.  200,  81  N.  W.  948,  1103,  48  U 
R.  A.  851. 


920 


PUBLIC  REVENUES. 


§  377 


dicial  organization  suggested  in  the  preceding  section;  in  this 
case,  the  proceedings  are  governed  either  by  the  special  provi- 
sions of  law  granting  the  appeal  or  right  of  review  or  by  the 
common  usage  and  custom  and  rules  of  procedure  before  such 
bodies.49* 

J  377.    The  right  of  appeal  or  review;  manner  and  time  of  ex- 
ercise. 

As  the  right  of  appeal  and  review  is  a  statutory  one,  the  pro- 
visions requiring  or  providing  for  its  exercise  within  a  certain 
specified  time,495  or  in  a  designated  manner,496  are  generally  con- 


494  Williams  v.  Viselich,  121  Gal. 
314,  53  Pac.  807.  On  appeal,  notice 
of  time  and  place  of  hearing  need 
not  mention  the  names  of  persons 
affected.  Dyer  v.  Scalmanini,  69 
Cal.  637;  Frick  v.  Morford,  87  Gal. 
576;  Partridge  v.  Lucas,  99  Cal.  519; 
Belser  v.  Hoffschneider,  104  Cal. 
455;  De  Koven  v.  City  of  Lake 
View,  131  111.  541;  City  of  Louisville 
v.  Selvage,  21  Ky.  L.  R.  349,  51  S. 
W.  447;  Board  of  Liquidation  of 
City  Debt  v.  Thoman,  42  La,  Ann. 
605;  Griswold  v.  Union  School 
Dist.  of  Bay  City,  24  Mich.  262; 
White  v.  City  of  Saginaw,  67 
Mich.  33,  34  N.  W.  255;  Aldridge 
v.  Essex  Public  Road  Board  (N.  J. 
Law)  17  Atl.  776;  Norris  v.  City 
of  Elizabeth,  51  N.  J.  Law,  485,  18 
Atl.  302;  Protestant  Foster  Home 
v.  City  of  Newark,  52  N.  J.  Law, 
138,  18  Atl.  572;  Skinkle  v.  Essex 
Public  Road  Board,  47  N.  J.  Law,  93; 
Butler  v.  Town  of  Montclair,  67  N. 
J.  Law,  426,  51  Atl.  494;  Hoffman  v. 
City  of  New  York,  58  Hun,  611, 
13  N.  Y.  Supp.  137;  People  v.  City 
of  Buffalo,  147  N.  Y.  675,  42  N.  E. 
344;  In  re  Beechwood  Ave.  Sewer, 
179  Pa.  494;  Lewis  v.  City  of  Seat- 
tle, 28  Wash.  639,  69  Pac.  393; 
Kersten  v.  City  of  Milwaukee,  106 


Wis.  200,  81  N.  W.  948,  1103;  48 
L.  R.  A.  851.  The  property  owner 
may  have  a  choice  of  remedies;  Mil- 
waukee city  charter,  subc.  7,  §  11 
(Laws  1874)  is  not  exclusive. 

495  warren  v.  Riddell,  106  Cal. 
352;  State  v.  Norton,  63  Minn.  497. 
The  syllabus  written  by  the  court 
follows:  "Gen.  St.  1894,  §  1337,  au- 
thorizes certain  municipal  corpora- 
tions to  levy  assessments  for  local 
improvements  upon  the  property 
fronting  upon  such  improvements, 
or  upon  the  property  to  be  bene- 
fited by  such  improvements  without 
regard  to  cash  valuation.  Pursuant 
to  this  power,  the  municipal  au- 
thorities of  the  village  of  West  Du- 
luth  levied  an  assessment  against 
certain  property  therein  situate,  for 
the  purpose  of  making  improve- 
ments and  gave  due  notice  of  the 
time  and  place  when  such  assess- 
ment would  be  confirmed  and  also 
that  it  was  proposed  to  issue  bonds, 
chargeable  to  the  real  estate  to  be 
benefited  by  such  improvement  to 
pay  such  assessment  and  that  the 
property  owners  affected  by  such  as- 
sessment might  then  and  there  ap- 
pear and  file  their  objections  there- 
to. None  of  them  filed  objections 
nor  did  they  appeal  from  such  con- 


377 


SPECIAL  ASSESSMENTS. 


921 


sidered  mandatory  and  if  the  right  is  not  so  exercised  by  the 
property  owner  it  is  forfeited  or  lost.497     The  time  for  appeal 


firmation  to  the  district  court  as 
provided  by  law.  Gen.  St.  1894,  § 
1343  reads  in  part,  as  follows:  'At 
the  time  and  place  mentioned  in 
such  notice,  or  at  such  time  and 
place  as  they  may  adjourn  to,  said 
village  council  shall  meet  and  re- 
view and  confirm  such  assessment 
which  confirmation  shall  be  final, 
except  as  hereinafter  provided. 
And  no  omission,  informality  or  ir- 
regularity in  or  preliminary  to  the 
making  of  any  special  assessment 
for  any  local  improvement  shall, 
after  such  confirmation,  affect  the 
validity  of  such  assessment  unless 
objection  specifying  the  grounds 
thereof  shall  have  been  made  in 
writing  and  duly  filed  with  the  vil- 
lage recorder  on  or  before  the  date 
of  such  confirmation.'  Gen.  St. 
1894,  §  1346,  reads  as  follows:  'No 
action  shall  be  maintained  to  avoid 
any  of  the  special  assessments  of 
taxes  levied  pursuant  to  this  chap- 
ter after  bonds  have  been  issued 
covering  such  special  assessments, 
and  said  bonds  shall  be  conclusive 
proof  of  all  the  proceedings  on 
which  the  same  are  based.'  The 
bonds  covering  such  assessment 
were  duly  issued  and  no  action  was 
commenced  to  avoid  the  assessment. 
When  the  county  auditor  applied 
for  judgment  against  the  property 
under  Gen.  St.  1894,  c.  11,  more 
than  two  years  after  the  issuance 
of  the  bonds,  the  defendants  inter- 
posed various  objections  to  the 
validity  of  the  assessment  and  to 
the  confirmation  thereof.  Held, 
that  as  the  property  owners  had 
failed  to  interpose  their  objections 
within  the  time  allowed  by  law, 


they    were    concluded    by    the    pro- 
ceedings had  against  them." 

City  of  St.  Louis  v.  Lang,  131  Mo. 
412;  In  re  Delaware  &  H.  Canal  Co., 
129  N.  Y.  105;  Strout  v.  City  of 
Portland,  26  Or.  294;  Clinton  v.  City 
of  Portland,  26  Or.  410;  Garrison  v. 
Dougherty,  18  S.  C.  486;  Potter  v. 
Black,  15  Wash.  186,  45  Pac.  787. 

496  City  of  Montgomery  v.  Town- 
send,   84  Ala.  478;    Conklin  v.  City 
of  Keokuk,  73  Iowa,  343;    Frost  v. 
Board  of  Review  of  Oskaloosa,  113 
Iowa,  547,  85  N.  W.  770;   People  r. 
Myers,  65  Hun,  14,  19  N.  Y.  Supp. 
723;  People  v.  Feitner,  65  App.  Div. 
224,  72  N.  Y.  Supp.  641. 

497  Perine  v.  Forbush,  97  Cal.  305, 
32  Pac.  226.    Where  the  assessment 
is  invalid  on  jurisdictional  grounds, 
the  failure  of  a  property  owner  to 
appeal  will  not  validate  an  assess- 
ment.    See,   also,   Warren   v.   Chan- 
dos,     115     Cal.     382;     McSherry    v. 
Wood,  102  Cal.  647,  36  Pac.  1010. 

Manning  v.  Den,  90  Cal.  610. 
Where  the  objections  are  jurisdic- 
tional they  are  not  waived  by  a  fail- 
ure to  appeal  to  the  city  council  un- 
der act  of  California,  March  18,  1885, 
§  11.  Hornung  v.  McCarthy,  126 
Cal.  17;  Ferguson  v.  Borough  of 
Stamford,  60  Conn.  432;  Chicago  & 
E.  R.  Co.  v.  City  of  Huntington,  149 
Ind.  518,  49  N.  E.  379.  An  appeal 
is  also  ineffectual  if  made  before  the 
time  provided  by  law.  Meadow- 
croft  v.  Kochersperger,  170  111.  356; 
Alley  v.  City  of  Lebanon,  146  Ind. 
125,  44  N.  E.  1003;  Boyd  v.  Murphy, 
127  Ind.  174;  Berry  v.  City  of  Des 
Moines,  115  Iowa,  44,  87  N.  W.  747; 
Kansas  City  v.  Kimball,  60  Kan.  224, 
56  Pac.  78;  Town  of  Bellevue  v.  Pea- 


922 


PUBLIC  REVENUES. 


5  378 


when  based  upon  specific  action  commences  to  run  from  the  time 
when  such  action  is  legally  taken.498 

§  378.    Conclusiveness  of  decision. 

The  conclusiveness  of  the  decision  of  a  board  of  appeal  may 
depend  upon  the  extent  of  its  original  power  or,  again,  upon  the 
existence  of  the  right  of  appeal  or  review  as  a  statutory  grant 
or  an  original  right.  If  an  official  body  possesses  the  original 
power  to  pass  upon  the  questions  raised  by  the  appeal,  its  deci- 
sions may  be  deemed  conclusive  and  their  action  binding  upon 
the  property  owner  without  further  right  of  appeal  by  him  to 
other  and  different  bodies.499  If,  as  generally  the  case,  the  right 
of  appeal  or  review  is  a  granted  favor  to  the  property  owner, 
the  authority  granting  it  may  provide  for  an  appeal  or  the  right 
of  review  to  a  designated  official  body  without  the  further  right 
of  appeal  from  its  decisions  by  the  property  owner.500 


cock,  89  Ky.  495;  Brown  v.  City  of 
Grand  Rapids,  83  Mich.  101;  Eno 
v.  City  of  New  York,  68  N.  Y.  214. 

<98Halstead  v.  Attica,  28  Ind. 
378;  Bowditch  T.  Superintendent  of 
Streets,  168  Mass.  239;  Brown  v. 
City  of  Saginaw,  107  Mich.  643; 
Madison  County  v.  Frazier,  78  Miss. 
880,  29  So.  765;  In  re  Duffy,  133 
N.  Y.  612,  31  N.  E.  517;  Garrison  v. 
Dougherty,  18  S.  C.  486;  Belling- 
ham  Bay  Imp.  Co.  v.  City  of  New 
Whatcom,  17  Wash.  496. 

<»»  Hadley  v.  Dague,  130  Cal.  207, 
62  Pac.  500;  California  Imp.  Co.  v. 
Moran,  128  Cal.  373;  Leeds  v.  De- 
frees,  157  Ind.  392,  61  N.  E.  930; 
Brown  v.  City  of  Saginaw,  107  Mich. 
643,  65  N.  W.  601;  Central  R.  Co. 
v.  Mutchler,  41  N.  J.  Law,  96;  Mor- 
ris v.  City  of  Bayonne,  62  N.  J.  Law, 
385,  41  Atl.  924;  Patterson  v.  City 
of  New  York,  1  Paige  (N.  Y.)  114; 
Le  Roy  v.  City  of  New  York,  4 
Johns.  Ch.  (N.  Y.)  352. 

5oo  Dowling  v.  Altschul  (Cal.)  33 
Pac.  495;  Houghton's  Appeal,  42  Cal. 


35;  Jennings  v.  Le  Breton,  80  Cal. 
8;  Frick  v.  Morford,  87  Cal.  576; 
Frenna  v.  Sunnyside  Land  Co.,  124 
Cal.  437.  The  rule  will  not  apply 
to  jurisdictional  defects.  Fenwick 
Hall  Co.  v.  Town  of  Old  Saybrook, 
69  Conn.  32;  Creote  v.  City  of  Chi- 
cago, 56  111.  422;  Mead  v.  City  of  Chi- 
cago, 186  111.  54;  Mercy  Hospital  v. 
City  of  Chicago,  187  111.  400;  City 
of  Jacksonville  v.  Hamill,  178  111. 
235;  Bickerdike  v.  City  of  Chicago, 
185  111.  280. 

Middaugh  v.  City  of  Chicago,  187 
111.  230.  But  in  the  case  of  Sher- 
wood v.  City  of  Duluth,  40  Minn. 
22,  it  was  held  that  assessment  pro- 
ceedings may  be  reviewed  on  cer- 
tiorari  in  spite  of  the  charter  pro- 
vision that  an  order  confirming  a 
special  assessment  and  all  things 
contained  therein  shall  be  res  ad- 
judicata.  Graham  v.  City  of  Chi- 
cago, 187  111.  411;  Erisman  v.  Cho- 
sen Freeholders  of  Burlington  Coun- 
ty, 64  N.  J.  Law,  516,  45  Atl.  998. 
Though  act  of  March  22nd,  1895 


§  379  SPECIAL  ASSESSMENTS. 

8  379.    Review  and  correction. 


923 


The  power  of  review  and  correction  at  some  time  and  in  some 
official  body  is  essential  to  the  ends  of  justice.  In  assessment 
proceedings,  which  are  generally  complicated  in  their  calcula- 
tions and  character,  may  be  found  unintentional  errors  or  irregu- 
larities and  it  is  necessary  from  the  position  both  of  the  prop- 
erty owner  and  the  governmental  organization  that  such  should 
be  corrected.501  The  property  owner  should  not  be  deprived  of 


(Pub.  Laws,  p.  424),  provides  that 
assessments  when  confirmed  by 
the  circuit  court  shall  be  final  and 
conclusive,  yet  when  the  right  to 
impose  any  assessment  is  questioned 
this  can  be  determined  by  a  writ  of 
certiorari.  Quinn  v.  James,  174 
Mass.  23;  Brown's  Estate  v.  Town 
of  Union,  62  N.  J.  Law,  142,  40  Atl. 
632;  Hayday  v.  Ocean  City,  67  N.  J. 
Law,  155,  50  Atl.  584;  Day  v.  Bor- 
ough of  Fairview,  62  N.  J.  Law, 
621;  People  v.  Gilon,  126  N.  Y.  147, 
27  N.  E.  282,  reversing  58  Hun,  603, 
11  N.  Y.  Supp.  512;  Voght  v.  City 
of  Buffalo,  133  N.  Y.  463;  Southard 
v.  Stephens,  27  Ohio  St.  649;  In  re 
Sheridan  Ave.,  138  Pa.  264;  White 
v.  City  of  Tacoma,  20  Wash.  361. 
sol  City  of  Springfield  v.  Green, 
120  111.  269,  11  N.  E.  261;  Thomp- 
son v.  City  of  Highland  Park,  187 
111.  265;  People  v.  Chicago,  B.  &  Q. 
R.  Co.,  189  111.  397;  Craig  v.  People, 
193  111.  199.  The  right  of  correction 
exists  through  statutory  provisions, 
3  Starr  &  C.  Ann.  St.  1896,  p.  3470, 
§  191;  Ball  v.  Balfe,  41  Ind.  221; 
Becker  v.  Baltimore  &  0.  S.  W.  R. 
Co.,  17  Ind.  App.  324,  46  N.  E.  685; 
Gosnell  v.  City  of  Louisville,  20  Ky. 
L.  R.  519,  46  S.  W.  722;  City  of 
Louisville  v.  Clark,  20  Ky.  L.  R. 
1265,  49  S.  W.  18;  Gleason  v.  Bar- 
nett,  20  Ky.  L.  R.  1694,  50  S.  W. 
67;  City  of  Louisville  v.  Selvage, 
21  Ky.  L.  R.  349,  51  S.  W.  447; 


Board  of  Liquidation  of  City  Debt 
v.  Thoman,  42  La.  Ann.  605;  Mayall 
v.  City  of  St.  Paul,  30  Minn.  294; 
Armstrong  v.  City  of  St.  Paul,  30 
Minn.  299.  An  assessment  made  in 
an  unauthorized  proceeding  is  not 
conclusive  and  the  property  owner 
is  entitled  to  equitable  relief.  Kel- 
ly v.  City  of  Minneapolis,  57 
Minn.  294,  59  N.  W.  304,  26  L. 
R.  A.  92;  Mansfield  v.  City  of 
Lockport,  24  Misc.  25,  52  N.  Y. 
Supp.  571;  Stow  v.  Common  Council 
of  Kingston,  25  Misc.  580,  54  N.  Y. 
Supp.  1044;  Alvord  v.  City  of  Syra- 
cuse, 27  Misc.  392,  58  N.  Y.  Supp. 
854;  Potter  v.  Black,  15  Wash.  186. 
The  following  cases  hold  that  a 
writ  of  certiorari  is  a  proper  rem- 
edy as  warranted  by  either  charter 
or  statutory  provisions  or  general 
practice.  Foley  v.  City  of  Haver- 
hill,  144  Mass.  352,  11  N.  E.  554. 
The  remedy  of  a  tax  payer  is 
through  certiorari.  Weed  v.  City  of 
Boston,  172  Mass.  28,  51  N.  E.  204, 
42  L.  R.  A.  642.  Questions  touch- 
ing the  illegality  of  the  assessment 
are  properly  tested  by  certiorari. 
Meday  v.  City  of  Rutherford,  52  N. 
J.  Law,  499, 19  Atl.  972.  A  right  to  a 
writ  is  lost  after  the  public  improve- 
ment has  been  fully  completed.  Walls 
v.  Jersey  City,  55  N.  J.  Law,  511,  26 
Atl.  828.  Certiorari  the  proper 
remedy.  Van  Anglen  v.  City  of 
Bayonne,  56  N.  J.  Law,  463,  29  Atl. 


924 


PUBLIC  REVENUES. 


§  379a 


his  property  without  due  process  of  law;  on  the  other  hand,  the 
municipal  organization  should  not  be  impeded  in  the  legitimate 
exercise  of  a  granted  right.502 

(a)  Review  by  certiorari.  The  usual  remedy  open  to  the 
property  owner  in  the  making  of  local  assessments  by  public 
corporations  is  a  review  by  writ  of  certiorari  of  the  proceedings 
or  such  of  them  as  may  be  especially  designated  by  statute,503 


168;  WaESman  v.  Jersey  City,  35 
N.  J.  Law,  455.  The  property  own- 
er may  lose  his  right  to  a  writ  of 
certiorari  through  laches.  People 
v.  Lohnas,  54  Hun,  604,  8  N.  Y. 
Supp.  104.  Certiorari  is  the  proper 
remedy  where  the  relief  afforded  in 
an  ordinary  action  is  adequate. 
Heiser  v.  City  of  New  York,  104  N. 
Y.  68,  9  N.  E.  866.  Certiorari  the 
proper  remedy.  People  v.  City  of 
Buffalo,  86  Hun,  618,  36  N.  Y.  Supp. 
191;  Keller  v.  City  of  Mt.  Vernon, 
23  App.  Div.  46,  48  N.  Y.  Supp. 
370.  Certiorari  is  not  available 
where  the  invalidity  of  an  assess- 
ment does  not  appear  upon  its  face. 
Niver  v.  Village  of  Bath  on  the 
Hudson,  27  Misc.  605,  58  N.  Y.  Supp. 
270.  Certiorari  held  in  this  case 
not  the  proper  remedy.  People  v. 
Morgan,  65  Barb.  (N.  Y.)  473.  Cer- 
tiorari the  proper  remedy.  Wilson 
v.  City  of  Seattle,  2  Wash.  St.  543. 
In  the  absence  of  other  relief  the 
proceedings  of  the  council  can  be 
levied  on  writ  of  certiorari  by  one 
who  is  aggrieved  by  a  street  assess- 
ment. 

502  Walker  v.  District  of  Colum- 
bia, 6  Mackey  (D.  C.)  352.  The  il- 
legal portion  of  an  assessment  only 
will  be  quashed.  See,  also,  People 
v.  City  of  Buffalo,  86  Hun,  618,  36 
N.  Y.  Supp.  191;  Pardridge  v.  Vil- 
lage of  Hyde  Park,  131  111.  537,  23 
N.  E.  345. 

In  re  Feust,  121  N.  Y.  299,  24  N. 


E.  479.  In  an  appeal  on  account  of 
fraud  or  substantial  error,  the  en- 
tire assessment  will  not  be  vacated 
but  reduced  to  the  extent  that  it  is 
shown  to  be  the  result  of  the  fraud 
or  error. 

cos  state  v.  District  Ct.  of  Hen- 
nepin  County,  33  Minn.  235;  Sher- 
wood v.  City  of  Duluth,  40  Minn. 
22.  Even  where  a  statute  makes  an 
order  of  a  district  court  confirming 
an  assessment  for  local  improve- 
ments, and  the  matters  in  connec- 
tion  therewith,  res  adjudicata,  and 
provides  for  no  appeal,  yet  the  pro- 
ceedings may  be  reviewed  under 
certiorari.  Ashley  v.  City  of  New- 
ark, 25  N.  J.  Law  (1  Dutch.)  399; 
Vanderbeck  v.  Jersey  City,  29  N.  J. 
Law  (5  Dutch.)  441;  Walls  v.  Jer- 
sey City,  55  N.  J.  Law,  511;  Hey- 
wood  v.  City  of  Buffalo,  14  N.  Y. 
(4  Kern.)  534;  People  v.  Village  of 
New  Rochelle,  83  Hun,  185,  31  N.  Y. 
Supp.  592;  People  v.  Board  of  As- 
sessors, 51  Hun  (N.  Y.)  644;  Ken- 
nedy v.  City  of  Troy,  77  N.  Y.  493; 
People  v.  City  of  Buffalo,  86  Hun 
(N.  Y.)  618. 

People  v.  Gilon,  126  N.  Y.  147,  re- 
versing 58  Hun,  76,  11  N.  Y.  Supp. 
439.  Errors  of  law  in  local  assess- 
ment proceedings  alone  can  be  re- 
viewed by  certiorari.  Wilson  v. 
City  of  Seattle,  2  Wash.  St.  543; 
State  v.  Common  Council  of  Ash- 
land, 71  Wis.  502. 

But  the  following  cases  hold  that 


§  379C  SPECIAL  ASSESSMENTS.  925 

although  special  remedies  may  be  afforded  by  particular  char- 
ters, statutes  or  rules  of  practice.504 

(b)  Time  of  issuing  writ.     The  proper  issuing  of  the  writ  may 
depend  upon  statutory  or  charter  provisions  limiting  the  time 
within  which  it  can  be -granted.     A  delay  on  the  part  of  the 
property  owner  beyond  such  time  will  be  sufficient  ground  to 
deny  the  application  or  dismiss  the  writ.     The  remedy  being  a 
charter  or  statutory  one,  the  property  owner  in  order  to  avail 
himself  of  its  benefits  must  comply  strictly  with  those  provisions 
of  the  law  granting  the  relief.503 

(c)  Proceedings  to  vacate.    One  of  the  special  remedies  sug- 
gested in  a  preceding  paragraph  may  be  termed,  for  the  want 
of  a  better  term,  general  proceedings  to  vacate.     These  will  de- 
pend for  their  availability,  the  manner  of  their  exercise,  their 
efficacy,  the  time  when  they  can  be  used  and  the  jurisdiction 
of  the  tribunal,  upon  special  charter  or  statutory  provisions.    A 
more  extended  reference  to  them  in  view  of  their  diversity  and 
the  fact  of  their  continually  being  changed  is  useless.506 

a  writ  of  certiorari  is  not  the  charter  Sp.  'Laws  1874,  c.  1,  as 
proper  remedy  under  the  circum-  amended  by  Sp.  Laws  1875,  c.  1, 
stances  noted:  Whitbeck  v.  Com-  §  25.  People  v.  City  of  New  York, 
mon  Council  of  Hudson,  50  Mich.  2  Hill  (N.  Y.)  9;  People  v.  Lohnas, 
86.  The  proceedings  of  a  common  54  Hun  (N.  Y.)  604. 
council  in  ordering  streets  to  be  sos  Rentz  v.  City  of  Detroit,  48 
paved  cannot  be  reviewed  under  Mich.  544;  Wilkinson  v.  Inhabitants 
certiorari.  State  v.  District  Ct.  of  of  Trenton,  36  N.  J.  Law,  499;  Bo- 
Ramsey  County,  44  Minn.  244;  Wil-  gart  v.  City  of  Passaic,  38  N.  J.  Law, 
son  v.  City  of  Hudson,  32  N.  J.  Law,  57;  Traphagen  v.  West  Hoboken 
365.  The  office  of  a  writ  of  cer-  Tp.,  39  N.  J.  Law,  232;  Evans  v.  In- 
tiorari  is  to  correct  errors  of  law;  habitants  of  North  Bergen  Tp.,  39 
not  to  settle  disputed  facts.  People  N.  J.  Law,  456;  Wetmore  v.  City  of 
v.  Common  Council  of  Dunkirk,  38  Elizabeth,  41  N.  J.  Law,  152;  Kir- 
Hun  (N.  Y.)  7;  People  Y.  Myers,  135  patrick  v.  New  Brunswick  S.  &  S. 
N.  Y.  465.  Com'rs,  42  N.  J.  Law,  510;  Bergen 
504  Grace  v.  Newton  Board  of  County  Sav.  Bank  v.  Inhabitants  of 
Health,  135  Mass.  490;  Dousman  v.  Union  Tp.,  44  N.  J.  Law,  599;  Schult- 
City  of  St.  Paul,  22  Minn.  387.  ing  v.  City  of  Passaic,  47  N.  J. 
Writ  of  certiorari  not  allowed  where  Law,  273;  Stewart  v.  City  of  Ho- 
other  remedies  are  open  to  the  prop-  boken,  57  N.  J.  Law,  330;  Stock- 
erty  owner.  See,  also,  as  holding  ton  v.  City  of  Newark,  58  N.  J. 
the  same,  State  v.  Board  of  Public  Law,  116. 

Works,    27    Minn.    442,    construing  soe  in  re  Buhler,  32  Barb.  (N.  Y.) 

special  provisions  of  St.  Paul  City  79;   In  re  McCormack,  60  Barb.   (N. 


926 
8  380. 


PUBLIC  REVENUES. 


§  380 


What  questions  raised  on  appeal  and  review. 

Generally  all  questions  affecting  the  legality  and  regularity 
of  pending  proceedings  can  be  raised  on  the  appeal.507     The  rule, 


Y.)  128;  In  re  Arnold,  60  N.  Y.  26; 
In  re  Bridgford,  65  Hun  (N.  Y.) 
227.  A  contractor  is  a  proper  party 
in  proceedings  to  vacate  a  street 
assessment  since  he  is  dependent 
upon  it  for  his  compensation. 

In  re  Mead,  74  N.  Y.  216;  In  re 
New  York  Protestant  Episcopal  Pub- 
lic School,  75  N.  Y.  324;  In  re  Wal- 
ter, 75  N.  Y.  354.  A  mortgagee  is  a 
party  aggrieved  with  the  right  of 
moving  to  vacate  local  assessments. 
In  re  Lima,  77  N.  Y.  170.  A  pay- 
ment of  the  assessment  destroys  the 
right  to  move  for  its  vacation.  In 
re  'Lord,  78  N.  Y.  109;  In  re  Man- 
hattan Sav.  Inst.,  82  N.  Y.  142;  In 
re  Cruger,  84  N.  Y.  619.  In  proceed- 
ings to  vacate  an  assessment,  under 
Laws  of  1858,  the  objection  that  the 
assessors  acted  under  an  erroneous 
principle  in  apportioning  the  bene- 
fits and  assessments  cannot  be  rais- 
ed. Knapp  v.  City  of  Brooklyn,  97 
N.  Y.  520;  In  re  Mehrbach,  97  N.  Y. 
601.  A  payment  of  the  assessment 
while  proceedings  are  pending  to 
vacate  will  not  deprive  the  court  of 
jurisdiction  to  vacate.  In  re  Smith, 
99  N.  Y.  424. 

See,  also,  the  following  cases  deal- 
ing with  questions  of  pleading,  prac- 
tice and  proof  in  connection  with 
proceedings  to  vacate:  In  re  De- 
lancey,  52  N.  Y.  80.  A  proceeding 
to  vacate  is  limited  to  the  lands  de- 
scribed in  such  proceedings;  it  will 
not  include  all  that  may  have  been 
affected  by  the  original  assessments. 
In  re  Ingraham,  64  N.  Y.  310;  In 
re  Willett,  70  N.  Y.  490.  In  pro- 
ceedings to  vacate  on  the  ground  of 


a  prior  payment  of  the  local  assess- 
ment, no  presumption  of  such  pay- 
ment exists  arising  from  a  lapse  of 
time;  there  must  be  proof  of  actual 
payment. 

In  re  Metropolitan  Gaslight  Co., 
85  N.  Y.  526;  In  re  Leake  &  Watts 
Orphan  Home,  92  N.  Y.  116.  An 
assessment  for  a  street  improvement 
will  not  be  wholly  void  where  that 
part  which  is  based  upon  fraudulent 
charges  can  be  eliminated  and  the 
valid  portion  allowed  to  stand.  In 
re  Hughes,  93  N.  Y.  512;  In  re 
Wheelock,  121  N.  Y.  664;  People  v. 
City  of  Buffalo,  147  N.  Y.  675. 

GOT  The  following  cases  pass  upon 
the  competency  of  the  tribunal. 
Shreve  v.  Town  of  Cicero,  129  111. 
226,  21  N.  E.  815;  Pearce  v.  Village 
of  Hyde  Park,  126  111.  287;  O'Reilley 
v.  City  of  Kingston,  114  N.  Y.  439. 
New  York  statutes  providing  that 
the  judge  shall  not  sit  as  such  or 
take  any  part  in  the  decision  of  a 
cause  if  he  is  related  by  consan- 
guinity or  affinity  to  any  of  the 
members  does  not  apply  to  quasi 
judicial  officers  such  as  assessors. 

Miller  v.  Mayo,  88  Cal.  568.  The 
failure  of  a  city  supervisor  to  ap- 
prove a  contractor's  bond  is  not  a 
tenable  objection  to  the  validity 
of  the  assessment.  Holmes  v.  Vil- 
lage of  Hyde  Park,  121  111.  128,  13 
N.  E.  540.  The  question  of  title  to 
land  upon  which  a  local  improve- 
ment or  portion  of  it  is  construct- 
ed cannot  be  raised  on  an  appeal 
from  a  special  assessment.  Mason 
v.  City  of  Chicago,  48  111.  420.  A 
payment  not  under  protest  of  a  spe- 


§  380 


SPECIAL  ASSESSMENTS. 


927 


however,  does  not  apply  in  cases  where  the  law  provides  that 
certain  questions  can  be  raised  only  in  a  specific  manner  and  be- 


cial  assessment  or  under  a  misrepre- 
sentation of  the  fact  is  conclusive 
upon  the  owner.  See,  also,  Diefen- 
thaler  v.  City  of  New  York,  111  N. 
*Y.  331;  and  In  re  Hazleton,  58  Hun, 
112,  11  N.  Y.  Supp.  557.  Payment 
under  protest,  however,  does  not  de- 
prive the  property  owner  of  his 
right  to  appeal. 

Delamater  v.  City  of  Chicago,  158 
111.  575.  Objections  should  be  speci- 
fic and  full  and  where  they  are  in- 
sufficient, questions  not  coming 
within  them  by  a  reasonable  con- 
struction cannot  be  raised. 

Dickey  v.  City  of  Chicago,  164  111. 
37.  Under  objections  covering  a 
specific  tract  of  land  on  appeal, 
questions  relating  to  other  tracts 
cannot  be  raised.  People  v.  Mc- 
Wethy,  177  111.  334.  A  property 
owner  can  raise  at  any  time  the 
question  of  whether  the  assessment 
is  to  be  in  whole  or  in  part  applied 
to  the  cost  of  the  improvement  as 
authorized  by  the  ordinance. 

Hellenkamp  v.  City  of  Lafayette, 
30  Ind.  192.  Under  §  69  of  the  Ind. 
act  for  the  incorporation  of  cities, 
the  power  of  the  municipality  to 
contract,  however,  cannot  be  rais- 
ed but  merely  the  question  of  wheth- 
er the  work  has  been  done  accord- 
ing to  the  contract  and  whether  the 
assessment  has  been  properly  pro- 
portioned. Jenkins  v.  Stetler,  118 
Ind.  275.  Objections  cannot  be  urg- 
ed based  upon  questions  of  fact  aris- 
ing before  the  making  of  the  local 
improvement  contract.  McHenry  v. 
Selvage,  19  Ky.  L.  R.  473,  35  S.  W. 
645.  The  objection  to  a  method  of 
apportionment  that  it  was  based 
upon  an  erroneous  assumption  will 


not  be  sustained  where  it  does  not 
appear  that  the  objector  would  have 
had  to  pay  the  loss  if  a  different 
method  had  been  employed. 

Mansur  v.  Aroostook  County 
Com'rs,  83  Me.  614.  Where  the  stat- 
ute prescribes  a  particular  time  for 
official  action,  such  action,  if  taken 
at  a  later  time,  will  not  be  valid. 
Beals  v.  Inhabitants  of  Brookline, 
174  Mass.  1,  54  N.  E.  339.  The  bur- 
den of  proof  is  upon  the  petitioner 
attempting  to  show  his  assessment 
unjust.  State  v.  District  Ct  of  St. 
Louis  County,  61  Minn.  542.  Sec- 
tion 1341  of  the  Minn.  Gen.  St.  1894, 
is  not  repugnant  to  the  constitution- 
al rule  requiring  uniformity  of  tax- 
ation because  it  permits  an  assess- 
ment of  85  per  cent,  of  the  estimat- 
ed cost  before  it  is  completed  but 
after  the  contract  for  its  construc- 
tion is  let. 

Barber  Asphalt  Pav.  Co.  v.  Ull- 
man,  137  Mo.  543,  38  S.  W.  458.  The 
objection  that  work  was  not  done 
in  a  good  and  substantial  manner 
as  required  by  the  contract  can  only 
be  raised  when  accompanied  by  a 
tender  of  an  equitable  proportion  of 
the  special  tax.  In  re  Cullen,  53 
Hun,  534,  6  N.  Y.  Supp.  625;  In  re 
Stephens,  26  Hun  (N.  Y.)  22;  In 
re  Livingston,  121  N.  Y.  94,  24  N.  E. 
290.  The  inclusion  of  extravagant 
or  fictitious  items  in  the  cost  of  an 
improvement  amounts  to  a  fraud 
which,  under  the  N.  Y.  statutes,  en- 
titles the  property  owner  to  have 
the  assessment  vacated.  In  re  Ros- 
enbaum,  119  N.  Y.  24;  Earle  v.  City 
of  Henrietta,  91  Tex.  301,  43  S.  W. 
15.  Proof  of  a  levy  of  taxes  by  a 
city  must  be  made  through  the  or- 


928  PUBLIC  REVENUES.  §  381a 

fore  a  time  which  has  already  elapsed,508  and  it  is  also  true  that 
only  such  questions  can  be  raised  as  by  fair  construction  come 
within  objections  properly  filed.-''09  In  any  judicial  or  quasi  ju- 
dicial proceeding  in  the  absence  of  fraud  or  manifest  abuse  of 
authority,  the  official  court  or  body  of  appeal  or  review  cannot 
inquire  into  the  expediency  or  the  necessity  for  the  local  im- 
provement as  directed  by  the  proper  public  officials.  Under  the 
decisions  with  the  exceptions  noted,  the  determination  of  the 
necessity  for  a  local  improvement  in  all  respects  is  a  legislative 
question  to  be  determined  by  that  branch  or  body  to  whom  the 
power  is  legally  granted.610 

§  381.    Estoppel  of  property  owner. 

(a)  By  laches.  In  section  377  the  principle  was  stated  that  as 
the  right  of  appeal  or  review  is  a  matter  of  favor,  statutory  pro- 
visions granting  its  exercise  within  a  certain  specified  time  were 
mandatory  in  their  nature  and  upon  a  failure  of  a  property 

dinance  on  the  tax  rolls.    Oilman  v.  of  Passaic,   55   N.  J.  Law,   485,   27 

City  of  Milwaukee,  55  Wis.  328.     A  Atl.   909;   Weldon  v.  Town  of  West 

diversion      of      property      obtained  Hoboken   (N.  J.  Law)    43  Atl.  535; 

through  special  assessments  will  not  In  re  Livingston,  121  N.  Y.   94,  24 

render  such  assessments  invalid.  N.  E.  290.    A  petition  alleging  "that 

sos  Goodwillie  v.  City  of  Lake  certain  frauds  and  specific  errors 
View  (111.)  21  N.  E.  817;  Huner-  have  been  committed  in  the  pro- 
berg  v.  Village  of  Hyde  Park,  130  ceedings"  is  sufficient  in  the  absence 
111.  156,  22  N.  E.  486;  Thorn  v.  West  of  objection.  Potter  v.  City  of  New 
Chicago  Park  Com'rs,  130  111.  594,  Whatcom,  25  Wash.  207,  65  Pac. 
22  N.  E.  520;  City  of  Chicago  v.  197. 

Nicholes,  192  111.  489,  61  N.  E.  434;        "°  Speer    v.    City    of    Athens,    85 

Bradford  v.  City  of  Pontiac,  165  111.  Ga.   49,   9  L.   R.   A.   402;    Elliott  v. 

612;    People    v.    Whidden,    191    111.  City     of     Chicago,      48      111.      293; 

374,  56  L.  R.  A.  905;   Berry  v.  City  Blanchet  v.   Municipality  No.   2,  13 

of    Chicago,   192    111.    154;    Balfe   v.  La.   (O.   S.)   322;   City  of  Baltimore 

Lammers,    109    Ind.    347,    10   N.    E.  v.  Johns  Hopkins  Hospital,  56  Md. 

92.  1;   Powers  v.  City  of  Grand  Rapids, 

509  Rich   v.    City   of   Chicago,    152  98   Mich.    395;    Le   Roy   v.    City    of 

111.   18;    Gross   v.  Village   of  Gross-  New   York,    4    Johns.    Ch.    (N.    Y.) 

dale,  176  111.  572.     The  question  as  352;    In    re   Livingston,    121    N.    Y. 

to  the  validity   of  a  required   oath  94;  City  of  Raleigh  v.  Peace,  110  N. 

cannot  be  raised  on  appeal.    Auditor  C.  32,  17  L.  R.  A.  330;  King  v.  City 

General  v.  Maier,  95  Mich.  127,   54  of  Portland,  2   Or.  146;    Paulson  v. 

N.  W.  640;   Davies  v.  City  of  Sagi-  City  of  Portland,  16  Or.  450,  1  L.  R. 

naw,  87  Mich.  439;  Simmons  v.  City  A.  673;   Allen  v.  Drew,  44  Vt.  174. 


§  381b  SPECIAL  ASSESSMENTS.  929 

owner  to  do  the  acts  required  within  the  time  thus  specified,  the 
right  was  forfeited  or  lost.  The  property  owner  may,  therefore, 
be  prevented  through  the  lapse  of  time  from  exercising  his  right 
of  appeal  or  review,511  and  his  failure  to  exercise  the  right  will 
be  considered  a  waiver  by  him  of  such  objections  as  might  have 
been  raised.512 

(b)  By  course  of  action.  The  property  owner  may  also  be 
estopped  from  asserting  a  right  of  appeal  or  review  through  his 
action  or  lack  of  action.  To  permit  the  completion  of  the 

I 

311  See,  also,  authorities  cited  un-  pal  authorities.  Batty  v.  City  of 

der  §  377.  Ross  v.  City  of  Port-  Hastings,  63  Neb.  26,  88  N.  W.  139; 

land,  105  Fed.  682;  Minnesota  Stewart  v.  City  of  Hoboken,  57  N.  J. 

&  M.  Land  &  Imp.  Co.  v.  City  of  Law,  330,  31  Atl.  278;  Chilcott  v.  City 

Billings,  111  Fed.  972;  Mietzsch  v.  of  Buffalo,  7  N.  Y.  Supp.  638;  City 

Berkhout  (Cal.)  35  Pac.  321;  War-  of  Ithaca  v.  Babcock,  36  Misc.  49, 

ren  v.  Russell,  129  Cal.  381;  Van-  72  N.  Y.  Supp.  519;  In  re  Sewer  on 

dersyde  v.  People  (111.)  61  N.  E.  28th  St.,  158  Pa.  464,  distinguishing 

1050;  Goudy's  Estate  v.  People,  173  Travers'  Appeal,  152  Pa.  129;  Kuhn 

111.  107;  Lingle  v.  People,  173  111.  v.  City  of  Port  Townsend,  12  Wash. 

121;  Thomson  v.  People,  184  111.  17;  605,  29  L.  R.  A.  445;  Town  of  Tum- 

Fischback  v.  People,  191  111.  171;  water  v.  Pix,  18  Wash.  153;  City  of 

City  of  Greensburg  v.  Zoller,  28  Ind.  New  Whatcom  v.  Bellingham  Bay 

App.  126,  60  N.  E.  1007;  Gorman  v.  Imp.  Co.,  18  Wash.  181;  Heath  v. 

State,  157  Ind.  205,  60  N.  E.  1083.  McCrea,  20  Wash.  342,  55  Pac.  432; 

Keyes  v.  City  of  Neodesha,  64  Annie  Wright  Seminary  v.  City  of 

Kan.  681,  68  Pac.  625.  The  rule  Tacoma,  23  Wash.  109,  62  Pac.  444. 
will  not  apply  where  prior  to  the  512  Bowling  v.  Conniff,  103  Cal. 

construction  of  a  local  improvement  75,  36  Pac.  1034;  Fanning  v.  Levis- 

written  notice  was  served  in  the  ton,  93  Cal.  186;  City  of  Ottawa 

manner  provided  by  law  protesting  v.  Chicago  &  R.  I.  R.  Co.,  25  111. 

against  its  construction.  Sims  v.  43;  People  v.  Ryan,  156  111.  620, 

Hines,  121  Ind.  534,  overruling  Mo-  41  N.  E.  180.  The  objection  that  an 

berry  v.  City  of  Jeffersonville,  38  assessment  was  excessive  must  be 

Ind.  198,  and  cases  following  and  re-  made  before  the  application  for 

affirming.  Palmer  v.  Stumph,  29  judgment  upon  a  special  assess- 

Ind.  329,  and  cases  following.  ment.  Quick  v.  Village  of  River 

Simpson  v.  Kansas  City,  52  Kan.  Forest,  130  111.  323;  Pells  v.  People, 

88;  Tuller  v.  City  of  Detroit,  126  159  111.  580;  Walker  v.  People,  170 

Mich.  605,  85  N.  W.  1080;  Henning-  111.  410;  McManus  v.  People,  183 

sen  v.  City  of  Stillwater,  81  Minn.  111.  391;  Richcreek  v.  Moorman,  14 

215,  83  N.  W.  983;  City  of  Green-  Ind.  App.  370,  42  N.  E.  943.  Orig- 

ville  v.  Harvie,  79  Miss.  754,  31  So.  inal  waiver  of  objections  estops  the 

425;  City  of  St.  Louis  v.  Weber,  owner  from  afterwards  asserting 

140  Mo.  515,  41  S.  W.  965.  The  them.  Cleveland,  C.,  C.  &  St.  L.  R. 

laches  of  the  property  owner  may,  Co.  v.  Edward  C.  Jones  Co.,  20  Ind. 

however,  be  waived  by  the  munici-  App.  87,  50  N.  E.  319.  A  wairer 

Abb.  Corp.— 59. 


930 


PUBLIC   REVENUES. 


§  381b 


work,513  knowing  of  irregularities  or  fraud,  forfeits  his  right  as 
well  as  the  voluntary  payment  of  the  whole  or  any  part  of  his 
special  tax.514  This  rule,  however,  does  not  hold  where  the  pay- 


by  one  co-defendant  of  all  defenses 
will  not  affect  the  rights  of  the  co- 
defendants. 

BIS  Ede  v.  Knight,  93  Cal.  159; 
Powers  v.  Town  of  New  Haven,  120 
Ind.  185,  21  N.  E.  1083;  City  of 
Evansville  v.  Pfisterer,  34  Ind.  36; 
Cluggish  v.  Koons,  15  Ind.  App.  599, 

43  N.    E.    158;    City   of   Valparaiso 
r.  Parker,  148  Ind.  379,  47  N.  E.  330; 
Lewis    v.    Albertson,    23    Ind.    App. 
147,   53    N.    E.    1071;    Busenbark   v. 
Clements,   22    Ind.   App.    557,   53   N. 
E.  665.     Where  a  street  is  illegally 
opened,    the    owner    of    the    land 
through  which  it  runs  is   estopped 
to  urge  this  as  a  defense  in  an  ac- 
tion to  collect  a  special  assessment 
for  its  improvement. 

Willard  v.  Albertson,  23  Ind.  App. 
162,  53  N.  E.  1076,  54  N.  E.  446; 
Smyth  v.  State,  158  Ind.  332,  62  N. 
E.  449;  Jenkins  v.  Stetler,  118  Ind. 
275;  City  of  Muscatine  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  79  Iowa,  645, 

44  N.    W.    909;    Tuttle  v.    Polk,    92 
Iowa,  433;  Ritchie  v.  City  of  South 
Topeka,   38  Kan.    368,  16  Pac.  332; 
Towne  v.   City   Council   of  Newton, 
169  Mass.  240;  Pitzhugh  v.  Bay  City, 
109  Mich.  581,  67  N.  W.  904. 

Cass  Farm  Co.  v.  City  of  Detroit, 
124  Mich.  433,  83  N.  W.  108.  A  pro- 
vision in  a  contract  fixing  liquidated 
damages  for  delay  does  not  affect 
the  validity  of  the  assessment,  the 
penalty  having  no  relation  to  the 
assessment.  Tuller  v.  City  of  De- 
troit, 126  Mich.  605,  85  N.  W.  1080; 
Lundbom  v.  City  of  Manistee,  93 
Mich.  170;  Johnson  v.  Duer,  115 
Mo.  366,  21  S.  W.  800;  Gibson  v. 
Owens,  115  Mo.  258,  21  S.  W.  1107; 


Heman  v.  Ring,  85  Mo.  App.  231; 
Hutchinson  v.  City  of  Omaha,  52 
Neb.  345;  Redick  v.  City  of  Omaha, 
35  Neb.  125,  52  N.  W.  847;  Ryerson 
v.  City  of  Passaic,  38  N.  J.  Law, 
171;  Borton  v.  City  of  Camden,  65 
N.  J.  Law,  511,  47  Atl.  436;  Lord 
v.  City  of  Bayonne,  65  N.  J.  Law, 
686,  48  Atl.  1118,  affirming  65  N. 
J.  Law,  127,  46  Atl.  701;  Brewer 
v.  City  of  Elizabeth,  66  N.  J.  Law, 
547,  49  Atl.  480;  Conde  v.  City  of 
Schenectady,  164  N.  Y.  258,  revers- 
ing 29  App.  Div.  604,  51  N.  Y.  Supp. 
854;  People  v.  Many,  89  Hun,  138, 
35  N.  Y.  Supp.  78;  In  re  Pennie, 
45  Hun  (N.  Y.)  391.  But  a  different 
rule  applies  to  the  purchaser  of 
property  subject  to  the  tax.  Loomis 
v.  City  of  Little  Falls,  66  App.  Div. 
299,  72  N.  Y.  Supp.  774;  Wilson  v. 
City  of  Salem,  24  Or.  504,  34  Pac. 
9,  691;  Clinton  v.  City  of  Portland, 
26  Or.  410,  38  Pac.  407;  Wingate  v. 
City  of  Astoria,  39  Or.  603,  65  Pac. 
982;  Bennison  v.  City  of  Galveston, 
18  Tex.  Civ.  App.  20;  McKnight  v. 
City  of  Pittsburgh,  91  Pa.  273;  City 
of  Seattle  v.  Hill,  23  Wash.  92,  62 
Pac.  446;  State  v.  City  of  La  Crosse, 
101  Wis.  208,  77  N.  W.  167.  See  to 
the  contrary  Kerr  v.  City  of  Corsi- 
cana  (Tex.  Civ.  App.)  35  S.  W. 
694. 

514  McSherry  v.  Wood,  102  Cal. 
647,  36  Pac.  1010;  Freeport  St.  R. 
Co.  v.  City  of  Freeport,  151  111.  451; 
Seward  v.  Rheiner,  2  Kan.  App.  95, 
43  Pac.  423;  Wakeley  v.  City  of 
Omaha,  58  Neb.  245,  78  N.  W.  511. 
But  the  rule  will  not  apply  to  an 
assessment  utterly  void.  Speir  v. 
Town  of  Utrecht,  121  N.  Y.  420,  24 


§  381b  SPECIAL  ASSESSMENTS. 

merit  is  made  under  protest1"513  or  where  there  are  pending  pro- 
ceedings brought  for  the  purpose  of  testing  the  validity  in  some 
respect  of  the  special  assessment  or  its  levy.  The  property 
owner  further  is  estopped  to  allege  irregularities  for  the  purpose 
of  defeating  a  special  assessment  after  the  work  of  local  im- 
provement has  been  partially  or  wholly  completed  and  accepted 
by  the  proper  authorities51*  in  complying  either  with  the  provi- 

N.  E.  692.    The  fact  that  other  prop-  tween  a  total  want  of  jurisdiction 

erty  owners  have  paid  their  assess-  in  a  particular  case,  and   an  error 

ments  will  not  estop  those  not  pay-  in    its    exercise    in    another,    where 

ing  from   maintaining  an  action  to  power   exists,    is   apparent."     Murt- 

enjoin  the  collection  of  special   as-  land   v.   City  of  Pittsburg,   189   Pa. 

sessments.      In    re    Wood,    33    Hun  371. 

(N.   Y.)    4;    In  re  Mehrbach,  97  N.        sie  Heft  v.  Payne,  97  Cal.  108,  31 

Y.  601;   Walsh  v.  Sims,  65  Ohio  St.  Pac.  844.     The  action  to  foreclose  a 

211,  62  N.  E.  120.     The  recital  in  a  lien  for  a  street  assessment  not  be- 

deed  that  the  purchaser  assumes  the  ing  one   to   enforce   a  personal   lia- 

payment  of  all  taxes  and  penalties  bility,  the  defendant  is  not  estopped 

including   street   and   sewer   assess-  from  setting  up  that  the  work  was 

ments  does  not  estop  him  from  con-  not   completed   within   the   contract 

testing  their  legality.     See,  however,  time    although    this    objection    had 

to  the  contrary,  Markley  v.  City  of  previously  been  waived.     Diggins  v. 

Chicago,  167  111.  626.  Hartshorne,  108  Cal.  154;    Smith  v. 

sis  Miller    v.    City    of    Mobile,    47  Hazard,  110  Cal.  145;  White  v.  City 

Ala.  163;    Phelan  v.  City  &  County  of  Alton,  149  111.  626,  37  N.  E.  96; 

of   San  Francisco,  120  Cal.  1;    Tal-  Haley  v.  City  of  Alton,  152  111.  113; 

lant  v.  City  of  Burlington,  39  Iowa,  Fisher  v.  People,  157  111.  85;   Callis- 

543;  Gardner  v.  City  of  Boston,  106  ter  v.   Kochersperger,    168   111.   334; 

Mass.  549;  Pell  v.  City  of  New  York,  Dugger  v.  Hicks,  11  Ind.  App.  374; 

31    Misc.    664,    65   N.    Y.    Supp.    34.  Ross  v.  Stackhouse,  114  Ind.  200,  16 

"Where    an    illegal    assessment    is  N.  E.  501;   Robinson  v.  City  of  Val- 

levied,  and  the  property  offered  for  paraiso,  136  Ind.  616,  36  N.  E.  644; 

sale  thereunder,  and  the  owner,  by  Holloran   v.   Morman,   27   Ind.   App. 

reason  of  this  compulsion,  pays  the  309,  59  N.  E.  869;  Arnold  v.  City  of 

assessment,  such  special  legislation  Ft.  Dodge,  111  Iowa,  152,  82  N.  W. 

cannot  deprive  him  of  the  common  495;    Nevin   v.   Roach,    86   Ky.   492, 

law    remedy    to    recover    back    the  5  S.  W.  546.     Richardson  v.  Mehler, 

money   illegally  exacted   from   him.  ill  Ky.  408,  63  S.  W.  957.  The  rule 

In  such  case  he  asks  no  favor  but  clearly   applies    where   there    is    no 

demands    a    right.     *     *     *     Where  showing   that    the    defendants    were 

the   assessment   is  wholly  void,  be-  prejudiced.    Dixon  v.  City  of  Detroit, 

cause  none  could  be  legally  levied,  86  Mich.  516;  City  of  Philadelphia  v. 

the    owner    is    neither    legally    nor  Brooke,  81  Pa.  23;    Fell  v.   City  of 

equitably    bound    to    pay    anything.  Philadelphia,  81   Pa.   58;    Haisch  v. 

In    this   respect   the   distinction  be-  City  of  Seattle,  10  Wash.  435.    Prop- 


932 


PUBLIC   REVENUES. 


§   381b 


sions  of  the  law  or  the  contract  calling  for  its  construction,  and 
also  from  setting  up  other  reasons  for  the  illegality  of  the  assess- 
ment than  those  already  urged  in  prior  objections  made  at  the 
time  and  in  the  manner  required  by  law.517  He  may  also  be 
estopped  by  his  written  waivers  of  irregularities  or  agreements 
in  open  court  concerning  them.518 


erty  owners  are  not  estopped  when 
there  has  been  a  substantial  failure 
to  comply  with  the  provisions  of  the 
contract,  Wright  v.  City  ol  Tacoma, 
3  Wash.  T.  410,  19  Pac.  42. 

BIT  Pepper  v.  City  of  Philadelphia, 
114  Pa,  96.  But,  see,  to  the  con- 
trary, City  of  Bardford  v.  Fox,  171 
Pa.  343. 

sisShepard  v.  McNeil,  38  Cal.  72; 
Hewetson  v.  City  of  Chicago,  172  111. 
112;  Sheridan  v.  City  of  Chicago, 
175  111.  421.  "It  appears  that  on 
January  18,  1897,  plaintiff  in  error 
with  others,  entered  his  motion  to 
set  aside  the  order  of  confirmation 
entered  by  the  county  court,  and,  as 
abstracted,  the  following  judgment 
and  order  were  entered:  'On  Janu- 
ary 18,  1897,  an  order  was  entered 
on  behalf  of  certain  parties  stating 
that  said  parties  by  their  attorney, 
severally  consent  and  agree  in  open 
court  that  the  judgment  of  confirma- 
tion heretofore  entered  herein 
against  their  property  may  be  va- 
cated and  set  aside  and  stand  for 
naught;  that  a  trial  by  jury  may  be 
waived  and  that  said  cause  may  be 
submitted  to  the  court  for  trial  with- 
out the  intervention  of  a  jury;  and 
it  is  orderd  that  judgment  of  con- 
firmation heretofore  entered  against 
the  several  lots,  pieces  or  parcels  of 
land  hereinafter  described,  be,  and 
the  same  is  hereby  vacated  and  set 
aside.  And  the  court  being  fully  ad- 
vised in  the  premises  finds  that  the 
contract  for  the  improvement  men- 


tioned has  been  let,  and  that  there 
is  a  difference  between  the  contract 
price  or  cost  of  constructing  said 
improvement  and  the  assignment 
levied  therefor  of  not  less  than  44.6 
per  cent;  and  the  court  further  finds 
that  the  first  installment  was  in  col- 
lection this  year;  that  said  first  in- 
stallment has  either  been  paid  or 
judgment  and  order  of  sale  entered 
against  the  lands  upon  which  it  re- 
mains unpaid,  and  this  order  shall 
not  affect  said  first  installment.  It 
is  therefore  ordered  that  the  said 
assessment  be,  and  the  same  is  here- 
by, reduced  44.6  per  cent  as  to  the 
unpaid  installments  upon  the  lands 
described  below,  to-wit  (Here  fol- 
lows description  of  property  with 
amounts  of  assessment) ;  and  that 
judgment  of  confirmation  be,  and  is 
hereby,  entered  against  each  and  all 
the  lots,  blocks,  tracts  and  parcels  of 
land,  described  above  for  the  amount 
set  opposite  the  same  as  reduced.' 
The  plaintiff  in  error  by  this  mo- 
tion, appeared  in  court  and  so  far 
as  shown  by  the  record,  consented 
and  agreed  that  the  judgment  of 
confirmation  should  be  set  aside  and 
waived  a  jury  and  submitted  to  the 
court  for  trial  the  question  of  the 
confirmation  of  the  assessment  with- 
out, in  any  manner,  before  or  at  the 
time,  presenting  any  objection  to  the 
proceedings  or  to  entering  judgment 
The  plaintiff  in  error  cannot  com- 
plain of  any  defect  which  might  ex- 
ist in  these  orders,  which  were  en- 


§   382  SPECIAL  ASSESSMENTS.  933 

§  382.     The  same  subject;  propositions  negatively  stated. 

The  property  owner  on  the  other  hand  is  not  estopped  from 
testing  or  objecting  to  the  levy  and  collection  of  a  special  as- 
sessment where  he  is  given  the  right  to  make  such  objection 
irrespective  of  the  fact  that  charter  or  statutory  provisions  may 
provide  for  the  service  of  notice  upon  him  at  other  stages  of  the 
proceedings.519  Neither  does  the  doctrine  of  estoppel  apply 


tered  pursuant  to  his  request,  and 
with  his  express  consent,  for  there 
is  no  principle  of  law  more  familiar 
than  that  a  party  shall  not  be  per- 
mitted to  assign  for  error  that  which 
he  has  requested  the  court  to  do." 
Dempster  v.  City  of  Chicago,  175 
111.  278.  But  such  agreement  can 
be  enforced  by  the  proper  ow  -r. 

sis  City  Council  of  Montgomery  v. 
Birdsong,  126  Ala.  632,  28  So.  522. 
"Section  twenty-six  of  the  charter 
bestows  on  the  city  council  the  pow- 
er to  pass  ordinances  for  the  assess- 
ment and  levy  of  taxes  upon  all 
property  subject  to  taxation  by  the 
laws  of  the  state.  This  levy  and 
assessment  for  governmental  pur- 
poses, is  referred  to  in  the  charter 
and  made  a  part  thereof  as  assist- 
ing the  same  in  providing  the  same 
machinery  for  the  assessments  and 
collections  for  street  and  sidewalk 
purposes.  Said  section  twenty-six 
further  provides  that  assessments 
when  made,  'shall  be  returned  to 
the  mayor  and  by  him  laid  before 
the  city  council  and  the  mayor  shall 
cause  at  least  ten  days'  public  no- 
tice that  such  assessments  have  been 
made  and  the  time  when  the  city 
council  will  proceed  to  hear  and  de- 
termine upon  all  complaints  which 
may  be  made  against  such  assess- 
ment and  it  shall  be  their  duty  to 
correct  the  errors  and  supply  omis- 
sions and  when  the  same  have  been 


passed  upon  by  the  city  council,  the 
said  assessments  against  persons 
and  property  shall  have  the  force 
and  effect  of  judgments,'  etc.  It 
is  insisted  by  the  city,  in  that  the 
defendant  has  not  shown  that  she 
appeared  before  the  council,  'to  cor- 
rect the  errors  and  supply  omis- 
sions,' in  the  assessment  against  her 
property,  not  for  general  municipal 
taxation,  but  for  street  and  sidewalk 
improvement,  she  is  now  estopped 
to  raise  any  question  touching  the 
assessment  of  questioning  the  con- 
stitutionality of  the  law  by  which 
such  assessment  is  sought  to  be  jus- 
tified, and  that  the  finding  of  the 
city  council  is  final  and  conclusive 
on  her.  Perhaps  we  cannot  in  this 
connection  say  anything  more  help- 
ful to  a  correct  understanding  and 
determination  of  this  contention, 
than  to  quote  the  words  of  the 
learned  judge  below,  who,  in  his 
opinion  in  the  case  touching  this 
question  said:  'The  reply  to  this 
on  the  part  of  the  defendant  is,  that 
notwithstanding  the  provision  giv- 
ing assessment  by  the  city  council 
the  effect  of  a  judgment,  yet,  the 
same  charter  requires  that  the  prop- 
erty owner  be  cited  to  appear  in  this 
court,  and  clearly  recognizes  his 
right  to  show  cause  in  this  proceed- 
ing why  a  decree  should  not  be 
rendered  for  the  sale  of  his  property. 
I  see  no  way  of  escape  from  the  face 


934 


PUBLIC  REVENUEb. 


§  382 


where  there  is  a  failure  of  jurisdictional  facts,520  the  right  of 
the  municipality,  for  example,  to  construct  the  work  of  local 
improvement  in  question,  lack  of  authority  for  its  action,521 


of  this.  To  hold  here  that  those  pro- 
visions of  the  charter  which  require 
notice  in  this  court  and  an  oppor- 
tunity to  show  cause  mean  nothing, 
would  be  to  eliminate,  by  judicial 
decision,  from  the  act,  by  virtue  of 
which  alone  this  proceeding  is  be- 
ing carried  on,  its  leading  and  es- 
sential features.  Yet  such  would  be 
the  effect  of  holding  the  defendant 
to  be  estopped  by  the  assessment  of 
the  city  council.'  " 

520  San  Jose  Imp.  Co.  v.  Auzerais, 
106  Cal.  286,  39  Pac.  859;  Ferine  v. 
Lewis,  128  Cal.  236,  60  Pac.  422,  772; 
Pacific  Pav.  Co.  v.  Geary,  136  Cal.  373, 
68  Pac.  1028;  California  Imp.  Co.  v. 
Moran,128  Cal.  373;  People  v.  Eggers, 
164  111.  515;  Hull  v.  People,  170  111. 
246;  Upton  v.  People,  176  111.  632; 
Crawfordsville  Music  Hall  Ass'n  v. 
Clements,  12  Ind.  App.  464,  39  N.  E. 
540,  40  N.  E.  752,  reversing  88  N.  E. 
226;  Powers  v.  Town  of  New  Haven, 
120  Ind.  185;  Coggeshall  v.  City  of 
Des  Moines,  78  Iowa,  235,  41  N.  W. 
617,  42  N.  W.  650;  City  of  Leaven- 
worth  v.  Laing,  6  Kan.  274;  Fetter 
v.  Allen,  21  Ky.  L.  R.  1122,  54  S.  W. 
174;  Perkinson  v.  McGrath,  9  Mo. 
App.  26;  City  of  Kansas  v.  Ratekin, 
30  Mo.  App.  416;  Forbis  v.  Bradbury, 
58  Mo.  App.  506;  City  of  Springfield 
v.  Davis,  80  Mo.  App.  574;  New 
Brunswick  Rubber  Co.  v.  Commis- 
sioners of  Streets  &  Sewers,  38  N. 
J.  Law,  190;  Traphagen  v.  West  Ho- 
boken  Tp.,  39  N.  J.  Law,  232;  Id., 
40  N.  J.  Law,  193;  App  v.  Town  of 
Stockton,  61  N.  J.  Law,  520,  39  Atl. 
921;  Kirkpatrick  v.  Commissioners 
of  Streets  &  Sewers,  42  N.  J.  Law, 
510;  Meredith  v.  City  of  Perth  Am- 


boy,  63  N.  J.  Law,  520,  44  Atl.  971; 
Pardee  v.  City  of  Perth  Amboy,  57 
N.  J.  Law,  106;  Miller  v.  City  of 
Amsterdam,  149  N.  Y.  288;  City  of 
Cincinnati  v.  Manss,  54  Ohio  St.  257, 
43  N.  E.  687;  Smith  v.  Minto,  30  Or. 
351,  48  Pac.  166;  City  of  Meadville 
v.  Dickson,  129  Pa.  1;  Borough  of 
Beltzhoover  v.  Maple,  130  Pa.  335; 
City  of  Alleghany  v.  McCaffrey,  131 
Pa.  137;  Alford  v.  City  of  Dallas 
(Tex.  Civ.  App.)  35  S.  W.  816. 

Wingate  v.  City  of  Tacoma,  13 
Wash.  603,  following  Barlow  v.  City 
of  Tacoma,  12  Wash.  32,  40  Pac.  382. 
A  property  owner  who  knowing  of 
the  lack  of  jurisdiction  consents  to 
the  improvement  is  estopped  from 
questioning  the  validity  of  the  pro- 
ceedings. Tacoma  Land  Co.  v.  City 
of  Tacoma,  14  Wash.  700;  Id.,  15 
Wash.  133.  This  case  sustains  the 
rule  given  in  the  text,  but  with  the 
modification  that  if  the  property 
owner  knowing  the  assessment  to  be 
illegal  signs  a  release  of  damages 
and  petitions  the  city  to  go  on  with 
the  improvement,  he  is  estopped  aft- 
erwards to  allege  its  illegality. 

62i  Union  Pav.  &  Contracting  Co. 
v.  McGovern,  127  Cal.  638;  Keese  v. 
City  of  Denver,  10  Colo.  112;  Ritchie 
v.City  of  South  Topeka,  38  Kan.  368; 
Fox  v.  Middlesborough  Town  Co.,  9£ 
Ky.  262.  "It  seems  to  us  it  would  be 
extremely  technical  to  hold  that  the 
council  in  failing  to  designate  the 
manner  of  apportionment,  or  when 
designating  the  mode,  did  nothing 
to  mislead  the  owner  of  the  realty 
fronting  the  improvement  as  to  the 
nature  of  the  improvement,  or  the 
manner  of  his  liability,  has  released 


§382 


SPECIAL  ASSESSMENTS. 


935 


or  the  manner  of  apportionment  of  its  cost.522  The  doctrine 
also  does  not  apply  where  the  petition  for  improvement  has  been 
signed  by  the  property  owner.  He  can  avail  himself  of  the 
charter  or  statutory  right  in  spite  of  this  fact  if  there  are  irregu- 


any  lien  the  contractor  would  other- 
wise have  had  for  his  work  and 
labor,  leaving  him  altogether  rem- 
ediless, as  the  charter  forbids  the 
assertion  of  any  claim  against  the 
city,  however  erroneous  the  proceed- 
ings of  the  council  may  be.  The 
council  had  ordered  this  improve- 
ment to  be  made,  and  provided  the 
costs  should  be  apportioned  as  pro- 
vided by  the  charter  as  to  two  of  the 
streets,  following  the  provisions  of 
the  charter  as  to  Englewood  road, 
but  as  to  Nineteenth  street  provid- 
ing the  property  fronting  the  street 
should  pay  for  that  improvement. 
There  was  no  necessity  for  the  or- 
dinance designating  what  property 
was  liable  to  be  subjected  to  the  cost 
of  this  work,  for  the  charter,  of 
which  the  citizens  of  the  city  were 
required  to  take  notice,  fixed  the  lia- 
bility for  the  cost  of  this  original 
construction,  and  each  ordinance  in 
effect,  said  to  the  property  owners, 
'These  improvements  have  been  or- 
dered, and  your  liability  is  fixed  by 
the  laws  empowering  the  council 
to  have  these  improvements  made.' 
It  was  not  essential  that  the  council 
should  say  in  the  ordinance  who  was 
liable  and  the  mode  of  enforcing  the 
liability,  and,  when  undertaking  to 
do  so,  if  they  have  not  misled  the 
parties  who  are  to  be  charged  with 
the  expenditure,  they  cannot  for  such 
a  reason,  claim  exemption  from  pay- 
ment. This  court  has  held  *  *  * 
that  where  this  power  given  to  such 
bodies  is  purely  statutory,  it  must 
be  strictly  followed  in  order  to  cre- 
ate such  a  lien  as  is  asked  to  be  en- 


forced here;  and  therefore  when 
publication  Is  to  be  made,  or  notice 
given,  and  the  statute  is  not  at  least 
substantially  complied  with,  no  lien 
can  be  enforced;  and  the  question  of 
publication  raised  in  these  cases  is 
entitled  to  more  consideration  than 
any  other  presented.  The  lot  owner 
upon  whom  this  burden  is  attempted 
to  be  placed  must  have  some  notice 
of  the  intention  to  charge  him,  and 
when  publication  is  required  in  a 
newspaper  for  a  fixed  period  of  time, 
the  notice  must  be  given  in  that 
mode,  and  the  mere  fact  that  he  has 
witnessed  the  progress  of  the  work 
from  its  beginning  to  its  completion 
cannot  work  an  estoppel,  but  the 
charter,  in  this  respect,  must  be  com- 
plied with." 

622  Cowley  v.  City  of  Spokane,  99 
Fed.  840,  citing  Village  of  Norwood 
v.  Baker,  172  U.  S.  269.  See  this  lat- 
ter case  as  distinguished  in  French 
v.  Barber  Asphalt  Pav.  Co.,  181  U. 
S.  324. 

Kenny  v.  Kelly,  113  Cal.  364,  45 
Pac.  699;  Spaulding  v.  Baxter,  25 
Ind.  App.  485,  58  N.  E.  551;  City  of 
Indianapolis  v.  Holt,  155  Ind.  222; 
Grant  v.  Bartholomew,  58  Neb.  839, 
modifying  judgment  in  57  Neb.  673, 
78  N.  W.  314;  In  re  Livingston,  121 
N.  Y.  94,  24  N.  E.  290,  distinguish- 
ing In  re  McCready,  90  N.  Y.  652. 

Hutcheson  v.  Storrie,  92  Tex.  685, 
reversing  (Tex.  Civ.  App.)  48  S.  W. 
785,  45  L.  R.  A.  289;  City  of  New 
Whatcom  v.  Bellingham  Bay  Imp. 
Co.,  10  Wash.  378;  State  v.  City  of 
La  Crosse,  101  Wis.  208. 


936 


PUBLIC  REVENUES. 


§  382 


larities  sufficient  to  warrant  his  action.523  Again,  if  the  work 
is  different  in  character,  extent  or  cost  of  construction  from  that 
authorized,824  or  if  the  form  of  proceedings  in  some  respect  are 


o2»Walkins  v.  Griffith,  59  Ark. 
344;  McSherry  v.  Wood,  102  Cal. 
647;  McLauren  v.  City  of  Grand 
Forks,  6  Dak.  397,  43  N.  W.  710; 
Wakeley  v.  City  of  Omaha,  58  Neb. 
245,  78  N.  W.  511;  Batty  v.  City  of 
Hastings,  63  Neb.  26,  88  N.  W.  139; 
Birdseye  v.  Village  of  Clyde,  61  Ohio 
St.  27.  The  rule  in  this  case  applies 
only  to  that  portion  of  the  assess- 
ment regarded  as  excessive.  Wilson 
v.  City  of  Salem,  24  Or.  504;  Strout 
v.  City  of  Portland,  26  Or.  294;  City 
of  Dallas  v.  Ellison,  10  Tex.  Civ. 
App.  28,  30  S.  W.  1128;  City  of  Dal- 
las v.  Atkins  (Tex.  Civ.  App.)  32  S. 
W.  780;  Ardrey  v.  City  of  Dallas,  13 
Tex.  Civ.  App.  442,  35  S.  W.  726. 

But  see  the  following  cases  as 
holding  to  the  contrary:  City  of 
Burlington  v.  Gilbert,  31  Iowa,  356; 
Loomis  y.  City  of  Little  Falls,  66 
App.  Div.  299,  72  N.  Y.  Supp.  774; 
Conde  v.  City  of  Schenectady,  164  N. 
Y.  258;  and  In  re  Broad  St.,  165  Pa. 
475. 

524Watkins  v.  Griffith,  59  Ark. 
344,  27  S.  W.  234.  In  this  case  the 
work  petitioned  for  was  to  cost  $750. 
The  work  as  done  cost  $5,359  and 
the  council  levied  an  assessment  to 
cover  the  extra  cost.  Speaking  of 
the  point  mentioned  in  the  text  the 
court  said:  "There  is  much  plausi- 
bility in  the  argument  that  the  own- 
ers of  property  having  seen  the  im- 
provement made,  and  enjoying  its 
benefits  without  active  steps  to  pre- 
vent it  are  now  estopped  by  their 
acquiescence.  If  the  defects  were 
mere  irregularities  in  the  exercise 
of  a  power  conferred,  this  contention 
in  a  proper  case  might  be  maintain- 


ed; but  this  rule  has  no  application 
in  a  case  like  the  present,  where 
there  is  an  absolute  failure  on  the 
part  of  the  board  to  secure  the  pow- 
er to  act,  through  the  essential  pre- 
requisite— the  petition  of  the  prop- 
erty owners  for  the  improvement  to 
be  made.  *  *  *  But  independent 
of  this  proposition  of  law,  which  pre- 
cludes the  defense  of  equitable  es- 
toppel in  this  case,  we  think  the 
facts  fairly  considered,  furnished  no 
grounds  of  estoppel.  The  appellants 
were  not  silent.  On  the  other  hand 
as  soon  as  they  learned  of  the  ille- 
gal action  of  the  board  in  entering 
upon  the  changed  work  they  at  once 
filed  with  them  their  earnest  re- 
monstrance and  advised  the  board 
and  the  contractor  that  they  would 
not  be  bound  by  it  and  would  resist 
any  assessment  to  pay  ior  it.  It  will 
hardly  be  contended  that  the  public 
meeting  called  by  the  board  would 
have  any  material  effect  to  validate 
the  proceedings.  The  statute  under 
which  the  board  was  acting  has  no 
place  in  it  for  procuring  the  assent 
of  a  majority  of  property  owners  by 
the  vote  of  a  mass  meeting.  If  the 
board  was  proceeding  as  we  have 
seen,  without  legal  authority  or  pow- 
er, an  appeal  to  such  source  was  a 
vain  and  futile  thing  to  do.  *  *  * 
The  'remonstrance'  put  the  board 
and  all  persons  dealing  with  it  upon 
full  notice  that  the  property  owners 
proposed  to  stand  squarely  on  their 
legal  rights.  That  they  did  not  aft- 
erwards make  further  objection  to 
the  effort  to  impose  the  additional 
seven  per  cent  assessment  was  con- 
sistent with  their  attitude  of  de- 


§   382  SPECIAL  ASSESSMENTS.  937 

indefinite    and   uncertain   in    some   particular   affecting   specific 
property,625  the  property  owner  can  make  objections  based  upon 

dared  opposition.  They  could  not  actual  knowledge  of  the  character  of 
prevent  the  progress  of  the  work  the  work  done  under  the  contract, 
upon  the  public  streets.  They  had  they  will  be  estopped  to  allege  the 
made  their  protest  in  distinct  and  variation  in  the  construction  of  the 
definite  terms  and  could  only  await  improvement  from  the  contract  pro- 
developments;  and  when  the  time  visions.  City  of  Philadelphia  v. 
came  as  indicated  in  their  protest,  Meighan,  159  Pa.  495. 
they  are  found  making  very  earnest  523  Keifer  v.  City  of  Bridgeport, 
and  continued  opposition  all  along  68  Conn.  401.  In  this  case  the  as- 
the  line  to  the  imposition  of  any  sessor  reported  the  plaintiff's  dam- 
assessment  beyond  the  one  per  cent  ages  and  benefits  as  equal.  No 
which  had  been,  as  conceded,  legal-  amount  was  mentioned  specifically 
ly  made  *  *  *  and  its  payment  and  the  plaintiff  did  not  appeal  from 
furnished  no  ground  for  equitable  the  award.  The  claim  is  made  that 
estoppel  as  to  the  seven  per  cent  as-  by  the  failure  to  appeal  he  is  as- 
sessment, which  all  parties  had  ex-  topped  to  question  the  assessment, 
press  notice  they  would  resist.  The  The  court  said:  "But  further  the 
power  of  taxation,  especially  for  lo-  defendant  contends  that  the  plain- 
cal  improvements,  is  the  highest  tiff  is  estopped  'because  in  law,  a 
attribute  of  sovereignty.  It  involves  judgment  has  been  rendered  him  by 
the  right  to  take  the  private  prop-  the  assessors  of  benefits  and  dam- 
erty  of  the  citizen  without  his  con-  ages  and  been  accepted  by  him.'  It 
sent,  and  without  any  other  consid-  is  said:  'The  assessment  of  benefits 
eration  than  that  of  the  public  good,  and  damages  to  the  plaintiff  is  a 
Such  statutes  must  be  construed  judgment  holding  him  to  have  suf- 
with  the  greatest  strictness,  and  he  fered  damages  by  reason  of  said 
who  would  by  these  proceedings,  layout,  the  amount  of  which  dam- 
force  his  unwilling  and  perhaps  ages  is  held  by  them  to  be  equal  in 
more  prudent  neighbor  into  such  an  amount  to  the  benefits  by  him  re- 
enterprise,  must  see  to  it  that  he  ceived  therefrom.  This  judgment  is 
strictly  complies  with  all  the  sub-  in  effect,  that  the  plaintiff  has  suf- 
stantial  requirements  of  the  law  fered  and  been  paid  an  unnamed 
which  he  invokes."  Citing  Zottman  sum  of  money  as  damages,  which 
v.  City  &  County  of  San  Francisco,  sum  has  been  by  him  paid  back  to 
20  Cal.  98;  McLauren  v.  City  of  the  city  for  benefits  received  for  the 
Grand  Forks,  6  Dak.  397,  43  N.  W.  purposes  of  distribution  by  the  city 
710;  City  of  Kankakee  v.  Potter,  119  to  other  persons  damaged  by  the 
HI.  324;  Motz  v.  City  of  Detroit,  18  layout  in  question.'  The  defendant 
Mich.  495;  and  Tone  v.  City  of  Col-  cites  in  support  of  this  proposi- 
umbus,  39  Ohio  St.  299.  tion  Monagle  v.  Bristol  County 
Stephenson  v.  Town  of  Salem,  14  Com'rs,  62  Mass.  (8  Gush.)  360; 
Ind.  App.  386,  42  N.  E.  44,  943.  Gal-  Hildreth  v.  City  of  Lowell,  77  Mass, 
breath  v.  Newton,  30  Mo.  App.  380.  (11  Gray)  345;  Inhabitants  of  How- 
If,  however,  the  landowners  have  land  v.  Penobscot  County  Com'rs,  49 


938 


PUBLIC  REVENUES. 


§   383 


such  facts,  and  he  will  not  be  estopped  by  his  previous  action 
or  inaction.  The  failure  of  public  officials  to  record  or  file  ob- 
jections will  not  prejudice  the  one  making  them.526 

§  383.    Right  of  appeal  as  based  on  omission  to  tax  other  prop- 
erty. 

As  a  rule  the  fact  that  other  property  is  not  taxed  to  a  pro- 
portionate extent527  or  at  all52*  is  no  ground  for  relief  by  one 


Me.  143;  Mills,  Eminent  Domain,  §§ 
329,  330.  But  none  of  these  authori- 
ties bear  upon  the  question  further 
than  in  recognizing  and  applying 
two  propositions:  First,  'After  re- 
ceiving damages,  parties  cannot  be 
heard  against  the  validity  of  pro- 
ceedings.' *  *  *  Second,  Failure 
by  a  competent  tribunal,  acting  prop- 
erly, to  find  damages,  is  in  effect  a 
judgment  that  no  damage  has  been 
sustained.  *  *  *  But  neither  of 
these  propositions  reaches  the  vital 
point  of  the  present  claim.  Here  on 
the  one  hand,  was  no  estoppel  by 
actual  receipt  of  money,  and,  on  the 
other,  no  action  in  the  premises  by 
competent  authority,  to  determine. 
How  could  there  be  competent  au- 
thority to  determine  the  benefits  and 
damages  sustained  from  the  layout, 
if  such  a  layout  was  itself  illegal  and 
void,  and  therefore  none?  Whether 
under  these  circumstances  the  plain 
tiff  ought  to  have  appealed  thus  test- 
ing the  validity  of  the  layout  itself, 
and  whether  his  only  remedy  was 
to  be  found  in  that  direction,  we 
will  consider  presently  as  a  separate 
question.  Whether  he  was  estopped 
from  any  remedy,  by  appeal  or  oth- 
erwise, by  what  took  place,  as  he 
would  have  been  by  the  actual  re- 
ceipt of  money  awarded,  is  the  pres- 
ent subject  of  inquiry.  It  seems  to 
us  very  clearly,  that  he  should  not 
be  so  estopped.  The  very  ground  of 


the  estoppel  exists  either  in  act  or 
silence.  He  has  done  no  act.  Si- 
lence amounts  to  nothing,  unless  it 
is  that  of  one  upon  whom  rests  a 
duty  to  speak.  In  what  way  was 
that  duty  imposed  upon  the  plain- 
tiff? He  had  requested  the  city  to 
take  action  in  reference  to  Chapel 
street.  But  no  such  action  as  he 
desired  was  had.  No  action  what- 
ever, of  which  he  is  shown  to  have 
had  any  knowledge,  was  had.  *  *  * 
Whatever  may  be  regarded  as  the 
proper  function  of  fictions  in  the  law 
at  the  present  time,  we  cannot  agree 
to  the  proposition  that  the  plaintiff 
should  be  held  to  have  received 
what  he  had  not  received,  accepted 
a  sum  which  never  existed,  paid  it 
back  when  he  never  had  it  and 
thereby  acknowledged  both  damage 
and  benefit  resulting  to  him  from  an 
act  to  which  he  never  assented,  and 
of  which  it  cannot  be  conclusively 
presumed  he  ever  knew, — all  this 
for  the  purpose  of  invoking  against 
him  that  which,  at  least  sometimes, 
has  been  appropriately  called  'the 
equitable  doctrine  of  estoppel.'  " 

526  Delaware  &  H.  Canal  Co.  v.  City 
of  Buffalo,  39  App.  Div.  333,  56  N.  Y. 
Supp.  976. 

527  Regenstein  v.  City  of  Atlanta. 
98  Ga.  167;  Green  v.  City  of  Spring- 
field, 130  111.  515;  Thomson  v.  Peo- 
ple,   184    111.   17;    Lincoln   v.   Street 
Com'rs    of   Boston,   176    Mass.    210; 


§  384 


SPECIAL  ASSESSMENTS. 


not  the  owner,  although  in  some  jurisdictions  it  is  held  that  the 
right  exists  because  a  failure  to  equitably  tax  other  property  in- 
creases the  burden  upon  that  taxed.529 

§  384.    Excessive  assessment. 

The  property  owner  cannot  avail  himself,  as  a  ground  for  re- 
lief, of  the  fact  that  the  assessment  as  actually  made  may  be 
in  excess  of  the  amount  required  to  construct  a  local  improve- 
ment; such  excess  usually  belongs  to  the  property  owner  and 
should  be  returned  to  him.530  Where  the  assessment  is  ex- 


Humphreys  v.  City  of  Bayonne,  60 
N.  J.  Law,  406.  If,  however,  the  re- 
sult is  to  increase  the  assessment  of 
the  complaining  party,  this  question 
can  be  raised.  County  of  Monroe  v. 
City  of  Rochester,  88  Hun,  164,  34 
N.  Y.  Supp.  533.  Where  the  assess- 
ment is  grossly  disproportioned  it 
will  be  set  aside.  See,  also,  as  hold- 
ing the  same,  In  re  Townsend  Ave., 
35  Misc.  65,  71  N.  Y.  Supp.  201. 

028  Buckman  v.  Landers,  111  Cal. 
347,  43  Pac.  1125;  Phelan  v.  City  & 
County  of  San  Francisco,  120  Cal.  1, 
52  Pac.  38;  Bowditch  v.  City  of  New 
Haven,  40  Conn.  503;  Balfe  v.  Bell, 
40  Ind.  337;  Powell  v.  City  of  Greens- 
burg,  150  Ind.  148,  49  N.  E.  955;  In 
re  Voorhis,  3  Hun  (N.  Y.)  212; 
Mansfield  v.  City  of  Lockport,  24 
Misc.  25,  52  N.  Y.  Supp.  571;  In  re 
Churchill,  82  N.  Y.  288. 

529Gilkerson  v.  Scott,  76  111.  509; 
Johnson  v.  People,  177  111.  64;  Drake 
v.  Grout,  21  Ind.  App.  534,  52  N.  E. 
775;  In  re  Thirty-Ninth  St.,  1  Hill 
(N.  Y.)  191;  Coles  v.  Trustees  of 
Williamsburgh,  10  Wend.  (N.  Y.) 
659;  In  re  Appleby,  26  Hun  (N.  Y.) 
427;  In  re  Klock,  30  App.  Div.  24, 
51  N.  Y.  Supp.  897;  J.  &  A.  McKech- 
nie  Brew.  Co.  v.  Trustees  of  Canan- 
daigua,  162  N.  Y.  631,  57  N.  E.  1113; 
Masters  v.  City  of  Portland,  24  Or. 


161,  33  Pac.  540;  City  of  Scranton 
v.  Levers,  200  Pa.  56,  49  Atl.  980. 

530  Danenhower  v.  District  of  Co- 
lumbia, 7  Mackey  (D.  C.)  99.  The 
power  of  revision  and  correction  of 
errors  or  excessive  assessments  con- 
fers no  authority  under  act  of  Con- 
gress June  19th,  1878  (20  Stat.  166), 
to  impose  a  larger  levy.  Davies  v. 
City  of  Los  Angeles,  86  Cal.  37; 
Wells  v.  Wood,  114  Cal.  255.  The 
failure  to  appeal  from  an  excessive 
assessment  is  a  waiver  of  the  error. 
People  v.  McWethy,  165  111.  222; 
Billings  v.  City  of  Chicago,  167  111. 
337;  Danforth  v.  Village  of  Hins- 
dale,  177  111.  579;  Gross  v.  People, 
193  111.  260;  James  v.  City  of  Louis- 
ville, 19  Ky.  L.  R.  447,  40  S.  W.  912. 
If  the  assessment,  however,  is  gross- 
ly in  excess  of  the  value  of  the  work 
it  will  not  be  enforced.  Bullitt  v. 
Selvage,  20  Ky.  L.  R.  599,  47  S.  W. 
255.  The  fact  that  a  street  assess- 
ment equals  the  value  of  certain  lots 
sought  to  be  charged  does  not  ren- 
der it  void  as  amounting  to  confisca- 
tion. 

Germania  Bank  v.  City  of  St. 
Paul,  79  Minn.  29,  81  N.  W.  542. 
The  rule  also  holds  where  the  assess- 
ment has  been  paid  in  full  but  the 
improvement  abandoned  upon  its 
partial  completion.  City  of  Cincin- 


940 


PUBLIC  REVENUES. 


§  384 


cessive,  to  obtain  relief  it  is  not  necessary  for  the  property  owner 
to  tender  or  pay  the  amount  which  is  legally  a  charge  upon  his 
property  or  which  he  thinks  should  be  justly  apportioned  upon 
it.531  But  this  action  may  be  dependent  upon  statutory  provisions 
and  necessary;532  ordinarily,  where  the  assessment  is  excessive, 
this  fact  does  not  invalidate  the  entire  proceedings  but  only  so 
much  of  the  assessment  as  is  in  excess  of  the  legal  amount.533 


nati  v.  James,  55  Ohio  St.  180,  44  N. 
E.  925.  The  collection  of  an  exces- 
sive assessment  may  be  enjoined. 
City  of  Spokane  Falls  v.  Browne,  3 
Wash.  St.  84. 

531  Village   of  Norwood   v.   Baker, 
172  U.  S.   269;    Steckert  v.  City  of 
East  Saginaw,  22  Mich.  104;  Howell 
v.  City  of  Tacoma,  3  Wash.  St.  711; 
Griggs  v.  City  of  Tacoma,  3  Wash. 
St.  785;  Yates  v.  City  of  Milwaukee, 
92  Wis.  352;  Hayes  v.  Douglas  Coun- 
ty, 92  Wis.  429,  31  L.  R.  A.  213.    See 
to  the  contrary,  City  of  Ottawa  v. 
Barney,  10  Kan.  270;  Redick  v.  City 
of  Omaha,  35  Neb.  125,  52  N.  W.  847; 
and  Wells  v.  Western  Pav.  &  Supply 
Co.,  96  Wis.  116,  70  N.  W.  1071. 

532  McDonald    v.    Mezes,    107    Cal. 
492;    City  of  Elkhart  v.  Wickwire, 
121  Ind.  331;  Lynde  v.  City  of  Mai- 
den,  166   Mass.   244,   44   N.   E.   227; 
City  of  St.  Joseph  v.  Dillon,  61  Mo. 
App.  317;  In  re  Upson,  89  N.  Y.  67; 
Annie  Wright  Seminary  v.  City  of 
Tacoma,  23  Wash.  109,  62  Pac.  444. 

533  Farr    v.    West    Chicago    Park 
Com'rs,  167  111.  355,  46  N.  E.   893; 
Greeley  v.  Town  of  Cicero,  148  111. 
632;   Connecticut  Mut.  Life  Ins.  Co. 
v.  People,  172  111.  31;  Kerfoot  v.  City 
of  Chicago,  195  111.  229;  City  of  Elk- 
hart  v.  Wickwire,  121  Ind.  331,  22  N. 
E.  342;   Pittsburgh,  C.,  C.  &  St.  L. 
R.  Co.  v.  Fish,  158  Ind.  525,  63  N.  E. 
454.    The  amount  held  for  attorney's 
fees  by  §  9  of  the  Barrett  Law,  so 


called,  is  not  a  part  of  the  assess- 
ment in  the  sense  that  its  addition 
to  the  amount  to  be  recovered  will 
make  it  excessive.  Barber  Asphalt 
Pav.  Co.  v.  Watt,  51  La.  Ann.  1345; 
In  re  Brainerd,  1  N.  Y.  Supp.  78; 
In  re  Hudson  Ave.,  2  Hun  (N.  Y.) 
580;  Smith  v.  City  of  New  York,  4 
R  Y.  Supp.  449;  Hubbard  v.  Norton, 
28  Ohio  St.  116;  Pike  v.  Cummings, 
36  Ohio  St.  213.  If  some  of  the  in- 
stallments of  an  excessive  assess- 
ment have  been  paid,  the  excess 
should  be  deducted  from  subsequent 
installments  in  the  order  in  which 
they  mature. 

Pell  v.  City  of  New  York,  31  Misc. 
664,  65  N.  Y.  Supp.  34;  In  re  Phoe- 
nix, 53  App.  Div.  636,  65  N.  Y.  Supp. 
719;  People  v.  Coler,  31  Misc.  211,  65 
N.  Y.  Supp.  44;  In  re  Mead,  74  N. 
Y.  216;  In  re  Leake  &  Watts  Orphan 
Home,  92  N.  Y.  116.  Where  rock 
work  which  should  have  cost  $4.00 
per  cubic  yard  was  charged  for  at 
the  rate  of  $14.00  per  cubic  yard 
with  other  items  in  proportion,  the 
facts  justify  a  finding  of  such  fraud 
and  irregularity  as  to  justify  a  re- 
duction of  the  assessment.  Hays  v. 
City  of  Cincinnati,  62  Ohio  St.  116; 
In  re  Park  Ave.  Sewers,  169  Pa.  433. 
The  difference  in  cost  between  a 
ten-inch  local  sewer  and  a  fifteen- 
inch  main  sewer  should  be  paid  by 
the  municipality.  It  cannot  be  re- 
covered from  benefited  property. 


§  385 


SPECIAL  ASSESSMENTS. 


941 


§  385.    Judicial  confirmation  of  an  assessment  roll. 

Upon  a  petition  for  confirmation  of  a  special  assessment,  espe- 
cially under  the  laws  of  Illinois,  the  opportunity  is  given  the 
property  owner  to  raise  all  questions  relating  to  or  affecting  the 
legality  of  the  proceedings,534  and  the  further  rule  obtains,  in 
that  state  as  well  as  elsewhere,  that  upon  a  failure  to  raise 
specific  questions  at  that  time,  the  property  owner  loses  his 
right  to  thereafter  make  objections  based  upon  the  same  grounds 
or  depending  upon  such  irregularities.335  Upon  confirmation, 
separate  judgments  may  be  entered  confirming  the  assessment 
and  charging  different  tracts  of  land.538  Statutory  provisions 


534  Dempster  v.  People,  158  111.  36; 
Springer  v.  City  of  Chicago,  159  111. 
515;  Culver  v.  People,  161  111.  89; 
People  v.  Markley,  166  111.  48;  Bass 
v.  South  Park  Com'rs,  171  111.  370. 
The  legality  of  the  steps  by  which 
park  commissioners  acquire  control 
of  a  street  need  not  be  shown  on  an 
application  by  them  for  confirmation 
of  an  assessment  for  improvements. 
See,  also,  as  holding  the  same,  Aldis 
v.  South  Park  Com'rs,  171  111.  424. 
See  Young  v.  People,  171  111.  299,  as 
to  the  conclusiveness  of  judgment  of 
confirmation  on  jurisdictional  facts; 
in  this  case  insufficient  notice. 
Michael  v.  City  of  Mattoon,  172  111. 
394;  City  of  Bloomington  v.  Reeves, 
177  111.  161;  Phelps  v.  City  of  Mat- 
toon,  177  111.  169. 

Shannon  v.  Village  of  Hinsdale, 
180  111.  202.  But  the  question  of 
compliance  with  the  ordinance  In 
the  character  of  the  work  cannot  be 
raised.  People  v.  Chicago,  B.  &  Q. 
R.  Co.,  189  111.  397;  City  of  Chicago 
v.  Holden,  194  111.  213;  Markley  v. 
City  of  Chicago,  190  111.  276;  Kerfoot 
y.  City  of  Chicago,  195  111.  229. 

Gage  v.  City  of  Chicago,  196  111. 
512.  The  cost  of  making  and  collect- 
ing a  street  improvement  assessment 
should  not  be  included  in  the  as- 


sessment. Topliff  v.  City  of  Chicago, 
196  111.  215;  Myers  v.  City  of  Chi- 
cago, 196  111.  591.  The  question  of 
benefit  to  property  assessed  may  be 
raised  on  application  for  confirma- 
tion. 

As  to  the  sufficiency  of  the  peti- 
tion see  Adams  County  v.  City  of 
Quincy,  130  111.  566,  22  N.  E.  624; 
McChesney  v.  City  of  Chicago  (111.) 
45  N.  E.  226;  White  v.  City  of  Alton, 
149  111.  626;  Haley  v.  City  of  Alton, 
152  111.  113;  Clark  v.  City  of  Chi- 
cago, 155  111.  223;  Hull  v.  City  of 
Chicago,  156  111.  381;  Wadlow  v. 
City  of  Chicago,  159  111.  176;  Fer- 
ris v.  City  of  Chicago,  162  111.  Ill; 
Dickey  v.  City  of  Chicago,  164  111. 
37;  Adcock  v.  City  of  Chicago,  172 
111.  24;  Leitch  v.  People,  183  111.  569; 
Yaggy  v.  City  of  Chicago,  192  111. 
104. 

535  Murphy  v.  People,  120  111.  234, 
11  N.  E.  202;  Hewes  v.  Village  of 
Winnetka,  60  111.  App.  654;  Schertz 
v.  People,  105  111.  27;  Le  Moyne  v. 
West  Chicago  Park  Com'rs,  116  111. 
41;  Hinkle  v.  City  of  Mattoon,  170 
111.  316.  But  see  Markley  v.  City  of 
Chicago,  170  111.  358. 

sse  Browning  v.  City  of  Chicago, 
155  111.  314;  Zeigler  v.  People,  156 
111.  133;  Beach  v.  People,  157  111. 


942 


PUBLIC  REVENUES. 


§   386 


requiring  confirmatory  action  within  a  specified  time  by  either 
a  judicial  or  other  body  are  usually  considered  mandatory,  and 
if  action -is  not  taken  within  such  time,  the  confirmatory  body 
loses  jurisdiction.537 

§  386.    Reassessment  or  supplemental  assessment. 

The  right  exists  in  many  states,  through  public  policy5.38  or 
legislative  authority539  in  the  public  authorities,   to  procure   a 


659;  Andrews  v.  People,  158  111.  477; 

Delamater   v.   City  of   Chicago,   158 
111.  575. 

637  State  v.  Ramsey  County  Dist. 
Ct.,  75  Minn.  292.  "Chapter  thirty- 
five  (Sp.  Laws  1891)  provides  that, 
when  the  board  of  park  commission- 
ers of  St.  Paul  determine  to  take 
any  tract  of  land  for  a  park,  they 
shall  do  so  by  resolution  and  shall 
thereupon  make  an  order  directing 
the  board  of  public  works  to  deter- 
mine the  amount  of  damages  or  com- 
pensation to  be  paid  for  the  land 
so  taken,  and  after  deducting  the 
amount  of  such  compensation,  to  be 
paid  out  of  the  general  park  fund, 
to  assess  the  balance  on  the  prop- 
erty to  be  benefited.  It  is  further 
provided  that  a  copy  of  the  resolu- 
tion and  of  the  order  shall  be  cer- 
tified to  the  board  of  public  works. 
Section  twenty-six  provides  that  the 
assessment  for  benefits  shall  be  final- 
ly confirmed  by  the  board  of  public 
works  within  four  months  after  re- 
ceiving the  certified  copies  of  such 
order  and  resolution  from  the  park 
board.  In  this  case  the  assessment 
was  not  confirmed  within  the  four 
months  or  until  more  than  nine 
months  after  receiving  the  copies  of 
the  order  and  resolution  from  the 
park  board.  We  are  of  the  opinion 
that  the  provision  in  the  statute  re- 
quiring the  assessment  to  be  con- 
firmed within  the  four  months  is 


mandatory  and  not  directory,  and 
that  at  the  end  of  the  four  months 
the  board  lost  jurisdiction  to  con- 
firm the  assessment.  Where  the 
purpose  of  the  statute  is  merely  to 
prescribe  a  prompt  and  orderly 
method  of  transacting  public  busi- 
ness, a  provision  designating  the 
time  within  which  a  thing  shall  be 
done  is  generally  construed  to  be 
directory;  but  when  the  provision  is 
intended  for  the  benefit  of  particular 
individuals  in  proceedings  in  in- 
vitum,  it  is  generally  construed  to 
be  mandatory.  *  *  *  Clearly, 
this  provision  of  the  statute  is  in- 
tended for  the  benefit  of  the  persons 
whose  property  may  be  assessed  for 
special  benefits  resulting  from  such 
taking  and  it  is  immaterial  whether 
there  are  one  hundred  and  thirty  or 
only  one  of  such  persons."  In  re 
Deering,  14  Daly  (N.  Y.)  89;  Car- 
ling  v.  City  of  Hoboken,  64  N.  J. 
Law,  223,  44  Atl.  950. 

sss  Townsend  v.  City  of  Manistee, 
88  Mich.  408;  People  v.  Common 
Council  of  Rochester,  5  Lans.  (N. 
Y.)  142;  Mills  v.  Charleton,  29  Wis. 
400,  9  Am.  Rep.  578. 

539  gee,  also,  authorities  cited  un- 
der note  546.  Ede  v.  Cuneo,  126  Cal. 
167;  Pardridge  v.  Village  of  Hyde 
Park,  131  111.  537,  23  N.  E.  345. 
Where  the  original  assessment  has 
not  been  confirmed,  subsequent  pro- 
ceedings looking  to  the  levy  of  a 


§  3Sb 


SPECIAL  ASSESSMENTS. 


943 


reassessment  either  upon  the  motion540  or  by  action  of  property 
owners  affected  by  the  special  assessment  levied  to  pay  the  cost 
of  a  local  improvement.541  The  proceedings  for  reassessment 
are  based  either  upon  irregularities,  in  those  pending,  suf- 
ficient, if  tested,  to  render  them  invalid,342  or  upon  an  in- 


special  assessment  do  not  come  with- 
in the  cases  authorized  by  Rev.  St. 
111.  c.  24,  art.  9,  §  48,  which  pro- 
vides that  under  certain  circum- 
stances a  board  of  trustees  may  di- 
rect a  new  assessment  to  be  made. 
Laflin  v.  City  of  Chicago,  48  111.  449; 
City  of  Alton  v.  Foster,  74  111.  App. 
511;  Davis  v.  City  of  Litchfield,  155 
111.  384,  distinguishing  City  of  Car- 
lyle  v.  County  of  Clinton,  140  111. 
512;  and  City  of  East  St.  Louis  v. 
Albrecht,  150  111.  506. 

West  Chicago  Park  Com'rs  v. 
Sweet,  167  111.  326;  Murray  v.  City 
of  Chicago,  175  111.  340;  Ewart  v. 
Village  of  Western  Springs,  180  111. 
318;  Campbell  v.  Monroe  County 
Com'rs,  118  Ind.  119.  An  appeal 
lies  from  assessment  proceedings. 
City  of  Emporia  v.  Bates,  16  Kan. 
495;  Manley  v.  Emlen,  46  Kan.  655; 
City  of  Baltimore  v.  Ulman,  79  Md. 
469,  30  Atl.  43;  Brevoort  v.  City  of 
Detroit,  24  Mich.  322;  Smith  v.  City 
of  Detroit,  120  Mich.  572;  In  re  Pied- 
mont Ave.  East,  59  Minn.  522,  61  N. 
W.  678.  These  cases  hold  that  Laws 
of  1893,  c.  206,  authorizing  reassess- 
ments, are  retroactive  in  their  oper- 
ation. 

State  v.  Egan,  64  Minn.  331,  67  N. 
W.  71*  State  v.  Ramsey  County 
Dist.  Ct,  68  Minn.  242,  71  N.  W.  27. 
Where  there  is  a  charter  provision 
for  a  reassessment,  until  each  lot  or 
parcel  has  paid  its  proportional  part 
of  its  cost  of  the  improvement,  such 
a  proceeding  is  not  barred  unless  so 
especially  provided  by  the  statute 


except  by  a  lapse  of  time  so  long 
and  laches  so  great  that  the  aban- 
donment of  the  right  of  reassess- 
ment by  the  city  will  be  presumed. 

State  v.  Ramsey  County  Dist.  Ct., 
77  Minn.  248,  79  N.  W.  971;  Sand- 
ford  v.  Kearny  Tp.  Committee,  48  N. 
J.  Law,  125;  Jones  v.  Town  of  Tona- 
wanda,  158  N.  Y.  438,  reversing  35 
App.  Div.  151,  55  N.  Y.  Supp.  115; 
Budge  v.  City  of  Grand  Forks,  1  N. 
D.  309,  10  L.  R.  A.  165;  Cline  v. 
City  of  Seattle,  13  Wash.  444;  Stata 
v.  City  of  Ballard,  16  Wash.  418; 
McNamee  v.  City  of  Tacoma,  24 
Wash.  591,  64  Pac.  791;  Lewis  v. 
City  of  Seattle,  28  Wash.  639,  69  Pac. 
393. 

540  Reid  v.  Clay,  134  Cal.  207,  66 
Pac.  262;  State  v.  Ensign,  55  Minn. 
278.  The  order  for  reassessment 
should  specify  the  difference  in  the 
prior  proceedings. 

54iwestall  v.  Altschul,  126  Cal. 
164;  Wilkinson  v.  Inhabitants  of 
Trenton,  36  N.  J.  Law,  499.  Unless 
the  statute  provides  for  reassessment 
on  the  motion  of  the  property  own- 
er, such  right  does  not  exist.  Boice 
v.  Inhabitants  of  Plainfield,  38  N.  J. 
Law,  95;  Culver  v.  Jersey  City,  45 
N.  J.  Law,  256.  Where  the  uncon- 
stitutionally of  the  law  under  which 
the  proceedings  of  assessment  are 
made  is  raised,  the  laches  of  the 
parties  is  no  bar  to  a  writ  of  cer- 
tiorari  brought  to  set  the  proceed- 
ings aside. 

542  Lombard  v.  West  Chicago  Park 
Com'rs.  181  U.  S.  33,  affirming  judg- 


944 


PUBLIC  REVENUES. 


§    386 


sufficiency"43  or  excess544  in  amount  realized  as  compared  with 
the   actual  cost  of  the  public  improvement.     In   common  with 


ment  in  Cummings  v.  West  Chicago 
Park  Com'rs,  181  111.  136.  Rector  v. 
Board  of  Improvement,  50  Ark.  116; 
Gray  r.  Richardson  (Cal.)  55  Pac. 
603;  Ede  v.  Cuneo,  126  Cal.  167; 
Philadelphia  &  R.  Coal  &  Iron  Co.  v. 
City  of  Chicago,  158  111.  9.  If  pay- 
ments have  been  made  upon  an  as- 
sessment vacated,  they  should  be 
credited  upon  the  amount  deter- 
mined to  be  due  by  the  reassessment 
or  new  proceedings.  Bowen  v.  City 
of  Chicago,  61  111.  268;  and  Work- 
man v.  City  of  Chicago,  61  111.  463. 
Both  hold  that  a  reassessment  based 
upon  a  void  original  assessment  is 
also  void. 

City  of  Alton  v.  Foster,  74  111.  App. 
511.  A  reassessment  may  be  ordered 
upon  the  ground  of  irregularities  in 
the  former  proceedings  where  be- 
tween the  dates  of  the  inception  of 
the  two  proceedings  the  work  has 
been  completed.  Browning  v.  City 
of  Chicago,  155  111.  314.  A  reassess- 
ment may  be  directed  only  against 
that  property  in  respect  to  which  in 
the  former  proceedings  the  owners 
have  filed  objections. 

West  Chicago  Park  Com'rs  v.  Far- 
ber,  171  111.  146;  West  Chicago  Park 
Com'rs  v.  Metropolitan  West  Side  El. 
R.  Co.,  182  111.  246;  People  v.  City  of 
Pontiac,  185  111.  437;  Thompson  v. 
City  of  Chicago,  197  111.  599;  People 
v.  Common  Council  of  Lansing,  27 
Mich.  131;  Bogert  v.  Jackson  Circuit 
Judge,  118  Mich.  457,  76  N.  W.  983;  ' 
Townsend  v.  City  of  Manistee,  88 
Mich.  408;  Smith  v.  City  of  Detroit, 
120  Mich,  572;  State  v.  Ramsey 
County  Dist.  Ct.,  68  Minn.  242;  State 
v.  Ramsey  County  Dist.  Ct.,  77  Minn. 
248.  79  N.  W.  971.  A  reassessment 


may  be  directed  against  a  part  only 
of  the  property  affected  by  the  orig- 
inal proceedings. 

Aldridge  v.  Essex  Public  Road 
Board,  51  N.  J.  Law,  166,  16  Atl.  695; 
Howard  Sav.  Inst.  v.  City  of  New- 
ark, 52  N.  J.  Law,  1,  18  Atl.  672. 
Where  an  assessment  has  been  set 
aside  because  made  under  an  uncon- 
stitutional law,  the  city  can  make 
a  reassessment  under  subsequent 
valid  legislation.  City  of  Bayonne  v. 
Morris,  61  N.  J.  Law,  127,  38  Atl. 
819.  If  the  invalid  assessment  has 
been  paid  by  the  property  owner,  the 
reassessment  cannot  be  collected 
until  the  former  payments  have  been 
refunded  by  the  city.  Righter  v. 
City  of  Newark,  45  N.  J.  Law,  104; 
Hoetzel  v.  Inhabitants  of  East  Or- 
ange, 50  N.  J.  Law,  354;  Frederick 
v.  City  of  Seattle,  13  Wash.  428;  and 
Tacoma  Land  Co.  v.  City  of  Tacoma, 
14  Wash.  700,  44  Pac.  106. 

Soule  v.  City  of  Seattle,  6  Wash. 
315,  33  Pac.  384,  1080.  A  change  in 
the  manner  of  assessment  does  not 
defeat  the  right  of  reassessment. 
Phillips  v.  City  of  Olympia,  21  Wash. 
153,  57  Pac.  347.  A  city  is  estopped 
to  deny  the  invalidity  of  prior  as- 
sessment proceedings  where  it  has 
passed  an  ordinance  providing  for  a 
reassessment  and  declaring  the  for- 
mer assessment  defective. 

543  Dyer  v.  Scalmanini,  69  Cal. 
637;  Gill  v.  City  of  Oakland,  124  Cal. 
335.  If  necessary,  a  second  supple- 
mental assessment  can  be  made. 
Goodwin  v.  Warren  County  Com'rs, 
146  Ind.  164,  44  N.  E.  1110;  Kline  v. 
Huntington  County  Com'rs,  152  Ind. 
321,  51  N.  E.  476.  Wickett  v.  Town 
of  Cicero.  152  111.  575.  Under  a  SUD- 


387 


SPECIAL  ASSESSMENTS. 


945 


all  such  statutory  rights,  the  rule  of  strict  compliance  applies, 
and  the  character  of  these  provisions  is  usually  regarded  as 
mandatory.545  On  reassessment  proceedings,  the  provisions  of 
the  law  authorizing  them  or  the  laws  or  ordinances  existing  at 
the  time  of  the  reassessment  will  control.548 

§  387.     Curative  legislation. 

The  general  principles  defining  and  controlling  the  power  of- 
a  legislative  body  to  pass  curative  legislation  are  well  estab- 
lished. Laws  passed  or  action  taken  for  the  purpose  of  curing 
defects  in  special  assessment  proceedings  cannot  validate  as- 
sessments void  because  made  by  a  body  or  official,  not  having 
such  authority,547  in  an  unauthorized  manner,548  or  because  of  a 


plementary  assessment  a  property 
owner  can  show  that  his  property 
was  assessed  its  fair  proportion  of 
the  expense  of  the  improvement  in 
the  original  proceedings.  Thayer  v. 
City  of  Grand  Rapids,  82  Mich.  298, 
46  N.  W.  228;  Butler  v.  City  of  To- 
ledo, 5  Ohio  St.  225;  Philadelphia 
Mortg.  &  Trust  Co.  v.  City  of  New 
Whatcom,  19  Wash.  225,  52  Pac.  1063. 
Where  a  reassessment  still  leaves  a 
deficiency  in  the  amount  realized, 
under  Laws  1893,  p.  229,  §  6,  a 
second  reassessment  cannot  be  made 
and  such  deficiency  must,  therefore, 
be  paid  out  of  the  general  fund  of 
the  city. 

»**  Himmelmann  v.  Cofran,  36  Cal. 
411;  City  of  Emporia  v.  Bates,  16 
Kan.  495;  Butler  v.  City  of  Toledo, 
5  Ohio  St.  225. 

545  Lyon  v.  Alley,  130  U.  S.  177,  9 
Sup.  Ct.  480;  Wood  v.  Strother,  76 
Cal.  545,  18  Pac.  766;  Johnson  v.  Peo- 
ple, 177  111.  64;  City  of  St.  Louis  v. 
Clemens,  52  Mo.  133;  Dean  v.  Charl- 
ton,  27  Wis.  522;  Dill  v.  Roberts,  30 
Wis.  178.  A  reassessment  law  can- 
not authorize  a  municipality  to  im- 
pose a  tax  void  because  levied  for 


purposes  not  within  the  taxing  pow- 
er of  the  legislature. 

646  Harris  v.  City  of  Ansonia,  73 
Conn.  359,  47  Atl.  672;  State  v.  Nor- 
ton, 63  Minn.  497;  Culver  v.  Town 
of  Bergen,  29  N.  J.  Law  (5  Dutch.) 
266;  Town  of  Bergen  v.  Van  Home, 
32  N.  J.  Law,  490;  Cline  v.  City  of 
Seattle,  13  Wash.  444;  City  of  New 
Whatcom  v.  Bellingham  Bay  Imp. 
Co.,  16  Wash.  131.  The  principle  ap- 
plies to  appeals  by  a  landowner 
from  a  reassessment.  White  v.  City 
of  Tacoma,  20  Wash.  361,  55  Pac. 
319;  Heath  v.  McCrea,  20  Wash.  342, 
55  Pac.  432;  City  of  Port  Angeles  v. 
Lauridsen,  26  Wash.  153,  66  Pac. 
403;  'Lewis  v.  City  of  Seattle,  28 
Wash.  639,  69  Pac.  393.  Accrued  in- 
terest on  the  cost  of  the  improve- 
ment may  be  included  in  the  amount 
of  the  reassessment. 

547  Bates  v.  District  of  Columbia, 
7- Mackey  (D.  C.)  76;  Windser  v. 
District  of  Columbia,  7  Mackey  (D. 
C.)  96;  People  v.  Lynch,  51  Cal.  15; 
21  Am.  Rep.  677;  City  of  Red  Wing 
•;  Chicago,  M.  &  St.  P.  R.  Co.,  72 
Minn.  240. 

*«  People  v.  Wilson,  50  Hun.  606, 


•b.  Corp.— 60. 


PUBLIC  REVENUES. 


§  387 


failure  of  jnrisdictional  conditions.549  They  can  only  cure  irreg- 
alarities  in  the  exercise  of  a  power  already  legally  possessed.550 
As  said  by  Judge  Cooley:  "They  (such  proceedings)  cannot 
be  cured  when  there  was  a  lack  of  jurisdiction  to  take  them. 
This  is  a  rule  applicable  to  every  species  of  legal  proceeding. 
Curative  laws  may  heal  irregularities  in  action  but  they  cannot 
cure  a  want  of  authority  to  act  at  all."  Neither  can  such  laws 
affect  rights  of  parties  that  may  have  already  accrued551  or  in 
respect  to  pending  proceedings  require  acts  that  were  not  re- 
quired by  the  original  legislation  or  dispense  with  those  required 


3  N.  Y.  Supp.  326;  Poth  v.  City  of 
New  York,  151  N.  Y.  16;  In  re 
Omeaga  St.,  152  Pa.  129;  Bingaman 
v.  City  of  Pittsburgh,  147  Pa.  353, 
23  Atl.  395. 

5*9  Great  Falls  Ice  Co.  v.  District 
of  Columbia,  19  D.  C.  327;  Springer 
v.  City  of  Chicago,  159  111.  515;  Chi- 
cago &  N.  P.  R.  Co.  v.  City  of  Chi- 
cago, 174  111.  439;  Cleveland,  C.,  C. 
&  St.  L.  R.  Co.  v.  O'Brien,  24  Ind. 
App.  547,  57  N.  E.  47;  City  of  Balti- 
more v.  Porter,  18  Md.  284;  Matter 
of  Buhler,  32  Barb.  (N.  Y.)  79;  Peo- 
ple v.  Thirty-First  Ward  Sup'r,  89 
Hun,  241,  35  N.  Y.  Supp.  91;  Conde 
v.  City  of  Schenectady,  29  App.  Div. 
604,  51  N.  Y.  Supp.  854.  A  declara- 
tion in  the  curative  law  that  prior 
proceedings  shall  be  valid  in  spite  of 
Jurisdictional  irregularities  does  not 
cure  such  defect.  Hopkins  v.  Mason, 
61  Barb.  (N.  Y.)  469;  Savage  v. 
City  of  Buffalo,  131  N.  Y.  568;  City 
of  Reading  v.  Savage,  120  Pa.  198, 
13  Atl.  919;  Kimball  v.  Town  of 
Rosendale,  42  Wis.  407. 

550  Shawnee  County  Com'rs  v.  Car- 
ter, 2  Kan.  115;  Atchison  &  N.  R. 
Co.  v.  Maquilkin,  12  Kan.  301.  "The 
taxes  complained  of  were  levied  in 
1872,  for  the  year  1872.  This  suit 
was  commenced  February  7,  1873,  to 
enjoin  their  collection.  The  said  ap- 
plication for  a  temporary  injunction 


was  heard  and  decided  February  19, 
1873;  and  the  case  was  brought  to 
this  court  March  10,  1873.  On 
March  6,  1873,  an  act  of  the  legisla- 
ture was  passed,  which  took  effect 
March  20,  1873  (Laws  1873,  p.  135), 
after  this  case  had  been  brought  to 
this  court,  which  act  it  is  claimed 
makes  said  city  tax  valid.  This  can- 
not be  so.  The  annexation  of  said 
property  to  said  city  was  void,  not 
for  any  irregularity  merely  in  the 
annexation  proceedings,  but  void  be- 
cause the  city  had  no  power  to  an- 
nex it.  The  tax  levied  on  said  prop- 
erty was  void,  not  for  any  irregular- 
ity merel;-  in  the  tax  proceedings, 
but  void  because  the  city  had  no 
power  to  tax  it.  Both  the  annexa- 
tion of  said  property,  and  the  taxing 
of  it,  were  void  for  the  want  of  ju- 
risdiction over  the  subject-matter 
thereof.  Retrospective  statutes  of  a 
remedial  nature,  curing  the  defective 
execution  of  some  power  really  pos- 
sessed by  the  person,  tribunal,  or  of- 
ficer attempting  to  exercise  it,  have 
often  been  held  valid.  But  a  retro- 
spective statute  attempting  to  cre- 
ate a  power,  or  to  cure  a  defect  of 
jurisdiction,  we  believe,  has  never 
been  held  valid." 

osiLockart  v.  City  of  Troy,  48 
Ala.  579;  Atchison  &  N.  R.  Co.  v. 
Maquilkin,  12  Kan.  301. 


§  388  SPECIAL   ASSESSMENTS.  947 

in  the  first  instance.552  In  connection  with  this  subject  there  is 
a  substantial  difference  between  curative  legislation  intended 
to  operate  retrospectively  or  prospectively.  In  respect  to  legis- 
lation of  the  latter  class,  the  power  of  a  legislative  body  is  more 
extensive  and  effective,553  especially  if  it  possesses  the  original 
power  to  pass  legislation  requiring  or  dispensing  with  certain 
acts  in  connection  with  the  levy  and  collection  of  special  assess- 
ments.55* Legislation  can,  however,  be  passed  curing  mere  irreg- 
ularities in  action  so  long  as  it  does  not  come  within  the  prin- 
ciples stated  above.555 

§  388.     Collateral  attack. 

Where  assessment  proceedings  are  void, because  of  a  failure 
of  jurisdictional  conditions  or  facts,  these  may  be  raised  and 
shown  when  collaterally  attacked.856  The  other  rule  is  as  uni- 
versally held  that  mere  irregularities,  or  a  failure  to  comply 
with  immaterial  technicalities  or  the  exercise  of  discretionary 
powers,  cannot  be  so  inquired  into  and  that  the  judgment  of  con- 
firmation or  other  final  action  in  the  matter  is  conclusive  upon 
all  parties557  except  in  direct  proceedings  brought  within  the 

552  city  of  Emporia  v.  Norton,  13  539;    Borough   of   New   Brighton   v. 
Kan.  560.  Biddell,  14  Pa.  Super.  Ct.  207. 

553  Reis  v.   Graff,   51   Cal.   86,   fol-       556  Keifer  v.  City  of  Bridgeport,  68 
lowed  in  People  v.  Kinsman,  51  Cal.  Conn.  401;  Keeler  v.  People,  160  111. 
92;  Ziegler  v.  Flack,  54  N.  Y.  Super.  179;    Hull   v.    People,   170    111.   246; 
Ct.  (22  J.  &  S.)  69.  City  of  Ithaca  v.   Bahcock,  72  App. 

554  city  of  Clinton  v.  Walliker,  98  Div.  260,  76  N.  Y.  Supp.  49;  Kline  v. 
Iowa,   655,   68  N.  W.  431;    Doyle  v.  City   of  Tacoma,   11  Wash.   193,   39 
City  of  Newark,  34  N.  J.  Law,  236.  Pac.  453. 

555  city  of  Alton  v.  Foster,  74  111.        557  Glover  v.  People,   188   111.   576, 
App.  511;    Tuttle  v.  Polk,   84  Iowa,  59  N.  E.  429;  Illinois  Cent.  R.  Co.  v. 
12,  50  N.  W.  38;    Manley  v.  Emlen,  People,  189    111.   119,   59  N.   E.   609; 
46  Kan.   655;   Bowditch  v.   Superin-  Jebb  v.  Sexton,  84  111.  App.  45;  Clark 
tendent  of   Streets,   168   Mass.   239;  v.  People,  146  111.  348;   Meadowcroft 
Towne  v.   City  Council  of  Newton,  v.  People,  154  111.  416;  West  Chicago 
169    Mass.    240;    Nelson    v.    City   of  St.   R.   Co.   v.   People,   155   111.   299; 
Saginaw,  106  Mich.  659;  In  re  Marsh,  Dickey  v.  People,  160  111.  633;   Dore- 
21  Hun   (N.  Y.)   582;   Smith  v.  City  mus  v.  People,  161  111.  26;   Gage  v. 
of  Buffalo,  159  N.  Y.  427,  affirming  People,  163  111.  39;   People  v.  Mark- 
90   Hun,   118,   35   N.   Y.   Supp.    635;  ley,  166   111.   48;    Walker  v.  People, 
Nottage  v.  City  of  Portland,  35  Or.  169  111.  473;    Larson  v.   People,  170 


948 


PUBLIC  REVENUES. 


§389 


statutory   time   for  the   express  purpose   of  testing  such  ques- 
tions.6*8 


§  389.    Lien  and  priority  of  special  assessments. 

Although  a  special  assessment  is  based  upon  the  doctrine  of 
benefits,  so  called,  yet,  as  already  stated,  it  is  a  tax  within  the 
strict  meaning  of  that  word  and  the  result  of  the  exercise  of  the 
power  of  taxation.559  It  follows  from  this  that  independent  of 


111.  93;  Young  v.  People,  171  111. 
299;  Kunst  v.  People,  173  111.  79; 
Blount  v.  People,  188  111.  538;  Jack- 
eon  v.  Smith,  120  Ind.  520,  22  N.  E. 
431;  City  of  Bloomingtcgi  v.  Phelps, 
149  Ind.  596,  49  N.  E.  581;  Layman 
v.  Hughes,  152  Ind.  484,  51  N.  E. 
1058;  Green  v.  Shanklin,  24  Ind. 
App.  608,  57  N.  E.  269;  Brimmer  v. 
City  of  Boston,  102  Mass.  19;  Scot- 
tea  v.  City  of  Detroit,  65  Mich.  564, 
64  N.  W.  579;  Michael  v.  City  of  St. 
Louis,  112  Mo.  610,  following  City  of 
St.  Louis  v.  Ranken,  96  Mo.  497; 
and  City  of  St.  Louis  v.  Excelsior 
Brewing  Co.,  96  Mo.  677.  City  of 
Girardeau  v.  Houck,  129  Mo.  607; 
Moore  v.  Perry,  13  Tex.  Civ.  App. 
204. 

The  following  cases  hold  that 
the  exercise  of  discretionary  mat- 
ters cannot  be  inquired  into  collat- 
erally. Hull  v.  People,  170  111.  246; 
Hewes  v.  Glos,  170  111.  436;  Pfeiffer 
v.  People,  170  111.  347;  De  Puy  v. 
City  of  Wabash,  133  Ind.  336,  32  N. 
E.  1016;  Gaslight  &  Coke  Co.  v.  City 
of  New  Albany,  158  Ind.  268,  63  N. 
E.  458;  Cason  v.  City  of  Lebanon, 
153  Ind.  567;  State  v.  City  of  Neo- 
desha,  3  Kan.  App.  319,  45  Pac.  122; 
Brown  v.  City  of  Saginaw,  107  Mich. 
643,  65  N.  W.  601;  Borgman  v.  City 
of  Detroit,  102  Mich.  261;  City  of 
Moberly  v.  Hogan,  131  Mo.  19;  Poil- 
lon  v.  Brunner,  66  N.  J.  Law,  116, 


48  Atl.  541;  Hooker  v.  City  of  Roch- 
ester, 30  N.  Y.  Supp.  297;  Mansfield 
v.  City  of  Lockport,  24  Misc.  25,  52 
N.  Y.  Supp.  571;  Hunt  v.  Gorton,  20 
R.  I.  163,  37  Atl.  706;  Eddy  v.  Wil- 
son, 43  Vt.  362. 

558Conlin  v.  People,  190  111.  400, 
60  N.  E.  55;  Pfeiffer  v.  People,  170 
111.  347;  Johnson  v.  People,  177  111. 
64;  McKee  Land  &  Imp.  Co.  v. 
Swikehard,  23  Misc.  21,  51  N.  Y. 
Supp.  399;  Hoffeld  v.  City  of  Buffalo, 
130  N.  Y.  387;  Monroe  County  v. 
City  of  Rochester,  154  N.  Y.  570,  af- 
firming 90  Hun,  607,  35  N.  Y.  Supp. 
1105;  McNamee  v.  City  of  Tacoma, 
24  Wash.  591,  64  Pac.  791. 

559  Sargent  v.  Tuttle,  67  Conn.  162, 
32  L.  R.  A.  822;  City  of  Dubuque  v. 
Illinois  Cent.  R.  Co.,  39  Iowa,  58; 
City  of  Muscatine  v.  Chicago,  R.  I. 
&  P.  R/Co.,  79  Iowa,  645,  44  N.  W. 
909.  "It  is  insisted  that  this  pro- 
vision authorizes  an  assessment  up- 
on the  lot  and  that  the  tax  assessed 
is  a  lien  thereon,  but  no  remedy  is 
contemplated  against  the  lot  owner. 
But  the  provision  expressly  declares 
that  the  assessment  shall  have  the 
effect  of  a  tax.  The  ordinance  of 
the  city  enacted  pursuant  to  this  pro- 
vision of  the  charter  provides  for 
the  collection  of  the  special  paving 
tax  in  this  language:  'Section  nine. 
Any  and  all  paving  done  by  the  city 
under  the  provisions  of  this  ordi- 


§  389 


SPECIAL  ASSESSMENTS. 


949 


statutory  or  charter  provisions  the  special  assessment  may  have 
a  lien  upon  the  property  against  which  it  is  charged  and  pos- 
sess the  usual  priority  of  liens  of  such  a  nature.580  Its  rights 
and  priorities  are  usually  prescribed  by  statute  and  its  relative 
priority  and  superiority  as  a  lien  depend  upon  such  provisions.561 
Where  a  priority  is  attempted  to  be  given  by  statute,  its  charac- 
ter must  be  clearly  and  plainly  stated  before  it  will  be  held  to 
exist.562  As  a  lien,  special  assessments  are  usually  superior  to  all 


nance  shall,  if  the  assessment  there- 
for be  not  paid  by  the  party  or  par- 
ties chargeable  therewith,  as  herein 
required,  become  and  be  levied  as  a 
special  tax  on  the  property  liable  for 
such  assessments;  and  all  the  provi- 
sions of  law  relating  to  special  as- 
sessments, and  for  the  enforcement 
and  collection  of  the  same,  shall  ap- 
ply to  the  assessments  levied  under 
the  provisions  of  this  ordinance.'  It 
will  be  observed  that  the  assess- 
ments having  this  effect  of  a  tax 
under  the  provision  of  the  charter, 
may,  under  the  ordinance,  be  en- 
forced, if  collected  by  virtue  of  the 
provisions  of  the  law  applicable  to 
special  taxes.  The  assessment  in 
question  is  a  tax.  The  tax  is  a  debt, 
for  the  recovery  whereof  an  action 
may  be  maintained.  *  *  *  The 
property  becomes  bound  by  a  lien 
for  the  taxes  for  which  the  owner  is 
liable." 

BSD  Barfield  v.  Gleason,  111  Ky.  491, 
63  S.  W.  964.  Where  the  assessment 
through  compliance  with  the  statu- 
tory provisions  has  become  a  lien 
upon  property,  the  failure  to  comply 
with  the  provision  of  an  ordinance 
will  not  affect  its  validity.  Alle- 
gheny City's  Appeal,  41  Pa.  60. 

B6i  Bauman  v.  Ross,  167  U.  S.  548. 
The  Supreme  Court  of  the  United 
States  in  this  case  holds  that  it  is 
within  the  power  of  the  legislature 
to  make  the  cost  of  a  local  improve- 


ment and  assessed  upon  real  estate, 
a  lien  upon  it  and  payable  immedi- 
ately. City  of  Pittsburg  v.  Murphy 
(C.  C.  A.)  95  Fed.  57.  By  statutory 
provision,  property  is  not  subject  to 
sale  for  taxes  or  other  liable  claims 
excepting  in  the  name  of  the  regis- 
tered owner. 

Guardians  of  Tendring  Union  v. 
Dowton,  45  Ch.  Div.  583;  City  Coun- 
cil of  Montgomery  v.  Birdsong,  126 
Ala.  632,  28  So.  522;  Sanders  v. 
Brown,  65  Ark.  498,  47  S.  W.  461; 
Durrell  v.  Dooner,  119  Cal.  411; 
Burke  v.  Lukens,  12  Ind.  App.  648, 
40  N.  E.  641;  Des  Moines  Brick 
Mfg.  Co.  v.  Smith,  108  Iowa,  307,  79 
N.  W.  77;  Richardson  v.  Mehler,  111 
Ky.  408,  63  S.  W.  957;  Auditor  Gen- 
eral v.  Maier,  95  Mich.  127;  City  of 
Pleasant  Hill  v.  Dasher,  120  Mo.  675, 
25  S.  W.  566;  Clemens  v.  Knox,  31 
Mo.  App.  185;  Barber  Asphalt  Pav. 
Co.  v.  Young,  94  Mo.  App.  204,  68  S. 
W.  107,  1115;  In  re  Pequest  River 
Drainage,  42  N.  J.  Law,  553.  A  stat- 
utory lien  Is  not  divested  by  the 
foreclosure  of  a  prior  mortgage.  Vil- 
lage of  Little  Falls  v.  Cobb,  80  Hun, 
20,  29  N.  Y.  Supp.  855;  Borough  of 
New  Brighton  v.  Biddell,  14  Pa. 
Super.  Ct.  207;  Borough  of  Beltz- 
hoover  v.  Maple,  130  Pa.  335,  18  Atl. 
650;  Borough  of  Youngsville  v.  Sig- 
gins,  110  Pa.  291;  City  of  Chester  v. 
Eyre,  181  Pa.  642. 

662  Borough    of   Mauch    Chunk    v. 


950 


PUBLIC  REVENUES. 


g  390 


others  except  those  for  prior  delinquent  taxes  or  assessments  up- 
on the  same  property.563 

§  390.    The  same  subject  continued. 

A  special  assessment  by  whatever  method  it  may  be  given  the 
character  and  priority  suggested  in  the  preceding  section,  that  it 
have  such  will  depend  upon  the  validity  of  the  assessment  pro- 
ceedings. The  collection  of  the  special  assessment  itself  is  but 
one  step  in  the  process  of  securing  from  the  owner  his  proportion 
of  the  cost  of  a  local  improvement.  Each  subsequent  step  de- 
pends upon  the  legality  of  the  preceding  ones.  Whether  a  local 
assessment,  therefore,  may  become  a  lien  upon  the  property 
against  which  it  is  levied  and  have  the  priority  to  which  it  is 
entitled  by  its  character  depends  upon  the  strictness  with  which 
the  provisions  of  the  law  have  been  followed.564  The  omission 
or  defective  performance  of  necessary  acts  will  result  in  a  loss 
of  its  status.565  The  necessary  acts  and  the  manner  of  their  per- 


Shortz,  61  Pa.  399;  Wilson  v.  Alle- 
gheny City,  79  Pa.  272.  A  munici- 
pal lien  is  an  adverse  right  granted 
by  law  against  the  will  of  the  citi- 
zen and  unless  plainly  given  cannot 
take  his  property  or  money.  City  of 
Philadelphia  v.  Greble,  38  Pa.  339. 

563  See  authorities  cited  under  pre- 
ceding note.  Ramish  v.  Hartwell, 
126  Cal.  443;  Des  Moines  Brick  Mfg. 
Co.  T.  Smith,  108  Iowa,  307;  Dress- 
man  v.  Farmers'  &  Traders'  Nat. 
Bank,  100  Ky.  571,  38  S.  W.  1052,  36 
L.  R.  A.  121;  Dressman  v.  Semonin, 
20  Ky.  L.  R.  868,  47  S.  W.  767;  Kelly 
v.  Mendelsohn,  105  La.  490;  Morey 
v.  City  of  Duluth,  75  Minn.  221,  77 
N.  W.  829.  The  fact  that  the  assess- 
ment is  paramount  to  previous  liens 
may  follow  by  necessary  implication. 
White  v.  Knowlton,  84  Minn.  141,  86 
N.  W.  755;  Hand  v.  Jersey  City,  41 
N.  J.  Eq.  663,  7  Atl.  565;  Trustees 
of  Public  Schools  v.  Shotwell,  45  N. 
J.  Eq.  106;  Fisher  v.  City  of  New 
York,  6  T.  &  C.  (N.  Y.)  100;  Bell  v. 


City  of  New  York,  66  App.  Div.  578, 
73  N.  Y.  Supp.  298;  Makley  v.  Whit- 
more,  61  Ohio  St.  587,  56  N.  E.  461; 
City  of  Philadelphia  v.  Meager,  67 
Pa.  345;  Bryant's  Appeal,  104  Pa. 
372;  City  of  Seattle  v.  Hill,  14  Wash. 
487,  45  Pac.  17,  35  L.  R.  A.  372; 
Krutz  v.  Gardner,  25  Wash.  396,  65 
Pac.  771;  McMillan  v.  City  of  Ta- 
coma,  26  Wash.  358,  67  Pac.  68.  A 
special  assessment  lien  is  subordi- 
nate to  the  lien  of  delinquent  gen- 
eral taxes. 

564  Buckman  v.  Cuneo,  103  Cal.  62, 
36  Pac.  1025;  Williams  v.  Bergin, 
129  Cal.  461,  62  Pac.  59;  Joyce  v. 
Falls  City  Artificial  Stone  Co.,  23  Ky. 
L.  R.  1201,  64  S.  W.  912;  Berghaus 
v.  City  of  Harrisburg,  122  Pa.  289; 
Hutcheson  v.  Storrie  (Tex.  Civ. 
App.)  48  S.  W.  785. 

ses  Borland  v.  Bergson,  78  Cal. 
637;  Frenna  v.  Sunnyside  Land  Co., 
124  Cal.  437;  Wilson  v.  Poole,  33 
Ind.  443;  Brookbank  v.  City  of  Jef- 
fersonville,  41  Ind.  406;  Galbreath 


§  3<)0b 


SPECIAL  ASSESSMENTS. 


951 


formance  have  been  particularly  emphasized  in  the  preceding 
sections.560 

(a)  Description  of  property.    A  special  assessment  is  a  charge 
against  property,  not  an  individual.     The  description  of  the  land 
charged  must,  therefore,  be  sufficiently  accurate  and  definite  to 
render  its  identity  certain,  and  a  failure  to  do  this  will  destroy 
any  lien  which  may  exist.567 

(b)  Unauthorized  improvement.     Again,  if  the  special  assess- 
ment is  levied  to  pay  the  cost  in  whole  or  in  part  of  an  unauthor- 
ized improvement  or  the  excess  of  cost  beyond  that  authorized, 
the  assessment  will  lose  its  rights  as  such,  or,  stated  in  another 
way,  its  lien  and  priority  wrill  be  wholly  or  partially  destroyed.568 


v.  Newton,  30  Mo.  App.  380;  Risley 
v.  City  of  St.  Louis,  34  Mo.  404; 
Keith  v.  Bingham,  100  Mo.  300. 
But  it  is  not  necessary  to  show  that 
every  prerequisite  step  has  been 
taken.  Equitable  Trust  Co.  Y. 
O'Brien,  55  Neb.  735,  76  N.  W.  417. 
The  burden  of  proof  is  upon  the 
person  asserting  the  validity  of  a 
lien.  Penwarden  v.  Dunellen,  50 
N.  J.  Law,  565,  15  Atl.  529;  McCar- 
thy v.  Jersey  City,  44  N.  J.  Law, 
136;  People  v.  Suffern,  68  N.  Y.  321; 
Ardrey  v.  City  of  Dallas,  13  Tex. 
Civ.  App.  442,  35  S.  W.  726;  City  of 
Spokane  Falls  v.  Browne,  3  Wash. 
St.  84. 

see  Murphy  v.  Beard,  138  Ind.  560, 
38  N.  E.  33.  Such  an  assessment 
is  a  first  lien  on  the  land.  Hibben 
v.  Smith,  158  Ind.  206,  62  N.  E.  447. 

567  Ede  v.  Knight,  93  Cal.  159; 
Nicholes  v.  People,  165  111.  502;  Ad- 
kins  v.  Quest,  79  Mo.  App.  36.  But 
see  Borough  of  McKeesport  v. 
Busch,  166  Pa.  46. 

ses  Donnelly  v.  Howard,  60  Cal. 
291;  Dorathy  v.  City  of  Chicago,  53 
111.  79;  Gage  v.  People,  163  111.  39; 
Smith  v.  Kochersperger,  173  111.  201; 
McManus  v.  People,  183  111.  391; 


Grey  v.  People,  194  111.  486;  Naltner 
v.  Blake,  56  Ind.  127;  Kansas  City 
Grading  Co.  v.  Holden,  107  Mo.  305, 
17  S.  W.  798;  Brennan  v.  City  of 
Buffalo,  162  N.  Y.  491.  The  rule 
also  applies  to  an  unauthorized  or 
excessive  amount. 

Stone  v.  Viele,  38  Ohio  St.  314; 
Oregon  &  C.  R.  Co.  v.  City  of  Port- 
land, 25  Or.  229,  35  Pac.  452,  22  L. 
R.  A.  713.  The  rule  also  applies 
to  an  unnecessary  improvement  and 
one  which  actually  damaged  instead 
of  benefited  the  property  assessed. 
City  of  Pittsburgh  v.  MacConnell, 
130  Pa.  463,  18  Atl.  645.  But  spe- 
cific allegations  are  necess'ary  on  be- 
half of  the  property  owner  to  avail 
himself  of  this  principle.  Watson  v. 
City  of  Philadelphia,  93  Pa.  111. 
The  rule  does  not  apply  where  there 
has  been  a  substantial  compliance 
with  the  ordinance  authorizing  the 
work.  City  of  Allegheny  v.  McCaf- 
frey, 131  Pa.  137;  City  of  Chester  v. 
Eyre,  167  Pa.  308;  Sanderson  v.  Her- 
man, 108  Wis.  662,  84  N.  W.  890,  85 
N.  W.  141.  A  wrong  recital  of  au- 
thority will  not,  however,  make  the 
assessment  invalid. 


952 


PUBLIC  REVENUES. 


391b 


§  391.    Collection  of  special  assessments. 

(a)  By  an  individual.     In  some  states  upon  the  construction 
of  a  local  improvement,  the  contractor  is  given  a  warrant  or  other 
evidence  of  his  right  to  collect  in  the  proportion  established  by 
law  from  each  property  owner  who  may  be  charged  with  the 
whole  or  any  part  of  its  cost.569    The  collection  of  the  special  as- 
sessment rests,  then,  in  the  individual,  and  he  is  governed  in  his 
proceedings  entirely  by  local  charter  or  statutory  provisions,  ref- 
erence to  some  of  which  is  made  in  the  notes.570 

(b)  By  the  state.     In  the  majority  of  public  jurisdictions,  the 
public  authorities  are  vested  with  the  power  to  collect  special 
assessments,  and  the  moneys  pass  through  the  regular  channels 
and  are  disbursed  by  public  officials.571 


sea  Santa  Cruz  Rock  Pav.  Co.  v. 
Lyons,  133  Cal.  114,  65  Pac.  329.  A 
materialman  or  laborer  supplying 
commodities  at  the  request  of  a 
property  owner  in  the  construction 
of  a  local  improvement  has  a  lien 
upon  the  property  for  his  claim. 
See,  also,  as  holding  the  same, 
Young  v.  Borzone,  26  Wash.  4,  66 
Pac.  135,  421,  denying  a  rehearing; 
Moffltt  v.  Jordan,  127  Cal.  622. 

o™  Buckman  v.  Cuneo,  103  Cal.  62, 
36  Pac.  1025;  Palmer  v.  Burnham, 
120  Cal.  364,  52  Pac.  664;  Engelbret 
.v.  McElwel,  122  Cal.  284;  Sloan  v. 
Faurot,  11  Ind.  App.  689,  39  N.  E. 
539.  A  previous  demand  on  the 
property  owner  for  the  payment  of 
a  street  assessment  is  not  a  condi- 
tion precedent  to  exercise  the  right. 
Clements  v.  Lee,  114  Ind.  397,  16 
N.  E.  799;  Myers  v.  Indianapolis 
Union  R.  Co.,  12  Ind.  App.  170,  39 
N.  E.  907;  City  of  Connersville  v. 
Merrill,  14  Ind.  App.  303,  42  N.  E. 
1112;  Bozarth  v.  McGillicuddy,  19 
Ind.  App.  26,  47  N.  E.  397,  48  N.  E. 
1042;  Lewis  v.  Albertson,  23  Ind. 
App.  147,  53  N.  E.  1071. 

Jessen    v.    Pierce,    25    Ind.    App. 


222,  57  N.  E.  941.  The  holder  of  a 
bond  issued  for  the  street  improve- 
ment given  the  right  under  Burns' 
Rev.  St.  1894,  §  4297  to  collect  the 
same  and  foreclose  its  lien.  Tuttle 
v.  Polk,  92  Iowa,  433,  60  N.  W.  733; 
Des  Moines  Brick  Mfg.  Co.  v.  Smith, 
108  Iowa,  307,  79  N.  W.  77;  Dashiell 
v.  City  of  Baltimore,  45  Md.  615; 
Schneider  Granite  Co.  v.  Taylor,  64 
Mo.  App.  37;  Gest  v.  City  of  Cincin- 
nati, 26  Ohio  St.  275,  The  action 
may  be  brought  by  the  municipality 
in  its  name  for  the  benefit  of  the 
contractor.  State  v.  Kobe,  106  Wis. 
411.  Although  the  right  to  collect 
may  not  rest  in  an  individual,  yet 
special  assessments  collected  by  pub- 
lic officials  belong  to  the  owner  of 
certificates  representing  such  assess- 
ment. 

571  Hagar  v.  Reclamation  Dist.  No. 
108,  111  U.  S.  701;  City  of  Highlands 
v.  Johnson,  24  Colo.  371,  51  Pac. 
1004;  City  of  Greencastle  v.  Allen, 
43  Ind.  347.  If  city  authorities  neg- 
lect to  take  the  proper  steps  to  levy 
and  collect  a  street  improvement  as- 
sessment, the  street  contractor  can 
compel  by  mandamus  the  perform- 


392  SPECIAL  ASSESSMENTS. 

392.    Manner  and  amount  of  collection. 


953 


The  usual  method  for  the  collection  of  special  assessments  is 
through  an  action  at  law572  in  which  the  ordinary  rules  apply  in 
respect  to  the  jurisdiction  of  the  court,573  parties  plaintiff574  and 
defendant,575  the  pleadings  in  the  case,576  the  introduction  of 
evidence577  and  the  final  judgment.578  If  an  action  is  necessary 


ance  of  their  duties.  Martin  v.  Wills, 
157  Ind.  153,  60  N.  E.  1021.  The 
state  has  a  choice  of  remedies  either 
to  collect  by  foreclosure  of  the  as- 
sessment lien,  a  sale  of  the  proper- 
ty or  by  precept  issued  by  order  of 
the  city  council.  State  v.  Laughlin, 
101  Ind.  29;  Morgan  v.  City  of  Du- 
buque,  28  Iowa,  575.  The  obligation 
rests  upon  public  officials  to  collect 
special  assessments  within  a  reason- 
able time  after  the  work  is  done 
for  which  they  are  levied. 

Shaw  v.  Des  Moines  County,  74 
Iowa,  679,  39  N.  W.  101;  City  of 
Leavenworth  v.  Stille,  13  Kan.  539; 
Slack  v.  Ray,  26  La.  Ann.  674;  Roeb- 
ling  v.  Inhabitants  of  Trenton,  58 
N.  J.  Law,  40,  32  Atl.  685;  Commer- 
cial Nat.  Bank  v.  City  of  Portland, 
24  Or.  188,  33  Pac.  532.  The  city 
officials  may  so  unreasonably  delay 
the  collection  of  special  assessments 
as  to  charge  them  with  neglect  of 
duty.  McEwan  v.  City  of  Spokane, 
16  Wash.  212;  State  v.  Kobe,  106 
Wis.  411;  Allen  v.  City  of  Galveston, 
51  Tex.  302. 

672  city  of  Santa  Barbara  v.  Huse, 
51  Cal.  217;  Huff  v.  City  of  Jackson- 
ville, 39  Fla.  1,  21  So.  776.  The 
amount  of  the  lien  may  be  enforced 
in  equity.  Crowell  v.  Jaqua,  114  Ind. 
246,  15  N.  E.  242,  withdrawing  opin- 
ion in  14  N.  E.  559;  Bennison  v.  City 
of  Galveston,  18  Tex.  Civ.  App.  20, 
44  S.  W.  613. 

573  Williams  v.  Mecartney,  69  Cal. 
556. 


57*  Sullivan  v.  Mier,  67  Cal.  264; 
First  Presbyterian  Church  v.  City  of 
Lafayette,  42  Ind.  115. 

575  Hancock    v.    Bowman,    49    Cal. 
413;  Wood  v.  Brady,  68  Cal.  78;  Rob- 
inson v.  Merrill,  87  Cal.  11.    In  such 
an  action  the  burden  of  proof  is  up- 
on the  plaintiff  to  show  that  defend- 
ants   were    the    owners    of    proper- 
ty.    City   of   Chicago   v.   Rosenfeld, 
24  111.  495.     All  parties  may  contest 
an    assessment    under    §    43    of   the 
amended  charter  of  Chicago.    Barber 
Asphalt  Pav.  Co.  v.  Young,  94  Mo. 
App.  204,  68  S.  W.  107,  1115. 

576  Doane  v.  Houghton,  75  Cal.  360, 

17  Pac.  426.    Want  of  jurisdiction  it 
is  held  in  this  case,  is  a  matter  of 
defense,  and  the  complaint  need  not 
state  any  of  the  proceedings  prior 
to  the  issuance  of  the  assessment. 
Himmelman  v.  Danos,  35  Cal.  441; 
Himmelmann   v.    Spanagel,    39    Cal. 
389;  City  of  Santa  Barbara  v.  Huse, 
51  Cal.  217.     It  is  necessary  to  al- 
lege in  such  an  action  that  the  de- 
fendant owns  the  lot,  and,  if  it  is 
denied,  prove  it.    California  Imp.  Co. 
v.  Reynolds,  123  Cal.  88;   Spades  v. 
Phillips,  9  Ind.  App.  487,   37  N.  E. 
297.     The  proper  qualifications  of  a 
board  of  public  works  need  not  be 
alleged.    Lewis  v.  Albertson,  23  Ind. 
App.   147,   53   N.   E.   1071;    Clark  v. 
City  of  Worcester,  167  Mass.  81;  City 
of  Philadelphia  v.  Stevenson,  132  Pa. 
103;  Bennison  v.  City  of  Galveston, 

18  Tex.  Civ.  App.  20. 

577  Manning  v.  Den  (Cal.)  24  Pac. 


954 


PUBLIC  REVENUES. 


§   393 


to  collect  a  delinquent  assessment,  it  is  generally  proper  to  in- 
clude all  necessary  expenses,  including  an  attorney's  fee,  in  the 
amount  made  a  lien  upon  the  property,579  and  where  an  assess- 
ment is  a  general  lien  upon  specific  property,  the  payment  of  less 
than  the  full  amount  will  not  release  any  portion  of  or  interest 
in  said  property  from  the  lien.580 

§  393.    Same  subject;  summary  proceedings. 

A  special  assessment  is  usually  made,  by  statute,  a  statu- 
tory lien  upon  the  property  charged.  No  action  is  then  nec- 
essary in  the  ordinary  sense  of  the  word  and  as  used  in  the 


1092.  The  admission  of  unnecessary 
evidence  is  harmless  error.  King  v. 
Lamb,  117  Cal.  401,  49  Pac.  561; 
Harney  v.  McLeran,  66  Cal.  34; 
Buckman  v.  Landers,  111  Cal.  347; 
Bernstein  v.  Downs,  112  Cal.  197; 
Kenny  v.  Kelly,  113  Cal.  364;  Gage 
v.  People,  163  111.  39.  If  the  improve- 
ment is  of  a  different  character  from 
that  ordered  to  be  made,  this  can 
be  shown.  Darnell  v.  Keller,  18  Ind. 
App.  103,  45  N.  E.  676.  That  work 
was  not  done  according  to  the  con- 
tract is  a  matter  of  defense  in  an  ac- 
tion to  enforce  the  lien  of  a  munici- 
pal assessment  for  a  local  improve- 
ment. Bozarth  v.  McGillicuddy,  19 
Ind.  App.  20,  47  N.  E.  397,  448  N.  E. 
1042;  Barrett  v.  Falls  City  Artificial 
Stone  Co.,  21  Ky.  L.  R.  669,  52  S.  W. 
947;  Caldwell  v.  Cornell,  21  Ky.  L. 
R.  812,  53  S.  W.  35;  Richardson  v. 
Mehler,  23  Ky.  L.  R.  917,  63  S.  W. 
957;  City  of  Nevada  v.  Morris,  43 
Mo.  App.  586;  Smith  v.  Allegheny, 
92  Pa,  110;  City  of  Philadelphia  v. 
Eddleman,  169  Pa.  452;  City  of  Al- 
toona  v.  Bowman,  171  Pa.  307; 
Breath  v.  City  of  Galveston  (Tex. 
Civ.  App.)  46  S.  W.  903.  The  ad- 
mission of  unnecessary  evidence  is 
harmless  error. 

678  Brady    v.    Kelly,    52    Cal.    371; 


Diggins  v.  Reay,  54  Cal.  525;  Dris- 
coll  v.  Howard,  63  Cal.  438;  City 
Street  Imp.  Co.  v.  Babcock  (Cal.) 
68  Pac.  584;  Brown  v.  City  of  Joliet, 
22  111.  123.  A  general  judgment  for 
the  assessment  cannot  be  enforced; 
it  should  be  special  and  directed 
against  the  specific  lots  or  lands  as- 
sessed. Bitzer  v.  O'Bryan,  21  Ky. 
L.  R.  1307,  54  S.  W.  951;  City  of 
Hannibal  v.  Richards,  35  Mo.  App. 
15;  State  v.  City  of  La  Crosse,  101 
Wis.  208,  77  N.  W.  167.  The  city  of 
La  Crosse  is  the  moving  party  in 
proceedings  for  laying  a  sewer  and 
is  bound  to  maintain  the  validity  of 
an  assessment  levied  to  pay  its  cost. 

579  Reid  v.  Clay,  134  Cal.  207,  66 
Pac.  262;  Gillis  v.  Cleveland,  87  Cal. 
214;  Palmer  v.  Nolting,  13  Ind.  App. 
581,  41  N.  E.  1045;  Indiana  Bond 
Co.  v.  Jameson,  24  Ind.  App.  8,  56 
N.  E.  37;  City  of  Seattle  v.  Whit- 
worth,  18  Wash.  126. 

sso  Williams  v.  Bergin,  127  Cal. 
578;  Hoke  v.  City  of  Atlanta,  107 
Ga.  416;  City  Council  of  Augusta  v. 
Murphey,  79  Ga.  101;  Rosenberg  T. 
Freeman,  53  Hun,  629,  5  N.  Y.  Supp. 
891;  Penwarden  v.  Dunellen  Bor- 
ough Com'rs,  50  N.  J.  Law,  565; 
Heath  v.  McCrea,  20  Wash.  342. 


§   393  SPECIAL  ASSESSMENTS.  955 

preceding  section;  but  upon  the  special  assessment,  or  any  in- 
stallment becoming  delinquent,  the  state  or  the  individual,  if 
given  the  right  of  collection,  has  the  power,  upon  complying  with 
the  provisions  of  the  statute  in  respect  to  publication  and  other 
conditions,  to  enforce  the  statutory  lien  by  a  sale  of  the  premises 
against  which  the  special  assessment  is  a  charge.581  The  statute  of 
limitations  may  by  special  provision  operate  as  against  the  en- 
forcement of  this  right  when  not  exercised  within  a  specific  time,582 
or  the  right  may  be  included  under  other  statutory  conditions 
described  in  the  ordinary  statutes  of  limitation.583  In  either 
case  the  statute  commences  to  run  only  from  the  time  a  valid 
assessment  for  street  improvements  has  been  made,5*4  and  not 
during  the  pendency  of  such  proceedings.585  The  general  prin- 
ciples of  the  law  of  taxation  applying  to  the  enforcement  of  a 

581  School    Dist   of   Ft.    Smith   v.  Porter,   89   Mo.  App.  150;    Bonte  v. 
Board  of  Improvement,  65  Ark.  343,  Taylor,    24    Ohio    St.    628;    State    v. 
46  S.  W.  418;    Ellis  v.  Witmer,  134  City  of  Columbia   (Tenn.  Ch.  App.) 
Cal.    249,    66    Pac.    301;    Ramish    v.  52  S.  W.  511. 

Hartwell,    126    Cal.   443;    Noonan  v.        sss  Kansas  City  v.  Gray,   62  Kan. 

People,  183  111.  52;  O'Brien  v.  Brad-  198,   61  Pac.  746;    Kirwin  v.  Nevin, 

ley,  28  Ind.  App.  487,  61  N.  E.  942;  23  Ky.  L.  R.  947,  64  S.  W.  647;  Eys- 

Sanger  v.  Rice,  43  Kan.  580;  City  of  sell   v.   City   of   St.   Louis,   168   Mo. 

Covington  v.  Worthington,  11  Ky.  L.  607,  68  S.  W.  893;   Adkins  v.  Case, 

R.  141,  10  S.  W.  790,  11  S.  W.  1038;  81  Mo.  App.  104;    Council  v.  Moya- 

City  of  Baltimore  v.  Ulman,  79  Md.  mensing,  2  Pa.  224;  City  of  Ballard 

469,  30  Atl.   43;    City  of  Clinton  v.  v.   West   Coast   Imp.   Co.,   15  Wash. 

Henry   County,   115   Mo.    557;    State  572;  Krutz  v.  Gardner,  25  Wash.  396, 

v.  Irey,  42  Neb.  186;  Poillon  v.  Brun-  65  Pac.  771;  Levy  v.  Wilcox,  96  Wis. 

ner,  66  N.  J.  Law,  116,  48  Atl.  531;  127,  70  N.  W.  1109. 
City    of   Bonham   v.    Preston    (Tex.        584  Ferine  v.  Forbush,  97  Cal.  305; 

Civ.  App.)  23  S.  W.  391.    A  munici-  Steinmuller  v.  Kansas  City,  3  Kan. 

pality  may  have  a  choice  of  reme-  App.  45,  44  Pac.  600;  Cooper  v.  Nev- 

dies.     Lockhart  v.  City  of  Houston,  in,    90   Ky.    85;    Redick   v.    City   of 

45  Tex.  317.  Omaha,  35  Neb.  125;   City  of  Phila- 

582  Dougherty  v.  Henarie,  47  Cal.  delphia  v.  Unknown  Owner,  149  Pa. 
9;  Williams  v.  Bergin,  116  Cal.  56;  22;     State    v.    City    of    Ballard,    16 
Lewis  v.   City  of  Seattle,  28  Wash.  Wash.  418;  Bowman  v.  City  of  Col- 
639,  69  Pac.  393;   Eagle  Mfg.  Co.  v.  fax,  17  Wash.  344,  49  Pac.  551;  Fogg 
City  of  Davenport,  101  Iowa,  493,  38  v.  Town  of  Hoquiam,  23  Wash.  340, 
L.  R.  A.  480;  Folks  v.  Yost,  54  Mo.  63  Pac.  234. 

App.  55;  Adkins  v.  Case,  81  Mo.  sss  in  re  Brown,  14  Daly  (N.  Y.) 
App.  104;  Security  Sav.  Trust  Co.  v.  103;  Pardridge  v.  Village  of  Hyde 
Donnell,  81  Mo.  App.  147;  West  v.  Park,  131  111.  537,  23  N.  E.  345. 


956 


PUBLIC  REVENUES. 


393 


statutory  lien  for  delinquent  taxes  as  to  notice,588  the  manner  of 
publication,687  the  time  and  manner  of  sale,  apply  here.588  Rights 
and  remedies  given  in  connection  with  the  statutory  lien  or  the 
collection  of  a  special  assessment  through  summary  proceedings 
are  construed  with  greater  strictness  than  those  which  relate  to 
the  collection  through  an  action  where  the  owner  of  property  is 
afforded  a  greater  degree  of  protection.589  Provisions  for  re- 
demption, however,  are  liberally  construed.590 


sse  Greenstreet  v.  Thornton,  60 
Ark.  369,  27  L.  R.  A.  735.  In  the 
foreclosure  of  an  assessment  lien, 
general  notice  is  only  authorized 
where  the  owner  of  property  is  un- 
known and  this  fact  alleged  in  the 
complaint.  Hellman  v.  Shoulters, 
114  Cal.  136;  Montford  v.  Allen,  111 
Ga,  18;  Illinois  Cent.  R.  Co.  v.  Peo- 
ple, 189  111.  119,  59  N.  E.  609;  Boyn- 
ton  v.  People,  166  111.  64;  London 
&  N.  W.  American  Mortg.  Co.  v. 
Gibson,  77  Minn.  394,  80  N.  W.  205, 
777;  Ferguson  v.  Quinn,  123  Pa. 
337. 

587Barnett  v.  Wolf,  70  111.  76; 
Harris  v.  Lester,  80  111.  307;  Hertig 
v.  People,  159  111.  237.  "Appellant 
claims  that  the  matters  set  forth  in 
the  certificate  of  publication  filed  in 
the  confirmation  proceedings  are 
false  and  the  certificate  therefore  in- 
sufficient. At  the  hearing  of  this 
cause  he  called  one  B.  McWilliams, 
in  order  to  prove  by  him  that  be- 
tween the  dates,  February  3  and 
February  9,  1893,  the  dates  within 
which  the  certificate  of  publication 
alleged  the  notice  to  have  been  pub- 
lished, no  notice  appeared  in  the 
files  of  the  Chicago  Mail.  The  court 
on  appellee's  objection  refused  to 
hear  such  testimony.  In  this  the 
court  did  not  err.  The  proper  time 
to  have  tendered  such  testimony 
was  at  the  hearing  of  the  confirma- 
tion proceeding.  As  it  was,  the  of- 


fer came  too  late;  for  this  is  a 
collateral  proceeding  in  which  it  is 
sought  to  attack  the  jurisdiction  of 
the  court  to  render  the  judgment. 
In  the  record  of  the  confirmation 
proceeding  there  appeared  a  certifi- 
cate which  was  sufficient  if  true; 
and  the  judgment  recited  that  the 
facts  alleged  in  such  certificate  were 
true.  Consequently,  it  will  be  as- 
sumed that  the  court  had  sufficient 
evidence  before  it  to  warrant  the 
rendering  of  judgment.  Even  were 
the  certificate  in  fact  insufficient,  ap- 
pellant could  take  no  advantage  of 
it,  in  this,  a  collateral  proceeding; 
for  in  such  a  case  the  presumption 
would  be  that  the  court  heard  and 
acted  upon  other  and  sufficient  evi- 
dence to  sustain  the  finding." 

sss  Brumby  v.  Harris,  107  Ga.  257, 
33  S.  E.  49.  A  sale  can  be  had  only 
of  the  property  upon  which  the  as- 
sessment is  charged.  City  of  Law- 
rence v.  Killam,  11  Kan.  499.  The 
fact  that  the  contract  was  improper- 
ly let  to  a  partnership  composed  of 
a  member  of  the  city  council  and 
authorities  is  not  a  sufficient  reason 
to  have  the  sale  set  aside  and  a  tax 
deed  enjoined.  State  v.  Taylor,  59 
Md.  338;  Whittaker  v.  City  of  Dead- 
wood,  12  S.  D.  608;  Felker  v.  City 
of  New  Whatcom,  16  Wash.  178. 

689Lyon  v.  Alley,  130  U.  S.  177; 
Hills  v.  City  of  Chicago,  60  111.  86; 
Nicholes  v.  People,  171  111.  376; 


§  394 


SPECIAL  ASSESSMENTS. 


957 


§  394.    Time  of  collection. 

The  right  of  the  public  corporation  or  an  individual  to  collect 
a  special  assessment  is  usually  dependent  upon  the  completion 
of  the  work;  the  reason  for  the  rule  being  self-evident.591  Stat- 
utory or  charter  provisions  may  direct  the  payment  of  the  as- 
sessment in  equal  installments  distributed  over  a  term  of  years,592 
this  being  done  to  lighten  the  burden  of  the  property  owner,  as 
the  cost  of  a  local  improvement  is  usually  heavy  in  proportion 
to  the  value  of  property. 


Buell  v.  Ball,  20  Iowa,  282;  Wain 
v.  Common  Council  of  Beverly,  53  N. 
J.  Law,  560;  Merchants'  Realty  Co. 
v.  City  of  St.  Paul,  77  Minn.  343, 
79  N.  W.  1040. 

590  Martin's  Ex'x  v.  Slaughter,  20 
Ky.  L.  R.  1743,  50   S.  W.  27.     The 
rule  especially  relates  to  provisions 
for  redemption  by  the  property  own- 
er from  sale.     See,  also,  as  holding 
the  same,  Johnston  v.  City  of  Louis- 
ville, 74  Ky.  (11  Bush)  527. 

People  v.  Bleckwenn,  126  N.  Y. 
310,  27  N.  E.  376,  affirming  58  Hun, 
609,  13  N.  Y.  Supp.  487;  Nelson  v. 
Bleckwenn,  137  N.  Y.  565;  Gault's 
Appeal,  33  Pa.  94;  City  of  San  An- 
tonio v.  Berry,  92  Tex.  319,  48  S. 
W.  496. 

591  Sargent    v.    Tuttle,    67    Conn. 
162,  32  L.  R.  A.  822;  Jones  v.  Schul- 
meyer,  39  Ind.  119;   Adams  v.  City 
of  Shelbyville,  154  Ind.  467,  57  N.  E. 
114,    49   L.   R.   A.   797.     Under   the 
Barrett   Law,   the  assessment   after 
being    ascertained    by    the    method 
prescribed  in  §§  6  and  7,  its  lien  re- 
lates back  to  the  time  of  ordering 
the  improvement.    Hibben  v.  Smith, 
158   Ind.  206,   62  N.  E.  447;    Felker 
v.  City  of  New  Whatcom,  16  Wash. 
178.     The    completion    of    a    street 
improvement  is  not  necessary  to  a 
valid  sale  in  the  absence  of  a  charter 
provision  requiring  it.    But  see  Law- 
rence v.  People,  188  111.  407,  58  N.  E. 


991,  as  holding  to  the  contrary. 

592  Sanders  v.  Brown,  65  Ark.  498, 
47  S.  W.  461.  The  full  amount  of 
the  improvement  assessment,  how- 
ever, becomes  a  lien  upon  the  prop- 
erty which  can  only  be  satisfied  by 
a  payment  of  the  full  amount. 
English  v.  City  of  Danville,  150  111. 
92,  36  N.  E.  994;  Lightner  v.  City 
of  Peoria,  150  111.  80,  37  N.  E.  69; 
People  v.  City  of  Chicago,  152  111. 
546;  Merriam  v.  People,  160  111.  555; 
Culver  v.  People,  161  111.  89;  City 
of  Charleston  v.  Cadle,  166  111.  487; 
Andrews  v.  People,  173  111.  123; 
Murray  v.  City  of  Chicago,  175  111. 
340;  Gross  v.  Village  of  Grossdale, 
176  111.  572;  Phelps  v.  City  of  Mat- 
toon,  177  111.  169;  Wayne  County 
Sav.  Bank  v.  Gas  City  Land  Co.,  156 
Ind.  662,  59  N.  E.  1048;  Talcott  v. 
Noel,  107  Iowa,  470,  78  N.  W.  39; 
District  of  Clifton  v.  Schneider,  21 
Ky.  L.  R.  212,  51  S.  W.  13;  State 
v.  District  Ct.  of  St.  Louis  County, 
68  Minn.  147;  Makley  v.  Whitmore, 
61  Ohio  St.  587,  56  N.  E.  461;  Ger- 
man-American Sav.  Bank  v.  City  of 
Spokane,  17  Wash.  315,  47  Pac.  1103, 
49  Pac.  542,  38  L.  R.  A.  259.  But  an 
arrangement  for  a  payment  in  in- 
stallments cannot  be  made  when  the 
contract  calls  for  immediate  pay- 
ment of  the  amount  due  to  the  con- 
tractor. 


958 


PUBLIC  REVENUES. 


395 


§  395.    The  rights  of  property  owners. 

The  property  owner  has  the  right,  either  through  an  appeal 
in  a  court  of  law,593  or  through  the  aid  of  a  court  of  equity,594 


593  Dodd  v.  City  of  Hartford,  25 
Conn.  232;  Trustees  of  Hazelgreen 
v.  McNabb,  23  Ky.  L.  R.  811,  64  S. 
W.  431;  Bagg  v.  City  of  Detroit,  5 
Mich.  336;  Bergen  County  Sav.  Bank 
v.  Inhabitants  of  Union,  44  N.  J. 
Law,  599.  Laches  in  bringing  a  writ 
of  certiorari  to  review  an  assessment 
will  result  in  its  dismissal.  Meier 
v.  Kelly,  20  Or.  86,  25  Pac.  73. 

so*  Ogden  City  v.  Armstrong,  168 
U.  S.  224.  In  a  suit  to  restrain  the 
collection  of  a  special  assessment  the 
affirmative  finding  of  jurisdictional 
facts  by  a  city  council  is  not  con- 
clusive. Lyon  v.  Town  of  Tonawan- 
da,  98  Fed.  361;  Byrne  v.  Drain,  127 
Cal.  663.  The  ground  of  multiplici- 
ty of  suits  is  not  available  in  an  ap- 
plication for  an  injunction  to  re- 
strain the  collection  of  a  city  street 
assessment,  and  the  court  also  holds 
that  since  a  sale  under  a  void  city 
street  assessment  causes  no  cloud  on 
the  title  neither  is  this  ground 
available. 

Fenwick  Hall  Co.  v.  Town  of  Old 
Saybrook,  69  Conn.  32;  Murphey  v. 
City  of  Wilmington,  5  Del.  Ch.  281; 
Wilson  v.  Boise  City,  7  Idaho,  69, 
60  Pac.  84.  An  injunction  will  not 
issue  to  restrain  a  sale  where  it  has 
already  taken  place.  McBride  v. 
City  of  Chicago,  22  111.  574;  City  of 
Bloomington  v.  Blodgett,  24  111.  App. 
650.  An  injunction  will  not  be 
granted  where  there  is  an  adequate 
remedy  at  law.  Hewes  v.  Village  of 
Winnetka,  60  111.  App.  654.  To 
warrant  an  injunction  to  restrain  the 
collection  of  a  special  assessment,  it 
is  necessary  to  show  not  only  lack  of 
notice  to,  but  no  knowledge  of  the 


improvement  by,  the  property  own- 
er. 

City  of  Indianapolis  v.  Gilmore,  30 
Ind.  414.  A  sufficient  cause  of  ac- 
tion for  trespass  is  not  available  in 
an  application  for  an  injunction  to 
restrain  the  collection  of  a  street  as- 
sessment. De  Puy  v.  City  of  Wa- 
bash,  133  Ind.  336.  The  manner  in 
which  work  was  performed  is  not  a 
jurisdictional  question  and  there- 
fore cannot  be  considered  in  an  ac- 
tion to  enjoin  the  levy  of  an  assess- 
ment made  for  street  improvements. 
City  of  Topeka  v.  Gage,  44  Kan.  87, 
24  Pac.  82.  But  the  right  of  the 
property  owner  will  be  lost  if  no  ac- 
tion is  taken  by  him  within  the  time 
fixed  by  law.  The  same  is  held  in 
Lynch  v.  Kansas  City,  44  Kan.  452. 

Hammerslough  v.  Kansas  City,  46 
Kan.  37,  26  Pac.  496;  Kansas  City  v. 
Kimball,  60  Kan.  224,  56  Pac.  78; 
Andrews  v.  Love,  50  Kan.  701;  Hol- 
land v.  City  of  Baltimore,  11  Md. 
186;  City  of  Baltimore  v.  Porter,  18 
Md.  284;  Minnesota  Linseed  Oil  Co. 
v.  Palmer,  20  Minn.  468  (Gil.  424); 
Harmon  v.  City  of  Omaha,  53  Neb. 
164,  73  N.  W.  671;  Liebstein  v.  City 
of  Newark,  24  N.  J.  Eq.  (9  C.  E. 
Green)  200.  Equity  will  entertain 
an  application  for  relief  against  an 
erroneous  assessment  where  its  en- 
forcement would  lead  to  a  multiplici- 
ty of  suits,  would  produce  irrepara- 
ble injury,  or  where  on  the  face  of 
the  proceedings  it  is  valid  and  in- 
trinsic evidence  is  required  to  show 
its  invalidity. 

Van  Doren  v.  City  of  New  York,  9 
Paige  (N.  Y.)  388;  In  re  Bridgford, 
65  Hun,  227,  20  N.  Y.  Supp.  281; 


395 


SPECIAL  ASSESSMENTS. 


959 


to  have  restrained  the  collection  of  a  void  assessment.  A  dis- 
tinction in  this  respect  must  be  made  between  such  a  right 
based  upon  an  assessment  utterly  void  for  want  of  jurisdictional 
conditions595  or  one  irregularly  made.  As  to  the  latter,  the  courts 


Masterson  v.  Hoyt,  55  Barb.  (N.  Y.) 
520;  Hassan  v.  City  of  Rochester,  67 
N.  Y.  528;  Boyle  v.  City  of  Brooklyn, 
71  N.  Y.  1;  Dederer  v.  Voorhies,  81 
N.  Y.  153;  Tifft  v.  City  of  Buffalo, 
130  N.  Y.  695;  Billiard  v.  City  of 
Asneviile,  118  N.  C.  845,  ?1  S.  E.  738; 
Oregon  &  C.  R.  Co.  v.  City  of  Port- 
land, 25  Or.  229,  22  L.  R.  A.  71.3; 
Halsch  v.  City  of  Seattle,  10  Wash. 
435;  Kline  v.  City  of  Tacoma,  11 
Wash.  193.  Wilson  v.  Town  of  Phil- 
ippi,  39  W.  Va.  75,  19  S.  E.  553.  An 
illegal  assessment  is  not  such  a  cloutf 
on  the  title  of  a  lot  as  to  confer  equi- 
table jurisdiction  to  restrain  its  col- 
lection. Jenkins  v.  Rock  County 
Sup'rs.  15  Wis.  11:  Cook  v.  City  of 
Racine,  49  Wis.  243. 

But  see  the  following  cases  as 
holding  that  a  court  of  equity  will 
not  interfere  to  restrain  by  injunc- 
tion the  collection  or  an  assessment 
for  street  improvements  levied  by  a 
city  within  the  authority  granted  by 
its  charter:  City  of  Peoria  v.  Kid- 
der,  26  111.  351;  Jackson  v.  City  of 
Detroit,  10  Mich.  248;  Motz  v.  City  of 
Detroit,  18  Mich.  495;  Harper  v.  City 
of  Grand  Rapids,  105  Mich.  551;  Bud- 
decke  v.  Ziegenhein,  122  Mo.  239; 
Wilson  v.  City  of  Auburn,  27  Neb. 
435;  Jones  v.  City  of  Newark,  11  N. 
J.Eq.  (3  Stockt.)  452;  Hoffeld  v.  City 
of  Buffalo,  130  N.  Y.  387;  Warner  v. 
Knox,  50  Wis.  4^9. 

Equity  will  also  afford  a  property 
owner  relief  against  an  assessment 
practically  valid  on  its  face  and  be- 
cause of  this  constituting  a  cloud  on 
his  title.  Bolton  v.  Gilleran,  105  Cal. 
244;  Ankeny  v.  Palmer,  20  Minn.  477 


(Gil.  413);  Touzalin  v.  City  of  Oma- 
ha, 25  Neb.  817;  Town  of  Albuquer- 
que v.  Zeiger,  5  N.  M.  674;  Guest  v. 
City  of  Brooklyn,  69  N.  Y.  506;  Tifft 
v.  City  of  Buffalo,  130  N.  Y.  695;  Al- 
vord  v.  City  of  Syracuse,  163  N.  Y. 
158. 

595  Zehnder  v.  Barber  Asphalt  Pav. 
Co.,  106  Fed.  103;  Pittsburgh,  C.,  C. 
&  St.  L.  R.  Co.  v.  Fish,  158  Ind.  525, 
63  N.  E.  454;  City  of  Ft.  Wayne  v. 
Shoaff,  106  Ind.  66;  City  of  Terre 
Haute  v.  Mack,  139  Ind.  99;  Chicago, 
M.  &  St.  P.  R.  Co.  v.  Phillips,  111 
Iowa,  377,  82  N.  W.  787;  Bouldin  v. 
City  of  Baltimore,  15  Md.  18;  City  of 
Manistee  v.  Harley,  79  Mich.  238,  44 
N.  W.  603;  Kelly  v.  City  of  Minneapo- 
lis, 57  Minn.  294,  26  L.  R.  A.  92;  Hen- 
ningsen  v.  City  of  Stillwater,  81  Minn. 
215,  83  N.  W.  983.  A  failure  to  ob- 
ject on  jurisdictional  grounds  within 
the  time  limited  by  law  renders 
void  the  assessment.  Leslie  v.  City 
of  St.  Louis,  47  Mo.  474;  Ives  v.  Irey, 
51  Neb.  136;  Town  of  Albuquerque 
v.  Zeiger,  5  N.  M.  674,  27  Pac.  315; 
Providence  Retreat  v.  City  of  Buffa- 
lo, 29  App.  Div.  160,  51  N.  Y.  Supp. 
654;  Culbertson  v.  City  of  Cincinnati, 
16  Ohio,  574 ;  Gaston  v.  City  of  Port- 
land, 41  Or.  373,  69  Pac.  34,  445;  Phil- 
lips v.  City  of  Sioux  Falls,  5  S.  D. 
524;  Kerr  v.  City  of  Corsicana  (Tex. 
Civ.  App.)  35  S.  W.  694;  Foote  v. 
City  of  Milwaukee,  18  Wis.  270: 
Hayes  v.  Douglas  County,  92  Wis. 
429,  65  N.  W.  482,  31  L.  R.  A.  213; 
Dietz  v.  City  of  Neenan,  91  Wis.  422, 
distinguishing  Hixon  v.  Oneida 
County,  82  Wis.  515. 


900 


PUBLIC  REVENUES. 


396 


usually  hold  that  the  property  owner's  right  to  a  review  and  cor- 
rection is  limited  both  as  to  manner  and  time  by  statutory  pro- 
visions, and  as  stated  in  sections  377  and  381,  if  action  is  not 
taken  by  him  within  the  time  and  in  the  manner  thus  prescribed, 
his  rights  are  lost.898 

§  396.    Personal  liability. 

It  has  been  repeatedly  held  that  a  special  assessment  is  a  charge 
upon  property  not  upon  the  individual,  and  this  principle  has 
given  rise  to  a  great  degree  of  elasticity  in  construing  and  exer- 
cising various  provisions  of  the  law  relative  to  the  property  af- 
fected by  a  special  assessment.597  The  reason  for  this  rule  is  well 
stated  in  the  authorities  cited  in  the  note  and  need  not  be  re- 
peated.598 It  is  within  the  power  of  the  legislature,  however,  to 


see  Parsons  v.  District  of  Colum- 
bia, 170  U.  S.  45;  Williams  v.  Eg- 
gleston,  170  U.  S.  304;  Village  of 
Norwood  v.  Baker,  172  U.  S.  269; 
Strenna  v.  City  Council  of  Montgom- 
ery, 86  Ala.  340,  5  So.  115;  City  of 
Little  Rock  v.  Katzenstein,  52  Ark. 
107;  Crane  v.  City  of  Siloam  Springs, 
67  Ark.  30;  Williams  v.  Bergen 
(Cal.)  57  Pac.  1072;  Ellis  v.  Wit- 
mer,  134  Cal.  249,  66  Pac.  301;  Chase 
v.  City  Treasurer  of  Los  Angeles,  122 
Cal.  540;  State  v.  Williams,  68  Conn. 
131,  48  L.  R.  A.  465;  Village  of  Mor- 
gan Park  v.  Wiswall,  155  111.  262; 
Kirchman  v.  People,  159  111.  265; 
Boynton  v.  People,  159  111.  553; 
Smith  v.  Kochersperger,  180  111.  527; 
Fiske  v.  People,  188  111.  206,  52  L.  R. 
A.  291;  Jackson  v.  Smith,  120  Ind. 
520,  22  N.  E.  431;  Taber  v.  Ferguson, 
109  Ind.  227;  Balfe  v.  Lammers,  109 
Ind.  347;  Bowen  v.  Hester,  143  Ind. 
511;  Wahlgren  v.  Kansas  City,  42 
Kan.  243;  Marshall  v.  City  of  Leav- 
en worth,  44  Kan.  459;  Doran  v. 
Barnes,  54  Kan.  238;  Kansas  City 
v.  Gray,  62  Kan.  198,  61  Pac.  746; 
Inhabitants  of  Leominster  v.  Conant, 
139  Mass.  384;  People  v.  Common 


Council  of  Detroit,  28  Mich.  228; 
Rogers  v.  City  of  St.  Paul,  22  Minn; 
494;  Town  of  Macon  v.  Patty,  57 
Miss.  378;  City  of  Omaha  v.  Kountze, 
25  Neb.  60;  Ives  v.  Frey,  51  Neb.  136; 
In  re  Hazleton,  58  Hun,  112,  11  N. 
Y.  Supp.  557;  Brennan  v.  City  of 
Buffalo,  8  Misc.  178,  29  N.  Y.  Supp. 
750;  Loomis  v.  City  of  Little  Falls, 
66  App.  Div.  299,  72  N.  Y.  Supp.  774; 
City  of  Cincinnati  v.  James,  55  Ohio 
St.  180;  Steffin  v.  Hill,  16  Or.  232; 
Wingate  v.  City  of  Astoria,  39  Or. 
603,  65  Pac.  982;  Wilson  v.  Town  of 
Philippi,  39  W.  Va.  75,  19  S.  E.  553; 
Warner  v.  Knox,  50  Wis.  429;  Glea- 
son  v.  Waukesha  County,  103  Wis. 
225,  79  N.  W.  249;  Pratt  v.  City  of 
Milwaukee,  93  Wis.  658. 

59*  See  authorities  cited  under 
§§  354  and  365;  Escondido  High 
School  Dist.  v.  Escondido  Seminary, 
130  Cal.  128,  62  Pac.  401;  Kelly  v. 
Mendelsohn,  105  La.  490. 

598Cooley,  Taxation  (2d  Ed.)  p. 
674  et  seq.;  Neenan  v.  Smith,  50  Mo. 
528,  Bliss,  J.:  "There  is  a  broad 
distinction,  and  one  of  universal  re«v 
ognition,  between  the  foundation 
upon  which  is  based  the  right  of  geu- 


396 


SPECIAL  ASSESSMENTS. 


961 


make  an  assessment  for  local  improvement  a  personal  charge, 
and  it  might  be  said  that  the  weight  of  authority  in  the  absence 
of  restrictive  legislation  permits  this  to  be  done.599 


eral  taxation  for  governmental  pur- 
poses, and  that  which  supports  the 
right  of  local  assessments.  The  au- 
thority to  impose  either  is  referred 
to  the  taxing  power;  but  the  ob- 
ject of  one,  as  giving  the  authority, 
widely  differs  from  that  of  the  oth- 
er. All  taxation  is  supposed  to  be 
for  the  benefit  of  the  person  taxed. 
That  for  raising  a  general  revenue  is 
imposed  primarily  for  his  protection 
as  a  member  of  society,  both  in  his 
person  and  his  property  in  general, 
and  hsnce  the  amount  assessed  is 
against  him,  to  be  charged  upon  his 
property,  and  may  be  collected  of 
him  personally.  But,  on  the  other 
hand,  local  taxes  for  local  improve- 
ments are  merely  assessments  upon 
the  property  benefited  by  such  im- 
provements, and  to  pay  for  the  bene- 
fits which  they  are  supposed  to  con- 
fer; the  lots  are  increased  in  value, 
or  better  adapted  to  the  uses  of 
town  lots,  by  the  improvement.  Up- 
on no  other  ground  will  such  partial 
taxation  for  a  moment  stand.  Other 
property  held  by  the  owner  is  af- 
fected by  this  improvement  precisely 
and  only  as  is  the  property  of  all 
other  members  of  the  community, 
and  there  is  no  reason  why  it  should 
be  made  to  contribute,  that  does  not 
equally  apply  to  that  of  all  others. 
The  sole  object,  then,  of  a  local  tax 
being  to  benefit  local  property,  it 
should  be  a  charge  upon  that  prop- 
erty only,  and  not  a  general  one  upon 
the  owner.  The  latter,  indeed,  is  not 
what  is  understood  by  local  or  spe- 
cial assessment,  but  the  very  term 
would  confine  it  to  the  property  in 
the  locality;  for,  if  the  owner  be 


personally  liable,  it  is  not  only  a 
local  assessment,  but  also  a  general 
one  -as  against  the  owner.  The  rea- 
sonableness of  this  restriction  will 
appear  when  we  reflect  that  there  is 
no  call  for  a  general  execution  until 
the  property  charged  is  exhausted. 
If  that  is  all  sold  to  pay  the  assess- 
ment, leaving  a  balance  to  be  collect- 
ed otherwise,  we  should  have  the  le- 
gal anomaly — the  monstrous  injus- 
tice— of  not  only  wholly  absorbing 
the  property  supposed  to  be  benefit- 
ed and  rendered  more  valuable  by 
the  improvement,  but  also  of  entail- 
ing upon  the  owner  the  loss  of  his 
other  property.  I  greatly  doubt 
whether  the  legislature  has  the  pow- 
er to  authorize  a  general  charge 
upon  the  owner  of  local  property 
which  may  be  assessed  for  its  espe- 
cial benefit,  unless  the  owners  of  all 
taxable  property  within  the  munici- 
pality are  equally  charged.  As  to  all 
property  not  to  be  so  specially  bene- 
fited, he  stands  on  the  same  footing 
with  others;  he  has  precisely  the 
same  interests,  and  should  be  sub- 
ject to  no  greater  burdens." 

Randolph  v.  Bayue,  44  Cal.  366; 
Dempster  v.  People,  158  111.  36;  Illi- 
nois Cent.  R.  Co.  v.  People,  170  111. 
224;  Gaslight  &  Coke  Co.  v.  City  of 
New  Albany,  158  Ind.  268,  63  N.  B. 
458;  Buell  v.  Ball,  20  Iowa,  282; 
Royce  v.  Town  of  Aplington,  90 
Iowa,  352,  57  N.  W.  868;  Chicago,  R. 
I.  &  P.  R.  Co.  v.  City  of  Ottumwa, 
112  Iowa,  300,  83  N.  W.  1074,  51  L. 
R.  A.  763;  Meyer  v.  City  of  CoTing- 
ton,  20  Ky.  L.  R.  239,  45  S.  W.  769; 
Barker  v.  Southern  Const.  Co.,  20 
Ky.  L.  R.  796,  47  S.  W.  608;  Wood- 


Abb.  Corp.— 61. 


962  PUBLIC  REVENUES.  §  397 

§  397.    Recovery  of  invalid  assessments. 

A  property  owner  may  have  paid  the  whole  or  a  part  of  an 
invalid  assessment,  and  the  question  then  arises  of  his  right  to 
recover.600  That  this  right  exist  it  is  necessary  that  the  payment 


ward  v.  Collett,  20  Ky.  L.  R.  1066, 
48  S.  W.  164;  Fehler  v.  Gosnell,  99 
Ky.  380. 

Rosetta  Gravel,  Pav.  &  Imp.  Co.  v. 
Jollisaint,  51  La.  Ann.  804.  The  en- 
forcement of  a  lien  of  a  special  as- 
sessment is  a  proceeding  in  rem. 
City  of  Shreveport  v.  Prescott,  51 
La.  Ann.  1895,  46  !•.  R.  A.  193;  S. 

D.  Moody  &  Co.  v.  Chadwick,  52  La. 
Ann.   1888;    Wolff  y.  City  of  Balti- 
more, 49  Md.  446;   Moale  v.  City  of 
Baltimore,  61  Md.  224;    City  of  St. 
Louis  v.  De  Noue,  44  Mo.  136;  Vil- 
lage of  Houstonia  v.  Grubbs,  80  Mo. 
App.  433. 

i  Security  Trust  Co.  v.  Von  Heyder- 
staedt,  64  Minn.  409,  67  N.  W.  219. 
A  sale  should  be  had  of  the  property 
charged  and  for  an  amount  not  less 
than  the  full  amount  of  the  judg- 
ment as  appears  in  the  process. 
Trustees  of  Public  Schools  v.  Shot- 
well,  45  N.  J.  Eq.  (18  Stew.)  106; 
Brown's  Estate  v.  Town  of  Union, 
62  N.  J.  Law,  142;  Little  v.  City  of 
Rochester,  87  Hun  (N.  Y.)  493; 
Dreake  v.  Beasley,  26  Ohio  St.  315; 
Nottage  v.  City  of  Portland,  35  Or. 
539;  Pennell's  Appeal,  2  Pa.  216; 
Council  v.  Moyamensing,  2  Pa.  224; 
Higgins  v.  Bordages  (Tex.  Civ. 
App.)  28  S.  W.  350;  Green  v.  Ward, 
82  Va.  324. 

599  Davidson  v.  City  of  New  Or- 
leans, 96  U.  S.  97.  See,  also,  authori- 
ties cited  in  Cooley,  Taxation  (2d 
Ed.)  p.  672,  note  2.  Dodd  v.  City  of 
Hartford,  25  Conn.  232;  Pittsburgh, 
C.,  C.  &  St.  L.  R.  Co.  v.  Hays,  17 
Ind.  App.  261,  44  N.  E.  375,  45  N. 

E.  675,   46   N.   E.   597;    Edward   C. 


Jones  Co.  v.  Perry,  26  Ind.  App.  554, 
57  N.  E.  583;  City  of  Muscatine  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  79  Iowa, 
645,  44  N.  W.  909;  Tuttle  v.  Polk, 
92  Iowa,  433,  60  N.  W.  733;  Dewey 
T.  City  of  Des  Moines,  101  Iowa,  416, 
70  N.  W.  605;  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Peterson,  5  Kan.  App.  103, 
48  Pac.  877;  Bagg  v.  City  of  Detroit, 
5  Mich.  336;  Jaicks  v.  Sullivan,  128 
Mo.  177,  30  S.  W.  890;  Lincoln  St. 
R.  Co.  v.  City  of  Lincoln,  61  Neb. 
109,  84  N.  W.  802;  Lake  Shore  &  M. 
S.  R.  Co.  v.  City  of  Dunkirk,  65 
Hun,  494,  20  N.  Y.  Supp.  596;  Hutch- 
inson  v.  City  of  Rochester,  92  Hun, 
393,  36  N.  Y.  Supp.  766. 

De  Peyster  v.  Murphy,  39  N.  Y. 
Super.  Ct.  (7  J.  &  S.)  255.  Resort 
may  be  had  to  the  land  primarily 
charged  with  the  special  assessment 
or  to  its  owner.  Upon  an  election 
by  the  municipality  the  right  to  fol- 
low the  other  remedy  to  collect  a  de- 
ficiency does  not  exist.  City  of  Itha- 
ca v.  Babcock,  72  App.  Div.  260,  76 
N.  Y.  Supp.  49;  Ivanhoe  v.  City  of 
Enterprise,  29  Or.  245,  35  L.  R.  A. 
58;  Lovenberg4v.  City  of  Galveston, 
17  Tex.  Civ.  App.  162,  42  S.  W.  1024; 
City  of  San  Antonio  v.  Berry,  92 
Tex.  319,  48  S.  W.  496,  modifying 
judgment  in  (Tex.  Civ.  App.)  46  S. 
W.  273. 

eoo  Dexter  r.  City  of  Boston,  176 
Mass.  247.  The  right  to  recover  is 
not  affected  by  the  fact  that  the 
special  assessments  were  added  in 
with  and  collected  at  the  same  time 
as  the  general  taxes.  Strickland  v. 
City  of  Stillwater,  63  Minn.  43;  Me- 
Conville  v.  City  of  St.  Paul,  75  Minn. 


§  397 


SPECIAL  ASSESSMENTS. 


963 


should  have  been  made  under  protest601  or  while  equivalent  pro- 
ceedings are  pending  to  determine  the  validity  of  the  tax.60* 
Payments  made  under  mistake  of  law  cannot  usually  be  recov- 
ered,603 but  this  rule  does  not  apply  to  those  made  under  a 


383,  77  N.  W.  993,  43  L.  R.  A.  584; 
Rogers  v.  City  of  St.  Paul,  79  Minn. 
5,  81  N.  W.  539,  47  L.  R.  A.  537; 
Burchell  v.  City  of  New  York,  56 
Hun,  640,  9  N.  Y.  Supp.  196;  Trim- 
mer v.  City  of  Rochester,  130  N.  Y. 
401,  29  N.  E.  746,  affirming  56  Hun, 
643,  9  N.  Y.  Supp.  695.  The  money 
paid  cannot  be  recovered  until  the 
assessment  is  set  aside.  Landon  v. 
City  of  Syracuse,  19  App.  Div.  41,  46 
N.  Y.  Supp.  1053;  Striker  v.  Striker, 
31  App.  Div.  129,  52  N.  Y.  Supp.  729. 
Moneys  refunded  should  go  to  the 
parties  originally  paying  them,  not 
to  the  owner  of  the  property  upon 
which  they  were  a  charge.  Wallace 
v.  City  of  New  York,  53  App.  Div. 
187,  65  N.  Y.  Supp.  855,  affirmed  in 
165  N.  Y.  658,  59  N.  E.  1132;  People 
v.  Molloy,  161  N.  Y.  621.  City  of 
San  Antonio  v.  Peters  (Tex.  Civ. 
App.)  40  S.  W.  827.  The  right  to 
recover  an  assessment  already  paid 
exists  where  the  improvement  to 
pay  the  cost  of  which  it  is  levied 
is  abandoned. 

«»i  Phelan  v.  City  &  County  of 
San  Francisco,  120  Cal.  1,  52  Pac. 
38;  Gill  v.  City  of  Oakland,  124  Cal. 
335;  Hoke  v.  City  of  Atlanta,  107 
Ga.  416,  33  S.  E.  412.  A  voluntary 
payment  though  under  protest  can- 
not be  recovered.  Hawkeye  Loan  & 
Brokerage  Co.  v.  City  of  Marion, 
110  Iowa,  468,  81  N.  W.  718;  City 
of  Omaha  v.  Kountz,  25  Neb.  60,  40 
N.  W.  597.  The  following  protest 
held  insufficient:  "Truman  Buck, 
Treasurer:  I  this  day  pay  you,  un- 
der protest,  |2,181.23,  for  special 
grading  tax  on  property  fronting  on 
Fifteenth  street,  south  of  Williams 


street.  This  is  paid  to  save  penalty; 
and,  as  it  is  believed  that  the  tax  is 
illegal,  I  shall  collect  the  same  back. 
Augustus  Kountz."  Chase  v.  City 
of  New  York,  23  App.  Div.  322,  48  N. 
Y.  Supp.  333;  Palmer  v.  City  of  Syra- 
cuse, 26  Misc.  561,  57  N.  Y.  Supp. 
600;  In  re  Hughes,  93  N.  Y.  512; 
Phelps  v.  City  of  New  York,  112  N. 
Y.  216,  2  L.  R.  A.  626;  Peebles  v. 
City  of  Pittsburgh,  101  Pa.  304. 

«02  Keehn  v.  McGillicuddy,  19  Ind. 
App.  427,  49  N.  E.  609.  The  syllabus 
epitomizing  the  decision  follows: 
"Where  a  lot  has  been  sold  on  fore- 
closure of  an  assessment  lien  for 
street  improvements,  and  the  owner 
redeems  the  property  to  avoid  los- 
ing title  pending  a  suit  by  him  to 
have  such  judgment  declared  void, 
the  payment  of  the  money  necessary 
to  redeem  is  not  voluntary  and  he 
may  recover  it  back  on  the  judg- 
ment being  adjudged  void."  Citing 
Lafayette  &  I.  R.  Co.  v.  Pattison,  41 
Ind.  312;  Gable  v.  Seiben,  137  Ind. 
155. 

Jersey  City  v.  Green,  42  N.  J.  Law, 
627;  Brehm  v.  City  of  New  York,  104 
N.  Y.  186. 

«°3  Brands  v.  City  of  Louisville, 
23  Ky.  L.  R.  442,  63  S.  W.  2.  "Re- 
duced to  its  last  analysis,  the  case 
comes  to  this:  The  city  assessed 
against  the  appellants'  property  for 
the  improvement  of  the  street  in 
front  of  it  an  amount  larger  by  ten 
per  cent  than  it  should  have  as- 
sessed. If  a  recovery  can  be  had  in 
this  case,  then  one  may  be  had  in 
every  case  where  the  burden  ia 
wrongfully  apportioned  although  the 
assessment  has  been  voluntarily 


964 


PUBLIC  REVENUES. 


§   397 


misapprehension  of  facts.604  And  it  is  also  true  that  the  prop- 
erty owner  may  be  estopped  by  laches605  or  his  conduct006  from 
asserting  his  right.  An  action  for  this  purpose  must  be  brought 
against  the  proper  public  organization,  namely,  that  one  receiv- 
ing the  moneys  in  the  first  instance  and  later  distributing 
them.607  One  brought  against  the  officials  or  organization,  hav- 


paid.  Such  a  rule  would  involve  the 
city  government  in  inextricable  con- 
fusion. The  council  could  not  know 
what  liabilities  might  be  anticipated 
or  what  taxes  should  be  levied.  Un- 
der the  constitution  the  levy  of  taxes 
must  specify  the  purpose  for  which 
the  tax  is  to  be  used,  and  a  tax  lev- 
ied for  one  purpose  cannot  be  applied 
to  another.  The  reason  for  the  rule 
denying  a  recovery  of  taxes  volun- 
tarily paid  is,  after  all,  the  security 
and  efficiency  of  the  city  govern- 
ment; and  every  reason  which  for- 
bids the  recovery  of  municipal  taxes 
that  have  been  voluntarily  paid 
seems  to  us  to  apply  with  equal  force 
to  assessments  for  municipal  im- 
provements. The  city  is  required  to 
make  the  apportionment.  If  an  er- 
ror is  made  it  is  the  duty  of  the 
property  owner,  no  less  than  the  city 
officials  to  detect  and  correct  it.  If, 
instead  of  doing  this,  he  voluntarily 
pays  the  assessment,  and  the  city 
makes  other  contracts  and  assumed 
other  obligations  on  the  idea  that 
these  matters  are  all  settled,  it  seems 
to  us  that  sound  public  policy  re- 
quires the  loss  to  fall  on  the  tax- 
payer who  has  acquiesced  in  the  as- 
sessment and  voluntarily  paid  the 
money  rather  than  litigate  the 
right."  McCann  v.  City  of  Louis- 
ville, 23  Ky.  L.  R.  558,  63  S.  W.  446; 
Palmer  v.  City  of  Syracuse,  26  Misc. 
561,  57  N.  Y.  Supp.  600;  Hubbard  v. 
City  of  Hickman,  67  Ky.  (4  Bush) 
204;  Moore  v.  Bath  County  Ct.,  70 
Ky.  (7  Bush)  177. 


6°*  City  of  Indianapolis  v.  Patter- 
son, 112  Ind.  344,  14  N.  E.  551. 

eos  Ritchie  v.  City  of  South  To- 
peka,  38  Kan.  368;  Byram  v.  City  of 
Detroit,  50  Mich.  56;  Lundbom  v. 
City  of  Manistee,  93  Mich.  170,  53 
N.  W.  161. 

coo  Jackson  v.  City  of  Detroit,  10 
Mich.  248;  State  v.  Ramsey  County 
Dist.  Ct.,  40  Minn.  5.  "In  this  in- 
stance the  relator  with  actual  no- 
tice of  the  assessment,  voluntarily 
paid  it,  thereby  expressing  her  satis- 
faction with  and  acquiescence  in  it. 
Having  done  this  and  the  city  hav- 
ing subsequently  gone  on  and  im- 
proved her  property,  *  *  *  she 
cannot  now  be  heard  to  resist  the  as- 
sessment. *  *  *  It  is  fallacious 
to  say  that  because  the  board  assess- 
ed her  damages  at  nothing,  therefore 
there  was  only  an  assessment  of  ben- 
efits and  that  this  was  all  that  she 
acquiesced  in.  It  was  immaterial 
whether  they  assessed  the  damages 
at  nothing  and  the  benefits  at  $40  or 
the  damages  at,  say,  $50  and  the 
benefits  at  $90.  Equally  in  either 
case  there  would  be  an  assessment  of 
both  damages  and  benefits,  and  the 
difference  would  be  the  amount  pay- 
able; and  by  voluntarily  paying  the 
balance  the  relator  as  fully  assented 
to  the  assessment  of  her  damages  at 
nothing  as  she  did  to  the  assessment 
of  her  benefits  at  $40. 

«OT  Davis  v.  City  &  County  of  San 
Francisco,  115  Cal.  67;  Gill  v.  City 
of  Oakland,  124  Cal.  335;  Hawkeye 
Loan  &  Brokerage  Co.  v.  City  of 


8  397 


SPECIAL  ASSESSMENTS. 


965 


ing  in  possession  at  that  time  the  moneys  in  question,  will  be 
insufficient  if  the  principle  stated  in  the  preceding  sentence  is 
recognized.608  The  mere  fact  that  the  property  owner  may  have 
been  benefited  by  the  improvement  as  constructed  will  not  de- 
feat his  right  to  recover  a  void  assessment  if  other  required 
conditions  exist.608  The  right  to  recover  an  assessment  void  be- 
cause of  jurisdictional  conditions  exists  independent  of  the  re- 
quirements suggested  in  this  section.810 


Marion,  110  Iowa,  468,  81  N.  W.  718; 
Anderson  v.  Hill,  54  Mich.  477;  Trip- 
ler  v.  City  of  New  York,  63  Hun, 
630,  17  N.  Y.  Supp.  750.  The  burden 
of  proof  is  upon  the  plaintiff  in  such 
case  to  prove  the  illegality  of  the 
assessment.  Fish  v.  Higbee,  22  R.  I. 
223,  47  Atl.  212. 

«o«  Easterbrook  v.  City  &  County  of 
San  Francisco  (Cal.)  44  Pac.  800, 
citing  Liebman  v.  City  &  County  of 
San  Francisco,  11  Sawy.  147,  24  Fed. 
705;  Elberg  v.  San  Luis  Obispo  Coun- 
ty, 112  Cal.  316,  41  Pac.  475,  44  Pac. 
572;  Pacific  Mut.  L.  Ins.  Co.  v.  San 
Diego  County,  112  Cal.  314,  41  Pac. 
423,  44  Pac.  571. 

«OB  Havens  v.  City  of  New  York,  67 
App.  Div.  90,  73  N.  Y.  Supp.  678. 
"This  action  was  brought  to  recover 
from  the  city  the  amount  thus  paid 
by  the  plaintiffs,  they  claiming  that 
the  payment  was  of  an  assessment 
apparently  valid  and  regular  upon  its 
face;  that  it  was  in  fact  illegal  and 
void;  that  the  board  of  assessors  of 
N«w  York  had  no  jurisdiction  to  levy 
the  assessment,  or  the  board  of  revi- 
sion and  correction  of  assessment 
lists  to  confirm  the  same;  that  the 
facts  constituting  the  illegality  and 
want  of  jurisdiction  did  not  appear 
by  the  assessment  list  nor  in  the  rec- 
ord of  the  proceedings  relative  to 
said  assessment;  and  that  payment 
was  made  in  ignorance  of  the  facts 
constituting  the  invalidity  and  ille- 
gality of  the  assessment.  On  the 


trial  of  the  action,  *  *  *  the 
complaint  was  dismissed.  *  *  * 
Some  of  the  expressions  of  the  trial 
judge  in  rendering  his  decision 
would  indicate  that  the  dismissal  of 
the  complaint  was  based  upon  an 
equitable  consideration  alone.  The 
single  circumstance  that  the  plain- 
tiffs had  received  benefit  from  the 
improvement  cannot  be  effective  to 
defeat  an  action  of  this  character, 
which  is  one  at  law,  brought  by  the 
property  owner  to  recover  from  the 
city,  money  paid  by  him  upon  an  ille- 
gal assessment  under  alleged  compul- 
sion of  law,  and  to  prevent  a  sale 
of  his  property.  In  such  an  action, 
on  a  proper  showing,  a  recovery 
may  be  had  of  the  amount  of  assess- 
ment so  paid.  *  *  *  Such  an  ac- 
tion is  for  money  had  and  received, 
governed,  it  is  true,  by  equitable  con- 
siderations; but  the  one  isolated  fact 
that  a  person  has  been  benefited  by 
the  work  or  improvement  for  which 
the  assessment  is  imposed  is  not 
sufficient,  under  the  authorities,  to 
prevent  a  recovery." 

•10  Qgden  City  v.  Armstrong,  168 
U.  S.  224;  City  of  Baltimore  v. 
Hughes'  Adm'r,  1  Gill  &  J.  (Md.) 
480;  Pooley  v.-  City  of  Buffalo,  122 
N.  Y.  592,  4  N.  Y.  Supp.  450;  Poth 
r.  City  of  New  York,  77  Hun,  225, 
28  N.  Y.  Supp.  365;  Strusburgh  v. 
City  of  New  York,  87  N.  Y.  452; 
Union  Steamboat  Co.  v.  City  of  Buf- 
falo. 82  N.  Y.  351. 


LOS*  ANGELES 


